A nonprofit U.S. group seeking democratic reforms in China asked the Supreme Court on March 1 to protect the identities of its members and donors because actions by the Chinese Communist Party (CCP) could have lethal consequences.
“Exposure of a group’s members and donors can subject them to significant reprisals by the public and therefore dissuade further membership and donations, a fact that this Court has acknowledged when marking the freedom of association’s contours,” the group said in its brief.
“For our client and its supporters, maintaining privacy is a matter of life and death,” Kelly Shackelford, FLI’s president, CEO, and chief counsel, said in a statement announcing the brief. “In today’s ‘Cancel Culture,’ people know it’s unwise to trust our own government with their private information, let alone China. It is vital that the justices protect donors’ privacy to shield them from threats, harassment, and worse.”
The brief was filed in connection with two cases challenging a California law requiring public disclosure of members and donors to nonprofit advocacy groups that receive contributions from residents of the state.
Former California Attorney General Xavier Becerra has been nominated by President Joe Biden to be Secretary of the Department of Health and Human Services. First Liberty Institute is a Plano, Texas-based public interest law firm that specializes in First Amendment litigation.
“In adjudicating this case, this Court also should account for the modern rise of ‘cancel culture,’ and for the reprisals that domestic and foreign governments direct against those who contribute to groups that dare speak against their orthodoxy,” the brief stated.
“Among the victims of such reprisals are donors to religious ministries and charities and donors to organizations that hold foreign governments accountable for their human-rights abuses. California’s regime—and the Ninth Circuit’s mistaken approach upholding it—are insufficient to protect groups from these kinds of reprisals, just as they are insufficient to protect them from reprisals by the public.”
In the brief, FLI argued that “the First Amendment expressly guarantees the free exercise of religion, the freedoms of speech and of the press, and the right of peaceful assembly and petition, but these cherished liberties necessarily imply the freedom of association.
“As this Court has recognized, ‘effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,’ and ‘it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas’ is protected by the Constitution,” citing the landmark 1958 decision in NAACP v. Alabama.
In the 1958 case, the Court upheld the right of donors and members to the NAACP to maintain their anonymity in order to insulate them from reprisals by Democratic officials in the highly segregated state.
“Likewise, group association is vital to—and an implicit component of—the free exercise of religion,” the brief continued, citing Gibson v. Fla. Legislative Investigative Commission in 1963. “Registering as a student in a school or joining a faculty is as vital to freedom of expression as joining a church is to the free exercise of religion.”
First Amendment freedom of association, the brief argued, “would mean little if the government had carte blanche to compel the disclosure of an association’s members or donors, and this Court, therefore, has subjected such disclosures to ‘exacting scrutiny,’” citing the 1976 decision in Buckley v. Valeo.
The brief argued that retaliation can take the form of harassment, economic reprisals such as loss of jobs, physical threats, and other forms of public hostility.
Citizen Power’s founder and president, Dr. Yang Jianli, narrowly escaped capture as he witnessed the Tiananmen Square Massacre.
Following his return to China, he was imprisoned until diplomatic efforts by the international community—including the United States—procured his release. Immediately following his return to the United States, he formed Citizen Power Initiatives, which has seen at least one of its major donors imprisoned in China.
Yang has two doctorate degrees, in mathematics from the University of California at Berkeley and in political economics from the Harvard Kennedy School of Government.
China Power’s chairman is David King, who is the senior lecturer in public policy at The Harvard Kennedy School and faculty chair of the Master in Public Administration program.
