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Free Speech Blacklists Pose a Threat to Democracy


Many second amendment supporters fear that one day, gun control advocates will use state gun registries as a shopping list to find and steal all the privately-owned guns. These fears seem well-founded, especially in light of recent comments by certain candidates for the presidency. But there is another kind of registry we should be just as concerned about: free speech registries. Does that concept sound familiar? Perhaps not. It’s terrible branding, if you're a proponent of such measures. Much better to stoke public fears with words like “dark money.” But make no mistake, when politicians and special interest groups talk about donor disclosure for nonprofits, this is what they envision – a list of people against whom they can retaliate for speech they dislike – a blacklist. 

When a nonprofit interferes with your grand political scheme, it’s easier to bully their individual donors than it is the full time employees. Employees don’t have to fear for their employment if they expound unpopular views - they are paid to do so. But people who agree with those views and just want to take part by becoming “members” of an organization are relatively easy to intimidate. Organization employees were also aware when they took the job that they would be in the spotlight, and may be the focus of unflattering publicity. Donors and members likely have very different expectations - namely that they will have the right to disclose their membership or their giving to friends and family, or the right to keep their charitable causes private. They may be punished by an employer for creating bad press. They may be ostracized in their community. 

This issue should not be confused with campaign contribution disclosures. If it were up to me, I would allow unlimited donations to any candidate so long as it was disclosed. I don't care if a candidate is backed by a single, large donor. I do care if they are secretly backed by one or a few large donors. But that isn’t the issue here. True issue advocacy (think Heritage Foundation, the ACLU, or Oklahoma Second Amendment Association) should not require disclosure of donors. These citizens have a fundamental, God-given right to speak. These are the government watchdogs - those who root out corruption.  

This is not a partisan issue, it's a power issue. Nationally, one party tends to favor free speech registration, while the other tends to fight it, but on the state and local level, you are more likely to see tyrannical proposals in states where one party has a supermajority - regardless of which party that is. In more balanced states, legislators are able to recognize that organizations with similar ideologies are just as likely to be in the crosshairs. In one-party states, it becomes tougher to imagine that these ill-thought-out laws could be turned on any organization, including those allied with the party in power. But state politics can turn on a dime. Virginia was long a bastion of second amendment freedom. But just this term they have seen multiple proposals for gun control, and many of them seem likely to pass. Would NRA members want to live in a state where both their second AND their first amendment rights were under threat? 

Make no mistake: once the government has a list of names, it is quite easy for it to be misused by individuals with a grudge, or governments that brook no opposition. California sheriffs in the more conservative inland portion of the state have been forced to disclose the names of concealed carry permit holders under open records requests by the San Francisco Chronicle. In Arizona, the state department of education “inadvertently” released the names of Educational Savings Account recipients. Federal agents unmasked the identities of over 16,000 “U.S. persons” swept up in FISA surveillance operations in 2018. Free Speech Registry proponents want to use fear to spur onerous government regulation. Sound familiar? 

Mike Davis is Research Fellow at 1889 Institute. He can be reached at mdavis@1889institute.org.

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

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