​Donor privacy is under unprecedented threat across the country. According to a report last month from the non-partisan People United for Privacy, efforts to curb historical privacy protections are underway in no fewer than 31 states.
 
Matt Nese of People United for Privacy details this threat in a recent RealClear Policy piece, describing the means by which politicians of all political stripes ceaselessly endeavor to dox nonprofit donors, often under the guise of curbing the influence of “dark money” or foreign sources of funding. In practice, it’s rank-and-file domestic contributors – exercising their fundamental speech rights – who end up being harmed the most by such efforts.
 
Look no further than Arizona’s Prop 211, the misleadingly titled “Voters Right to Know Act.” That measure was marketed as requiring disclosure of political “campaign” donors. Instead, it targets any group that speaks out on public policy issues – including nonprofits. It opens the door not just to self-censorship by those who may otherwise be inclined to donate to a cause, but also the possibility of doxing, intimidation, harassment, and cancellation.  
 
Multiple legal challenges to Prop 211 are ongoing. Should these challenges make it to the U.S. Supreme Court, history suggests it’s unlikely the justices will uphold the law.
 
The Court first established our bedrock principle regarding donor privacy and the First Amendment in 1958 when it struck down a State of Alabama requirement that the NAACP reveal its donors. That potential for compelled disclosure would almost certainly have led to “harassment, economic reprisal, and physical harm” – danger enough for the Court to act to protect the First Amendment.

Such reasoning carried through to 2021 when the Supreme Court struck down a California requirement for compelling donor disclosure for nonprofits. In the majority opinion, Chief Justice John Roberts noted “that it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on free­dom of association as [other] forms of governmental action.”
 
The 2021 ruling hasn’t dissuaded the political class from continuing to push the boundaries when it comes to donor privacy. In Hawaii, SB 997 would require donor disclosure in the case of “[c]ommunications that advocate or support the nomination, opposition, or election of a candidate, regardless of whether the communication expressly advocates the election or defeat of a candidate.”
 
In Washington, legislation is being developed purporting to ban so-called “foreign influenced” entities from participating in the political process if so much as 1 percent of their equity is owned by a foreign interest. Currently, foreign participation in elections is illegal; this is a clear attempt to curb the speech rights of Americans – and particularly non-profits who may rely on donations from large corporations.
 
In these states, the war on donor privacy is not yielding to well-established precedent. This nationwide campaign is predicated on the not-unlikely hope that enough assaults will exhaust the courts and strip donors of privacy, bringing cancellation policies and doxing to donors of all stripes.
 
Protect The 1st will continue to monitor these threats to the privacy necessary to protect free speech in America.

The Becket Foundation is seeking to restore the ability of Mike and Kitty Burke to foster children in Massachusetts. As PT1st observed last year, the state blocked the Burkes from participating in the state foster program because they hold traditional Catholic views on gender and sexuality. The problem with the Burkes, the social worker wrote in her report, is that “their faith is not supportive, and neither are they.”
 
But is that fair?
 
The state enforces this policy despite the more than 1,500 unplaced minors in the system, some living in hotels. Blocking traditional religious couples from participating in a program that sorely needs more foster parents is just asking for children to grow up in a system, not a family. It sets a worrying precedent that millions of religious Americans can be blocked from state programs simply for holding traditional religious views. Watch this compelling video from Becket:

​The recent House passage of a bill to force the sale of TikTok from its Chinese parent company – or suffer an outright ban – triggers obvious questions about the First Amendment. Many of our fellow civil liberties organizations have come to TikTok’s defense, making the point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel.
 
They point to many of TikTok’s strongest critics, who accuse it of pushing China’s line on sensitive issues and dividing Americans in what promises to be an especially heated election season. But our civil liberties allies remind us that the First Amendment protects all speech, no matter how divisive, even if it echoes foreign propaganda. That is fine as far as it goes, but there are other issues beyond the First Amendment in the TikTok debate.
 
Here is where we break ranks with some of our peers: We see real danger in TikTok’s accumulation of the personal data of its 150 million American users, and 67 percent of U.S. teens – and how TikTok’s influence could harm the First Amendment by threatening the freedom of the press and the speech of users. After reviewing results from a year-long, bipartisan investigation, the House concluded that TikTok is being used by Beijing to spy on American citizens.
 
TikTok’s parent company, ByteDance, has had a notorious relationship with the Chinese Communist Party (CCP). As we wrote last year, the Department of Justice and FBI have been investigating ByteDance over CCP access to Americans’ data. According to Emily Baker-White, a Forbes reporter who was herself surveilled by ByteDance, the department and U.S. Attorney for the Eastern District of Virginia have hit the Chinese firm with subpoenas about its purported surveillance of U.S. journalists. The company’s data policies have led multiple states to ban the app on state employee devices.
 
It would be a flagrant violation to ban a newspaper for its content. But what if a hostile power deliberately manufactured newspapers with arsenic dye, toxic to the touch? In such a case, First Amendment issues would be irrelevant. ByteDance is compelled by Chinese law to share all its data with the Beijing government, and its military and intelligence agencies. Senators should determine whether the toxicity of the threats posed by TikTok's data practices and its relationship with the CCP necessitate action.
 
This is not the first time the United States has forced a Chinese company to divest a social media platform. In 2020, the Committee on Foreign Investment in the United States raised the alarm about Kunlun Tech’s acquisition of Grindr, a popular LGBTQ dating app. The app already had a poor reputation for data security, but the committee was reportedly worried that the Chinese government could use personal data from the app to blackmail U.S. citizens, including government officials. The committee gave Kunlun a deadline by which it had to sell Grindr, and the app was sold back to an American owner.
 
Forcing a media outlet to sell or go out of business is a drastic action, not to be undertaken lightly. But as the Senate debates, we should keep in mind that there are issues at stake in the TikTok controversy that go beyond the First Amendment.

​The U.S. Supreme Court recently set aside a Fourth Circuit decision in Speech First v. Sands, declining to wade into a snowballing collection of campus speech controversies. Washington Post columnist George Will called this a “passive dereliction of duty.” We wouldn’t go that far. Given the ongoing circuit split regarding campus speech policies, the Court will have to address the issue eventually. They may just need a better avenue – or moment – for doing so.
 
This case concerns Virginia Tech, which created a “Bias Intervention and Response Team” policy that encourages students to anonymously report to school officials any perceived expressions of bias amongst their cohorts, after which the accused may be referred for discipline. Virginia Tech defined “bias incidents” as “expressions against a person or group” based on “age, color, disability, gender, gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.”
 
In 2021, advocacy group Speech First sued Virginia Tech on behalf of several students, arguing that the policy unconstitutionally chills speech by creating “a literal speech police” and forcing students to self-censor. The Fourth Circuit ruled for the university in May, siding with the Seventh Circuit (which ruled similarly in another case) and against the Fifth, Sixth, and Eleventh Circuits (which found that campus policies chilling speech constitute sufficient harm to support standing).
 
Speech First estimates that more than 450 colleges have bureaucratic thought police operations similar to Virginia Tech’s – though, likely expecting a negative result in the Supreme Court, Virginia Tech recently modified its policy, leading to the March 4 holding, rendering the controversy moot.
 
Still, Justices Thomas and Alito didn’t hold back in their dissenting opinion urging a resolution in the circuit split. Thomas writes:
 
“This petition presents a high-stakes issue for our Nation’s system of higher education. Until we resolve it, there will be a patchwork of First Amendment rights on college campuses: Students in part of the country may pursue challenges to their universities’ policies, while students in other parts have no recourse and are potentially pressured to avoid controversial speech to escape their universities’ scrutiny and condemnation. We should grant certiorari to resolve this issue.”
 
Until the Court acts, colleges and universities in much of the country will be free to pursue Orwellian surveillance operations against students who fail to embrace predominating dogmas. When another case ripens, the Supreme Court should step in.

​The U.S. Supreme Court heard oral arguments Monday in Murthy v. Missouri, a case addressing the government's covert efforts to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies reportedly engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise.
 
The case arose when Missouri and Louisiana filed suit against the federal government arguing that the Biden Administration pressured social media companies to censor certain views. In reply, the government responded that it only requested, not pressured or demanded, that social media companies comply.
 
Brian Fletcher, U.S. Principal Deputy Solicitor General, told the Court it should “reaffirm that government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action.”
 
This argument seems reasonable, but a call from a federal agency or the White House is not just any request. When one is pulled over by a police officer, even if the conversation is nothing but a cordial reminder to get a car inspected, the interaction is not voluntarily. Social media companies are large players, and an interaction with federal officials is enough to whip up fears of investigations, regulations, or lawsuits.
 
In Murthy v. Missouri, it just so happens that the calls from federal officials were not just mere requests. According to Benjamin Aguiñaga, Louisiana’s Solicitor General, “as the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The District Court which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.”
 
At the heart of Murthy v. Missouri lies a fundamental question: How far can the government go in influencing social media's handling of public health misinformation without infringing on free speech? Public health is a valid interest of the government, but that can never serve as a pretense to crush our fundamental rights. When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship.
 
Transparency is the missing link in the government's current approach. Publicly contesting misinformation, rather than quietly directing social media platforms to act, respects both the public's intelligence and the principle of free expression. The government's role should be clear and open, fostering an environment where informed decisions are made in the public arena.
 
Perhaps the government should take a page from Ben Franklin’s book (H/T Jeff Neal): “when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter …”
 
Protect The 1st looks forward to further developments in this case.

​A case from Grants Pass, Oregon, presents a compelling study and examination of the role that religious charities play in helping the helpless.
 
In 2018, a group of homeless people sued the City of Grants Pass over its municipal ordinances – and hefty fines – meant to prohibit sleeping on public land. Specifically, the group alleged violations of the Eighth Amendment, which bans “cruel and unusual punishment.” In 2023, the Ninth Circuit Court of Appeals ruled for the plaintiffs using its own particularized formula that bans the prosecution of homeless people if there “is a greater number of homeless individuals … than the number of available” shelter beds. At the same time, the court relied on precedent asserting that shelters with a “mandatory religious focus” could not be included in their calculations due to possible violations of the Constitutional prohibition against the establishment of religion.
 
Whatever one thinks of the underlying issue about rights and responsibilities regarding homelessness, the Ninth Circuit’s disregard for religious charitable organizations shows a broader legal hostility towards religion itself. Worse, it discounts religious institutions’ many contributions to social welfare and safety.
 
In 1971, the Supreme Court held in Lemon v. Kurtzman that state statutes do not violate the Establishment Clause if they: 1) have a secular purpose 2) do not advance or inhibit religion, and 3) do not result in “excessive government entanglement” with religion. The test was used repeatedly as a means to disenfranchise – or entirely disregard – religious institutions that contribute to the public good. 
 
In 2022’s Kennedy v. Bremerton School District, U.S. Supreme Court Justice Neil Gorsuch instructed lower courts to ignore Lemon, instead directing them towards a historical analysis that takes into account what was understood as a religious “establishment” when our nation was founded.
 
Unfortunately, this guidance is largely disregarded across the United States. As the Becket Fund writes, “[f]or decades, the Lemon test had caused courts to incorrectly apply the Establishment Clause, driving religious people and religious ideas out of public life. Even though Lemon was overturned, many lower courts, including ones within the Ninth Circuit, continue to rely on it.” Becket’s amicus brief before the U.S. Supreme Court, which is set to review the case soon, urges the justices to “reiterate that courts should apply a historical test” when deciding on Establishment Clause violations.
 
Much is at stake behind this seemingly esoteric legal issue.
 
Religious institutions unquestionably have always had and continue to have a major role in providing a social safety net in the United States. Continuing to rely on the Lemon test, which categorically excludes religious organizations from public life due to their “overall religious atmosphere,” is a gross overextension and misinterpretation of the First Amendment’s Establishment Clause. As the Becket Fund notes, it “confuses private and state action” when it comes to making distinctions about religion. Overall, this ruling is indicative of widespread local government dismissal of, or even hostility toward, the social contributions of people of faith.
 
If a theocracy is one extreme the courts wish to avoid, a secular lack of acceptance for religious pluralism is the opposite extreme. Governments should welcome religious institutions that provide social safety nets. And it starts with the rejection of a reactionary, overruled legal doctrine that discredits the civic contribution of religious charities.

Gene Schaerr, our general counsel, co-authored a piece in The Dallas Morning News with Seth Stern, the director of advocacy for Freedom of the Press Foundation and a First Amendment lawyer, on The PRESS Act. 

The PRESS Act is the strongest federal “shield” bill for journalists ever introduced. Not only would it stop the government from compelling journalists themselves to burn sources, but it would also bar officials from surveilling phone and email providers to find out who is talking to journalists. 

​The Ninth Circuit Court of Appeals’ ruling against the Apache Stronghold, unless overturned, will allow the Apache’s Oak Flat religious site to be destroyed by a private mining company.
 
These lands have long been recognized by the U.S. government as the singular, sacred site of the Apaches’ worship. Set to be transformed into a crater twice as deep as the Washington Monument, not only is Oak Flat in danger of being destroyed, but with it the religion that centers around that site.
 
The least we can say is that this one was painfully close, a 6-5 split decision. The Ninth Circuit asserted that the transfer of this land, revered as the center of the Apache religion for centuries, did not (somehow) even trigger an inquiry under, much less violate, violate the Religious Freedom Restoration Act. That Act requires strict scrutiny of any law that burdens religious freedom. Judge Mary H. Murguia issued a stinging rebuke of the majority in her dissent:
 
“We are asked to decide whether the utter destruction of Chí’chil Biłdagoteel, a site sacred to the Western Apaches since time immemorial, is a ‘substantial burden’ on the Apaches’ sincere religious exercise under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to bb-4. Under any ordinary understanding of the English language, the answer must be yes.”
 
Unless the U.S. Supreme Court grants cert. and overturns the Ninth Circuit’s unduly narrow conception of what constitutes a “burden” on religion, the Oak Flat religious site will become one of the nation’s largest copper ore mines, the result of a midnight deal in Congress. This scenic place of worship will become an ugly pit.
 
What was the reasoning of the majority? This en banc decision relied on a U.S. Supreme Court case, Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), which held that government disposition of property does not violate the Free Exercise Clause so long as it “compels no behavior contrary to … belief.” It is doubtful that the Ninth Circuit’s broad reading of that statement remains valid, if it ever was. If barring people from entering a place of worship under COVID restrictions raises serious free exercise problems, it is hard to see how completely destroying a religion’s essential place of worship does not at least impose a burden sufficient to trigger strict scrutiny under RFRA.
 
People of all faiths should be concerned that the circuit court took such a miserly view of the free exercise of religion. Imagine the outcry from Catholics if the government decided to turn the Basilica of the National Shrine of the Immaculate Conception into dust. Or the outcry of American Jews if a midnight deal in Congress targeted the Touro Synagogue in Rhode Island – the oldest still standing in the United States, and where George Washington welcomed Jews into the heart of America – to become a seemingly bottomless pit. The notion that such acts would not even “burden” the exercise of religion goes well beyond the implausible and into the absurd.
 
We hope the Justices of the Supreme Court dwell on the words of our first President, who famously wrote to the congregants of the Touro Synagogue: “Every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.” Can we say that is true for everyone in our country now? To again quote the dissenting judges, “the destruction of the Apaches’ sacred site will prevent worshipers from ever again exercising their religion.”
 
Luke Goodrich, senior counsel at Becket who represented the Apache, tweeted: “We fully expect SCOTUS to take this case, confirm the plain meaning of federal law, and hold that Native Americans are entitled to the same protection of their religious freedom that every other American enjoys.” Protect The 1st is also hopeful the Court will see that the Apaches’ free exercise of religion is inextricable from the preservation of this uniquely holy place.
 
For the Supreme Court to review this case would be a prayer answered.

​While the political momentum behind school choice in Texas accelerates, Alabama just became the eleventh state to embrace universal school choice.
 
Alabamians will soon be able to create Educational Savings Accounts that will apply $7,000 in tax credits per student toward private-school tuition or other educational expenses. This program, aimed first at low-income families with a $100 million a year contribution from the state, will soon expand availability to all Alabama families. Universal school choice programs like this one give parents a powerful way to exercise their First Amendment rights by expressing their values across generations.
 
Alabama’s turn to school choice is also a heartening sign for Texas, which has long struggled over passing a universal school voucher program. The Alabama Legislature, like that of Texas, had recently allowed school choice to die. This turnabout in Montgomery, Alabama, shows that the desire for school choice by families is too strong to be resisted by a few holdouts in Austin, Texas. At least 9 of those holdouts in Texas lost their seats in the recent Republican primary election. That election, Gov. Greg Abbott declared, is an “unmistakable message from parents.”
 
Here's to seeing the Lone Star State – the second-most populous in the nation – become number twelve in the universal school choice movement.

​School choice continues roll across the country. Since 2021, ten states have passed universal choice measures, with more states moving in that direction way.
 
In Texas, school choice met its Alamo in the Texas Legislature late last year. But Texans remember the Alamo with fondness because only a few weeks after that tragedy, Texans won their independence. And so it has been for school choice. In the recent slate of elections, it was six of the anti-school choice incumbents who were ousted. Four are currently fighting to retain their seats in a runoff.  
 
Their winning challengers were endorsed by Texas Gov. Greg Abbott, who aims to work with the new legislators to push through his plan for education savings accounts for the over five million K-12 students in the nation’s second most-populous state.
 
Why did the legislators, conservative and rural Republicans, stop school choice in the first place? They were worried that school choice would divert funds away from their rural public schools. This is an understandable fear for counties with small populations and scant resources. Gov. Abbott promised extra resources for these areas. These fears were further allayed by Tom Newell, a former Republican Oklahoma legislator whose timely op-ed in the Wall Street Journal called on rural Republicans to embrace school choice.
 
Newell wrote that parents, teachers, and politicians are often afraid to speak out in favor of educational freedom, lest they attract the wrath of the local superintendent or teachers’ union representative. When Newell announced his candidacy, he wrote that “a consultant told me I couldn’t support education freedom and get elected in rural Oklahoma.” Nevertheless, Newell campaigned on educational freedom and won with 61 percent of the vote. “There’s a silent majority of parents who know education freedom is good for their kids. Empowering those parents will help, not hurt, your re-election.”
 
It is easy to see why. Competition is proven to drive educational success. School choice is also the ultimate, intergenerational expression of the First Amendment, giving parents the power to choose to extend their values and heritage across generations.
 
Over 70 percent of Americans support school choice. Minority voters take the lead, with 83 percent of Black and 77 percent of Hispanic voters registering their support. Once the strongest bloc of opposition to school choice, 68 percent of Democrats support school choice. Pennsylvania Gov. Josh Shapiro declared that school choice is important because “every child of God” deserves a “quality education.”
 
More than 180 Democrats holding office at all levels are members of Democrats for Education Reform, which seeks to promote school choice policies in the Democratic Party. The group calls on Democratic politicians to adopt education freedom, declaring on its website: “If Democratic lawmakers want to be the champions of public education excellence and equity, they need to do some serious soul searching on how they position themselves on public charter schools.”
 
Newell now travels the country promoting education freedom to lawmakers. To rural Republicans who are concerned about the viability of school choice in their areas, he says, “In the district I represented, there wasn’t a marketplace until there was. An educational marketplace definitely won’t arise in places where one-size-fits-all laws block it.”
 
School choice is poised to take the nation by storm. It can no longer be held up by vested interests and timid politicians. Protect The 1st looks forward to seeing the Lone Star State be the next to offer families educational choice.

​The growth of the surveillance state in Washington, D.C., is coinciding with a renewed determination by federal agencies to expose journalists’ notes and sources. Recent events show how our Fourth Amendment right against unreasonable searches and seizures and our First Amendment right of a free press are inextricable and mutually reinforcing – that if you degrade one of these rights, you threaten both of them.
 
In May, we reported that the FBI raided the home of journalist Tim Burke, seizing his computer, hard drives, and cellphone, after he reported on embarrassing outtakes of a Fox News interview. It turns out these outtakes had already been posted online. Warrants were obtained, but on what credible allegation of probable cause?
 
Or consider CBS News senior correspondent Catherine Herridge who was laid off, then days later ordered by a federal judge to reveal the identity of a confidential source she used for a series of 2017 stories published while she worked at Fox News. Shortly afterwards, Herridge was held in contempt for refusing to divulge that source. This raises the question that when CBS had earlier terminated Herridge and seized her files, would network executives have been willing to put their freedom on the line as Herridge has done?
 
In response to public outcry, CBS relented and handed Herridge’s notes back to her. But local journalists cannot count on generating the national attention and sympathy that a celebrity journalist can. Now add to this vulnerability the reality that every American who is online – whether a national correspondent or a college student – has his or her sensitive and personal information sold to more than a dozen federal agencies by data brokers, a $250 billion industry that markets our data in the shadows.
 
The sellers of our privacy compile nearly limitless data dossiers that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.” Data brokers have established a sophisticated system to aggregate data from nearly every platform and device that records personal information to develop detailed profiles on individuals. To fill in the blanks, they also sweep up information from public records. So if you have a smartphone, apps, or search online, your life is already an open book to the government. In this way, state and federal intelligence and law enforcement agencies can use the data broker loophole to obtain information about Americans that they would otherwise need a warrant, court order, or subpoena to obtain.
 
Now imagine what might happen as these two trends converge – a government hungry to expose journalists’ sources, but one that also has access to a journalist’s location history, as well as everyone they have called, texted, and emailed. It is hardly paranoid, then, to worry that when a prosecutor tries to compel a journalist to give up a source through legal means, purchased data may have already given the government a road map on what to seek. 
 
The combined threat to privacy from pervasive surveillance and prosecutors seeking journalists’ notes is serious and growing. This is why Protect The 1st supports legislation to protect journalistic privacy and close the data broker loophole. The Protect Reporters from Exploitive State Spying, or PRESS Act would grant a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such “shield laws” have been put into place in 49 states. The PRESS Act, which passed the House in January with unanimous, bipartisan support, would bring the federal government in line with the states.
 
Likewise, the Fourth Amendment Is Not For Sale Act would close the data broker loophole and require the government to obtain a warrant before it can seize our personal information, as required by the Fourth Amendment of the U.S. Constitution. The House Judiciary Committee voted to advance the Fourth Amendment Is Not For Sale Act out of committee with strong bipartisan support in July. The Judiciary Committee also reported out a strong data broker loophole closure as part of the Protect Liberty Act in December. 
Now, it’s up to Congress to include these protection and reform measures in the reauthorization of Section 702.
 
Protect The 1st urges lawmakers to pass measures to protect privacy and a free press. They will rise or fall together.

​A bill under consideration in Kentucky would neuter the state’s public records law, limiting access to government documents and shielding state decision-makers from scrutiny in the Bluegrass state.
 
This latest legislation is part of a larger trend away from public disclosure. Two years ago, Kentucky Gov. Andy Beshear, a Democrat, opposed a provision exempting that state’s legislature from public records requests, calling it a “recipe for secrecy.” He vetoed that bill but was overridden by the legislative majority, which argued that a deliberative body has a unique need for privacy. This new bill goes further, however, encompassing boards, commissions, state officials, and local government.
 
This current proposal exempts drafts, notes, correspondence with private parties, preliminary recommendations, personal communications conducted on government devices, any communications related to personal opinion, and – glaringly – information stored on a personal device. Want to make sure the public doesn’t know what government officials are up to? They can simply conduct government business on their smartphones. This bill is a roadmap for avoiding accountability. 
 
That Gov. Beshear was overridden by a supermajority comfortable with legislative privacy does not bode well for stopping this latest attempt by Kentucky officials to hide bureaucrats in the bluegrass.
 
All 50 states have some form of public records statute ensuring public access to the reports, memos, and other documents that describe official thinking behind regulatory or political decisions. These laws constitute state-level versions of the Freedom of Information Act, intended to bring the disinfecting rays of sunlight into the oft-opaque inner workings of government.
 
Yet a host of states across the country also exempt large swaths of documents from disclosure. In Massachusetts, Oklahoma, Oregon, and Wyoming, legislatures are entirely exempt from public records laws. In Georgia and Minnesota, they are simply excluded from the definition of an agency subject to freedom of information requests.
 
While some jurisprudence weighs against legislative privilege in favor of public access, there are also good arguments as to why legislatures, specifically, should not have to hand over their deliberative internal communications.
 
When FOIA passed in 1966, Congress was specifically omitted from the definition of an “agency” required to respond to public record requests. As the non-partisan Congressional Research Service summarizes, “applying FOIA to Congress may alter the functioning of the legislative process and implicate certain constitutional provisions, including the Journal Clause (art. I, §5, cl. 3) and the Speech or Debate Clause (art. I, §6, cl. 1).” In other words, a Congressional FOIA could chill legitimate debate and decision-making. The same argument could likewise extend to state legislatures.
 
Whatever one thinks of legislative exemptions to public records requests, bureaucrats and agencies simply should not have the right to expansive non-disclosure as spelled out in the latest Kentucky bill. Should it pass, it will be a near total subversion of the policy underlying the state’s public records law – a fatal blow to any semblance of good governance, transparency, and accountability.