RGF op-ed: A small victory for free speech — barely

The following appeared in the Santa Fe New Mexican on Apr 8, 2023.

In a small but significant victory for free speech during the recent legislative session, Senate Bill 42, a measure that would have made New Mexico’s already-hostile privacy laws for nonprofit causes even worse, was miraculously killed on the House floor. The bill already had been adopted by the Senate, so this was truly a last-ditch effort.

Current laws relating to forcing nonprofits to disclose their donors are already being challenged by the Rio Grande Foundation in court. That original law (adopted in 2019) dramatically expanded New Mexico’s campaign finance laws to cover nonprofit groups that merely mention lawmakers in their communications near an election. As a result, many organizations that have long had a voice in state policy debates would have been forced to publicly expose their supporters’ names and home addresses to the harsh light of public scrutiny.

That’s a major violation of personal privacy and a threat to free speech. Americans who have their identities, locations and support for social causes exposed can suffer harassment and retaliation for their beliefs. Privacy-conscious citizens may send their donations elsewhere instead of supporting New Mexico-based causes. Many nonprofits will self-censor to protect their supporters.

The result may be a win for some politicians since many critics of their ideas and voting records will be silenced. But it’s a loss for nonprofits, New Mexicans who support them and free speech throughout the state.

The Supreme Court has consistently struck down laws that chill the speech of nonprofit advocacy groups by publicly exposing their members and supporters. It has upheld laws that require candidates, political parties and other groups formed to elect or defeat candidates to disclose their contributors, but New Mexico’s law reaches far beyond elections and imperils speech about public policy. That’s where it runs into trouble with the Constitution.

SB 42 was like the current law but on steroids. It would have made it explicit that donors who support nonprofits for any purpose, not just a political purpose, must be exposed. That requirement would have created disclosure reports filled with junk. For most nonprofits, commenting on ongoing debates in the Legislature is only a small part of what they do. Their general donors may not know about or even agree with the messages they are publicly listed as funding.

For this reason, SB 42 could have been found unconstitutional even if New Mexico’s current law survives in the courts.

In the age of cancel culture, New Mexico is moving in the wrong direction. People deserve more control over their personal information, not less. They deserve more protection from being targeted and attacked for their beliefs, not to be thrown to the wolves.

In poll after poll, Americans admit they are afraid to speak openly about their views on issues as basic as their preferred presidential candidate. Plastering citizens’ donation records to nonprofits on the internet will not create accountability. It will enshrine cancel culture into New Mexico law.

Despite an ongoing legal battle, the New Mexico Legislature has only paused its ongoing efforts to put privacy and free speech at risk. SB 42 was another overreach and another lawsuit waiting to happen. Thankfully it was narrowly killed, but we’ll undoubtedly face similar threats to free speech next year.

Paul Gessing is president of the Rio Grande Foundation, an Albuquerque-based think tank focused on the importance of individual freedom, limited government and economic opportunity.