Free Speech -- 2022



State of Washington v. Grocery Manufacturers Association   (Washington State Supreme Court)

Compelled disclosure of trade association membership

The NAM filed an amicus brief to defend the right of companies to collectively promote their public policy positions through a trade association without a state compelling the association to reveal the names of member contributors. Washington State fined the Grocery Manufacturers’ Association $18 million for allegedly violating Washington’s campaign finance laws. The alleged violation arose from GMA not publicly disclosing the names of member companies that financially contributed to GMA’s advocacy against a ballot initiative regarding food labeling. A Washington state trial court and appellate court upheld the penalty. On appeal to the Washington State Supreme Court, the NAM filed an amicus brief in support of GMA that argues that compelled disclosures must meet exacting scrutiny under the First Amendment to the U.S. Constitution, and that the penalty here fails to satisfy that scrutiny. The NAM’s brief also explains how compelled disclosures of member information can chill public policy advocacy and undermine a robust public debate on important issues.

Unfortunately, on April 16, 2020, the Court rejected the First Amendment claims, upholding the trial court's finding that GMA violated Washington's campaign-contribution laws. However, the Court remanded the case on Eighth Amendment grounds, ordering the Court of Appeals to carefully scrutinize the penalty. On remand, the Court of Appeals held that because the $18 million penalty was within the permissible statutory range, the fine was not excessive. The NAM filed an amicus brief in support of GMA's petition for review of the Eighth Amendment issue by the Washington Supreme Court, which the court granted. As NAM's briefs--both in support of the petition and on the merits--explain, a statutorily compliant penalty can still be constitutionally excessive and a court must still consider whether improper enforcement motive affected the size of the penalty. In this case, GMA's penalty dwarfs all other campaign finance penalties ever issued including toward an organization on the other side of the ballot issue who only was assessed $322,000. If allowed to stand, the penalty in this case would open the door to disproportionate penalties whenever trade groups make a mistake in complying with campaign-finance laws and happen to speak for a business organized in the corporate form. It allows the State, under guise of a statutory penalty, to silence disfavored speech. This result betrays the Constitution’s guarantee that individuals and organizations of any viewpoint can speak without fear of excessive government retaliation.

Unforturnately, on January 20, 2022, the Washington Supreme Court affirmed the Court of Appeals' decision.


Related Documents:
Opinion  (January 20, 2022)
NAM Merits brief on Eighth Amendment  (August 13, 2021)
NAM Petition brief on Eighth Amendment  (March 22, 2021)
NAM brief  (September 6, 2019)