Who Wants to Know—And Why?: The Supreme Court’s Secret Purposivist Test for Exemptions from Association Membership Disclosure Laws
In the recent case Doe v. Reed, the Supreme Court announced the test for associations to get exemptions for their members from membership disclosure laws under the First Amendment. The Doe test requires an organization to “show ‘a reasonable probability that the compelled disclosure of personal information will subject [its members] to threats, harassment, or reprisals from either Government officials or private parties.’” However, the Court’s stated test is inconsistent with its membership disclosure cases, including Doe’s own dicta. In response to this inconsistency, this Note identifies the secret two-part purposivist test the Court has actually applied in its eighty years of membership disclosure case law—one that focuses only on “Government officials.” Under its actual test, the Supreme Court asks (1) whether the association deserves judicial protection from the disclosure law at issue because the government has targeted it, and (2) whether the association’s activities are economic or criminal such that disclosure is outside the realm of paradigmatic—and therefore deeply felt—First Amendment harm. This Note then argues that the Supreme Court’s secret test is more consistent with existing doctrine than its announced Doe test, once the private parties that target associations are understood to be like a hostile audience.