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Jon Fleischman

Free Speech Prevails; Activist AG Rebuked by Court

Despite the best efforts of Kamala Harris, the First Amendment is alive and well in California.

Federal Judge Manuel Real made that much clear recently when he ruled against California Attorney General Kamala Harris in a lawsuit brought by Americans for Prosperity Foundation. It serves as a reminder that constitutional rights can never be taken for granted, and must be defended at every turn.

Starting in 2013, Ms. Harris began arbitrarily demanding that AFP Foundation turn over a list of its supporters to her office, or the organization would basically be kicked out of the Golden State. She also threatened the organization’s officers and directors with civil penalties and fines.

Ms. Harris claimed her office needed to know who supported AFP Foundation to help police potential fraud. However, her openly hostile stance to members and supporters of free-market organizations made it highly likely this would ultimately result in harassment and intimidation by the Attorney General and her ideological allies.

In his recent ruling, Judge Real rejected Ms. Harris’s argument that having the names of supporters was necessary for law enforcement. Evidence presented at trial proved there was not “a single, concrete instance in which pre-investigation collection of a [supporter list] did anything to advance the AG’s investigative, regulatory, or enforcement efforts,” he ruled.

Ms. Harris also argued that private supporter lists disclosed to her office would be kept private, as it would only be used for internal purposes and not be shared publicly. Yet Judge Real was not convinced of this either—and abundant evidence showed he was right to be concerned.

Incredibly, Americans for Prosperity Foundation discovered more than 1,700 private donor lists had been posted on the Attorney General’s public website that had impermissibly been disclosed, including 38 that were found as the trial began. Judge Real said this showed the government “systematically failed to maintain the confidentiality of [supporter lists],” and that “while human error can sometimes be unavoidable, the amount of careless mistakes made by the Attorney General’s Registry is shocking.”

Such “careless mistakes” carry serious implications. In his ruling, Judge Real noted the “ample evidence establishing that AFP, its employees, supporters and donors face public threats, harassment, intimidation, and retaliation. . . . [T]his Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

This is a tremendous victory for the First Amendment, but more importantly the case has implications for individuals and organizations of all stripes who value the right to support causes they believe in without fear of harassment. An adverse ruling would have had a chilling effect on free speech in California, and likely encouraged similar anti-speech crusades across the country. But hyper-partisan attacks like this are not over. Ms. Harris has already confirmed she will appeal Judge Real’s ruling to the Ninth Circuit Court of Appeals, where the right to privacy and free speech will be attacked all over again.

As is often the case, Jefferson summed it up best: “Eternal vigilance is the price of liberty.”