Press Release July 1, 2021
Today, the U.S. Supreme Court (SCOTUS) issued a landmark First Amendment decision holding that Americans are free to support nonprofit organizations without fear of harassment. In 2015, a federal lawsuit was filed against then-California Attorney General (AG) Kamala Harris, who had threatened severe sanctions against the Thomas More Law Center (TMLC) if names and contact information of its major donors were not disclosed to her office.
In a 6-3 decision, the U.S. Supreme Court sided with TMLC, a leading national public interest law firm based in Ann Arbor, Michigan, in its case Thomas More Law Center v. Bonta. In doing so, SCOTUS held that California’s law requiring donor disclosure was facially unconstitutional.
“When it comes to the freedom of association,” Chief Justice Roberts wrote in the Court’s opinion, “the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough, because First Amendment freedoms need breathing space to survive.”
Richard Thompson, TMLC’s President and Chief Counsel, hailed the Supreme Court’s ruling as a “landmark victory for the First Amendment.” He said, “Today’s victory is attributable to the superb legal work of attorney John J. Bursch and the Alliance Defending Freedom (ADF) legal team who represented TMLC in the Supreme Court, as well as San Francisco-based attorney Louis H. Castoria, who singlehandedly tried the case in the federal district court against a phalanx of California assistant district attorneys.”
Bursch, ADF senior counsel and Vice President of Appellate Advocacy, said, “The Court has confirmed that every American is free to peacefully support causes they believe in without fear of harassment or intimidation.”
On March 24, 2015, then-California AG Harris threatened in a letter to TMLC that if the Law Center did not provide her office with a list of its major donors within 30 days, the Law Center could lose its right to solicit donations in California and TMLC’s officers and tax preparers could be held personally liable for any penalties. Rather than comply under threat, TMLC filed a federal case claiming the AG was violating TMLC’s and its donors’ First Amendment rights of free speech, freedom of association, and the free exercise of religion, citing the 1958 SCOTUS ruling in NAACP v. Alabama as precedent.
A 3-day bench trial was held by Federal District Court Judge Manuel Real beginning on September 13, 2016. Auditors and investigators from the AG’s office testified that they never had a complaint against TMLC; they have never investigated TMLC; and they do not normally use major donation reports to start investigations.
On November 16, 2016, Judge Real permanently enjoined the AG from requiring TMLC to file a copy of its major donor list. The AG appealed Judge Real’s decision to the Ninth Circuit Court of Appeals, which vacated the injunction. On August 26, 2019, TMLC asked the U.S. Supreme Court (petition for certiorari) to review the Ninth Circuit’s ruling. The Supreme Court agreed, and on April 26, 2021, the Court heard oral arguments on the case.
In the Internet Age, where doxing one’s opponents has led to job loss, boycotts, ostracization, and violence, the fear of such repercussions should one’s charitable contributions become public could be enough to stymy giving, leaving the personal beliefs of many Americans to go unrepresented in the public square. While TMLC is considered by the media as a conservative Christian organization, an array of organizations across the political spectrum filed amicus briefs in support of the First Amendment arguments being made by the Thomas More Law Center.
To read the full opinion, click here.
There’s more. Harris also defended California’s decision to deny a trans woman incarcerated in a men’s prison the surgery for her diagnosed gender dysphoria, arguing that the surgery wasn’t necessary.
And of course, with Black people significantly more likely to come into contact with the American criminal justice system, the positions she’s taken are in direct opposition to what racial justice and civil rights groups are fighting for. She even rejected calls from these groups to investigate deadly police shootings in Los Angeles and San Francisco, following the killing of Micheal Brown in 2014. Even though she’s been vocal about racial justice following the Black Lives Matter protests this year, she’s also been accused of frequently siding with the police unions and not pursuing aggressive enough reforms. It’s safe to say she won’t be joining in the chants to abolish the police any time soon.
“With Black people significantly more likely to come into contact with the American criminal justice system, the positions she’s taken are in direct opposition to what racial justice and civil rights groups are fighting for”
During her presidential campaign, Harris said she’d “end the wars in Afghanistan and Iraq and protracted military engagements in places like Syria, but she’ll do so responsibly”. She’s also not denounced the possibility of future US invasions, evidenced in the fact she hasn’t co-sponsored the bill which would prohibit US intervention in Venezuela. This “responsible” rhetoric echoes Barack Obama’s stance, who promised a “responsible end” to the war in Afghanistan, whilst continuing the US intervention in the region.
A Black American president didn’t stop the mass bombing of countries in the Middle East or bring an end to imperialism. Just like a partially brown Tory cabinet in the UK hasn’t suddenly reformed the immigration system or stopped the high levels of stop and search against Black communities, highlighting that representation doesn’t always equate to progress.
Another area Harris doesn’t fare particularly well in is around sex work. In 2008, she was a vocal opponent of Proposition K – a measure to decriminalise sex work – and led operations against the ‘Backpage’, a site sex workers could safely use for adverts. For someone who prides herself on fighting for marginalised groups, she made life for sex workers more difficult and risky. However, in a 2019 interview, she stated she would be open to decriminalising sex work. Harris still seems to support criminalising the act of purchasing sex, which is a position that would negatively impact sex workers, by increasing surveillance and policing around their work.
“It feels as though she’s being perceived as progressive because she’s a biracial woman, and not because of her politics”
The vice president-elect has argued that during her presidential campaign, she’s fought for racial justice reform, the reversal of incarceration and putting a stop to the death penalty. And she did manage a few policies that would be considered “progressive”, such as bringing in a scheme that would allow first time drug offenders to get an education and a job, instead of time in prison. Plus, she also refused to pursue the death penalty in a case where a police officer was shot, even when it was a widely unpopular stance.
However, we need to be careful in painting her as the beacon of progress and instead focus on her actions. It feels as though she’s being perceived as progressive because she’s a biracial woman, and not because of her politics. Yet we all know that not all Black and brown people are liberal by nature – look at Priti Patel.
Kamala Harris has made history, and that is something we should absolutely celebrate. Representation of women of colour in top positions is really great to see, and to be honest, long overdue. But representation alone doesn’t help the communities being represented if they there aren’t policies in place to support them. Black and brown faces in politics won’t solve the deep-rooted and systemic issues that people of colour face every day, especially if those faces support policies that uphold white supremacy.
As we celebrate this historic milestone, we shouldn’t lose sight of Harris’ track record. Instead, let’s hold her accountable and allow her to prove to American society that she’s fighting for progress.