July 1 wasn’t a good day for statists.

The Supreme Court’s July 1 decision striking down particular California speech-disclosure law has implications way beyond the law struck down, and way beyond California.

The Americans for Prosperity Foundation and the Thomas More Law Center challenged California’s requirement that they, as nonprofit organizations, disclose names of major donors.

How did California seek such disclosure? By requiring such organizations to turn over a document they file with the Internal Revenue Service.

In tax parlance, this is Schedule B to IRS Form 990.

The court recalled that both organizations, concerned for their donors’ anonymity, said California’s disclosure requirement “would make their donors less likely to contribute and subject them to the risk of reprisals.”

Chief Justice John Roberts, in part of a decision joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, recalled a 1958 Supreme Court decision involving compelled disclosure of membership lists of the National Association for the Advancement of Colored People, or NAACP. The court held that “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as (other) forms of governmental action.”

Although the six justices debated without resolving which of two levels of constitutional scrutiny should apply to disclosure requirements, or particularly the disclosure requirement at issue here, the six justices added something new to the lower of the two scrutiny levels.

Even under the lower of the two scrutiny levels, disclosure law must be not only substantially related but also narrowly tailored to a sufficiently important government interest.

Yes, that sounds like inside baseball. And it largely is.

Yet it matters. Why? Because it establishes an additional – or at least a higher – First Amendment-based hurdle that government must clear to compel disclosure. In short, “narrowly tailored” requires a tighter fit than “substantially related.” This tighter “narrowly-tailored” standard makes it harder for government to compel disclosure.

And here it means California violates the First Amendment by compelling organizations such as the Americans for Prosperity Foundation and the Thomas More Law Center to disclose their major donors.

There’s much more to this decision, not all of which can fit into this column.

¯ In their briefs, both organizations sought to distinguish the law affecting them from political-speech-disclosure law. In so doing, they understated how the First Amendment protects political speech and did so in ways that, if they had become Supreme Court holdings or even dicta, could have had the effect of undermining First Amendment rights to political speech.

The court, however, didn’t take this path. That’s significant too. The court’s decision doesn’t undermine First Amendment rights to political speech.

¯ So why does California want organizations such as the Americans for Prosperity Foundation and the Thomas More Law Center to disclose their major donors?

One reason is that “California’s interest is less in investigating fraud and more in ease of administration. This interest, however, cannot justify the disclosure requirement,” the six justices said. California’s attorney general “may well prefer to have every charity’s information close at hand, just in case. But ‘the prime objective of the First Amendment is not efficiency.’ Mere administrative convenience does not remotely ‘reflect the seriousness of the actual burden’ that the demand for Schedule Bs imposes on donors’ association rights.”

This principle is not new.

In 1983, for example, the court explained why neither law’s efficiency, nor its convenience, nor its usefulness can “save it if it is contrary to the Constitution. … With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”

Again, July 1 wasn’t a good day for statists.

But it may have been if the 2016 presidential election had come out differently and if Gorsuch, Kavanaugh, and Barrett had not been on the court.

Dr. Randy Elf’s Supreme Court brief in this action is at https://works.bepress.com/elf/84.

COPYRIGHT ç 2021 BY RANDY ELF.