“Cancel Culture … Is Inconsistent with the Philosophy of Open, Political Debate”

Federal Election Commission and Wisconsin Family ActionJudge William Griesbach, E.D., ruled yesterday. Wis.), the WFA—”a non-profit organization whose mission is to advance Judeo-Christian principles and values in Wisconsin by strengthening, preserving, and promoting marriage, family, life, and liberty”—sued to “enjoin the FEC from forcing WFA to disclose … any contributions other than those that are earmarked for specific independent expenditures expressly advocating the election or defeat of an identified candidate for Federal office.” First Amendment’s right to expressive association was discussed. This often involves anonymity.

Appling notes also that WFA staff had their cars keyed and their tires slit when they were located in Madison. Appling claims that WFA is subject to harassing messages on social media. She also provided some examples of WFA’s September 2021 Facebook comments after WFA had promoted a book. WFA gets abusive voicemails she asserts. One voicemail that was left in September 2020 by a caller who didn’t identify himself stated that WFA shouldn’t “go f—yourself”, that WFA would “burn to hell,” and that WFA employees “should eat s—” and then “die —.” WFA supporters also reported that yard signs that promoted traditional marriage were destroyed by an affiliate of WFA and their cars were slit.

FEC, Citing NAACP v. Alabama(1958) asserts that WFA’s vague examples “does not remotely increase to the level or harassment sufficient for an exception from the generally applicable disclosure policy.” In NAACPAccording to the group, it had made “an uncontroverted demonstration that at past occasions disclosure of the identities of its rank-and file members was possible.” [had]These members were exposed to economic repudiation, job loss, threats of coercion and other forms of hostility. This record also included evidence of “series bombings, shootings”, and other major acts violence. WFA does not cite harassment as an example of violence, but the examples WFA has provided are of harassment. NAACP v. AlabamaTo chill speech, you don’t need to have actual acts of violence.

FEC claims that WFA did not show that harassment was related to campaign finance disclosures. It also states that harassment targeted WFA staff members after WFA took actions that were consistent with their stated purposes. The FEC supports this argument by pointing to publicly filed Wisconsin campaign finances reports for Wisconsin Family Action PAC, 2010-2021. These lists names and addresses as well as WFA’s campaign finance reports, 2016-2021. WFA has not provided any examples of retaliation in response to its state-law disclosures, the FEC states.

WFA’s state filings reveal that almost all the $25 donations it disclosed were not disclosed. Many of those that it has reported have not been willing or able to disclose their employer or occupation. It could be because they fear retaliation, or simply because they are retired, and therefore no longer susceptible to intimidation at work. WFA cited harassment reports from WFA supporters, even though it was true that WFA presented a lot of evidence of harassment by employees.

Although WFA may have disclosed few small donors, it does not mean they are immune to harassment. Appling states that over time, donors advised WFA not to disclose their names because it would threaten their family or business. WFA has no reason to believe that donors with the same beliefs as WFA will be treated differently.

In BuckleyIt was cautioned that it is not appropriate to demand “unduly stringent proofs” of harassment in order to exempt unpopular and minority groups from the legal obligation of disclosing their donors. The Court was concerned that asking donors to provide affidavits detailing their identities in fear of reprisal would be counterproductive to the goal of nondisclosure. It noted that such parties must have sufficient freedom to show injury and ensure fair consideration of the claim. According to the Court, evidence supporting exemption “must show only that there is a reasonable possibility that the disclosure of contributors names by a party will expose them to harassment or threats from government officials or private individuals.” The type of evidence sufficient for success on an as-applied challenge includes “specific evidence” of “past or current harassment of members due their associational connections or harassment directed at the organization,” or “patterns of threats and specific manifestations public hostility.” Additionally, there is “[n]Parties with no past may have evidence that they were subject to threats and reprisals against people or groups who hold similar views.

The risks of disclosing donors’ participation to constitutionally protected speech are increasing in some cases and for specific groups. BuckleyThe case was upheld. Justice Thomas observed that “the internet has enabled prompt disclosure of expenditures which gives political opponents the information they need to incite and retaliate” against their enemies. Since then, the Internet’s accessibility and “cancel culture,” have been major advances. Buckley. Cancel culture refers to the aggressive targeting of individuals and groups whose views aggressors consider unacceptable in order to eliminate them professionally or personally. Today’s dominant force, cancel culture, doesn’t align with open political debate. It undermines First Amendment rights and suppresses them.

Certain groups are clearly opposed to WFA’s values and mission. Many people find offensive and repulsive the deep-rooted beliefs and customs about human sexuality and marriage that have been the basis of Western civilization’s history for hundreds of years. Justice Thomas provides an account of “real-world” examples of intimidation and retaliation that groups holding similar views to WFA suffered throughout the country. Citizens United v. FEC(2010) (Thomas J., concurring and dissidenting in parts) (observing that Proposition 8 was opposed to by some). [California’s referendum on “same-sex marriage”]Created websites that show the exact locations of Proposition 8 supporter’s homes and businesses; customers and supporters suffering physical injuries or threats of death; supporters getting mail with a powdery white substance to their mailboxes; and supporters being fired from their employment positions. A person who wishes to take part in politics shouldn’t have to risk their personal or professional ruin. Check out id.“I can’t endorse the First Amendment which makes it possible for citizens to be subjected to death threats or ruined careers or property damage or destruction, or even preemptive and threatening letters, in order that they engage in core political speech, the main object of First Amendment protection .”).. Inviolability of privacy within group associations may be essential to the preservation of freedom and association. This is especially true if a group holds dissident views. NAACP v. Alabama.

WFA believes that the FEC’s current guidance would require WFA to disclose its donors. This is because WFA claims it will adversely affect WFA and its members ability to “continue their collective effort in foster belief, which they admitly have the right of advocating.” The disclosure requirements arguably called for under the FEC’s current guidance, WFA contends, would chill the exercise of the constitutionally protected rights of WFA and its donors, and thereby threaten WFA’s existence, unless WFA declines to make any independent expenditures of more than $250 in the coming elections….

However, the court found that FEC only believes that, “A non-political group, like WFA,” that spends independent of $250 cannot disclose donors whose donations are used for political purposes or are linked to an election. The donor does not need to be disclosed if there is no tie or earmark. These are the other things.

WFA is a non-stock, nonprofit corporation that was established under Wis. Stat. § 181 and exempt from federal income taxation under I.R.C. § 501(c)(4). WFA does not operate as a “independent expenditure” or political action committee. WFA participates in educational activities that educate voters on topics related to the mission of WFA and candidates on these issues. WFA’s educational activities are carried out via mail, emails, texts, flyers or direct mail. WFA has a typical budget of around $800,000. Its annual spending never exceeds $1 million. Appling states that WFA doesn’t designate donations to any particular purpose. WFA donors, according to Appling, have not indicated to me that they are supporting a candidate or a political party with their gifts. WFA uses the donations it receives. WFA doesn’t pass money on to any other organization. WFA also doesn’t collaborate with any candidates or campaigns. They have no plans to change these policies.

If, as WFA contends, none of its donors earmark their contributions for a political purpose tied to a particular federal election, then it appears clear that the FEC will not seek their disclosure….

However, this does not mean that the FEC cannot request disclosure from WFA’s donors in certain circumstances. WFA’s motion was argued by the parties. It is possible for a contribution to be earmarked to political purposes or tied to an election depending on whether it is in response a solicitation. WFA has not made clear in its complaint or moving papers what solicitations it plans to send potential donors. As a result, it is not possible for the FEC to say at this point whether donors responding to such solicitations should be disclosed….

WFA is not able to demonstrate that its First Amendment rights, and the donors it represents, would be affected by a denial of its request for a preliminary order. WFA claims it doesn’t have to stop spending $250 more on its independent expenditures to keep the donors anonymous. While the solicitation of donations may be timed and written in a way that triggers a disclosure obligation to donors, it isn’t sufficiently detailed to allow WFA to request the relief requested.