Critics of Justice
Clarence Thomas
are working overtime to cancel him. That’s no surprise. A longtime thorn in the side of
liberal
causes, Thomas has evoked a particular hatred from the proponents of
cancel culture
since he put them on notice over a decade ago.
Thomas not only blasted their unseemly tactics, but he tried to do something about them. In a concurring opinion in the 2010 case Citizens United v. FEC, Thomas called for stronger privacy protections to fight this toxic trend.
CRUZ SAYS THOMAS SUBJECT TO ‘RACIST VITRIOL’ IN SUPREME COURT ETHICS HEARING
The core of Citizens United was not about privacy at all. The case primarily concerned a nonprofit group’s ability to promote and distribute a documentary criticizing Hillary Clinton. But the Supreme Court also reaffirmed by an 8-1 margin its past decisions allowing certain invasions of privacy when citizens contribute to a campaign for election. The lone holdout was Thomas.
Terms such as “cancel culture” and “doxxing” were still years away from catching on, but Thomas described something almost identical. He wrote of political activists using new internet tools to wreak havoc on the lives and careers of ordinary people. He told the stories of everyday people who had lost their jobs, reputations, and even their sense of safety after supporting a California ballot proposition on traditional marriage in 2008.
“Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters,” Thomas
warned
. “Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. … The success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights.”
The risk of harassment and retaliation may be even higher today, thanks to our hyperpolarized political climate. A majority of people hold political views they
do not feel comfortable
sharing and
believe
that our growing culture of silence and intimidation is a problem.
Fortunately, our history offers solutions. In 1958, the Supreme Court ruled that the NAACP could conceal its members’ names and home addresses from state officials in Alabama. The court
noted
that disclosing this sensitive personal information would result in NAACP members suffering “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”
That precedent was reinforced and strengthened in subsequent cases. The court struck down laws forcing political pamphlets to list who sponsored them or public school teachers to report what organizations they belonged to. Causes on the Right and the Left benefited from the ability to meet and speak with one another in private.
In the 1970s, however, the court muddied the waters by upholding laws requiring political campaigns to expose their donors’ names, home addresses, occupations, and employers publicly. It opened the door to new efforts by politicians and activists to pry into the private affairs of citizens.
“Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights,” Thomas
explained
in his Citizens United concurrence.
“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or preemptive and threatening warning letters as the price for engaging in ‘core political speech, the primary object of First Amendment protection,’” he concluded.
Thomas may have been alone in 2010, but his colleagues appear to be coming around. In 2021, the Supreme Court took its biggest step in generations toward shoring up the privacy of people who join or support nonprofit causes. Hundreds of nonprofit groups representing causes from across the ideological spectrum
filed briefs
in support of the court’s ruling in Americans for Prosperity Foundation v. Bonta.
Since then, numerous states have taken up the call by reforming their privacy laws to fight against cancel culture. No wonder its proponents are turning their tactics against Thomas. His arguments are starting to win.
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Luke Wachob is the senior director of communications and policy at People United for Privacy Foundation.
