CENTER FOR AZ v. AZ SECRETARY OF STATE

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

CENTER FOR ARIZONA POLICY INC. ET AL.,
Plaintiffs/Appellants,

v.

ARIZONA SECRETARY OF STATE, ET AL.,
Defendants/Appellees,

KRISTIN MAYES, ARIZONA ATTORNEY GENERAL, ET AL.,
Intervenors/Appellees.

No. CV-24-0295-PR
Filed June 29, 2026

Appeal from the Superior Court in Maricopa County
The Honorable M. Scott McCoy, Judge
No. CV2022-016564

AFFIRMED IN PART, REVERSED IN PART, REMANDED

Opinion of the Court of Appeals,
Division One
258 Ariz. 570 (App. 2024)

VACATED IN PART

COUNSEL:

Andrew Gould (argued), Emily Gould, Daniel Tilleman, Holtzman Vogel
Baran Torchinsky & Josefiak PLLC, Phoenix; Jonathan Riches, Timothy
Sandefur, Scott Day Freeman, Parker D. Jackson, Scharf-Norton Center for
Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for
Center for Arizona Policy, Inc., et al.
CENTER FOR ARIZONA POLICY V. ARIZONA SECRETARY OF STATE
Opinion of the Court

Kristin K. Mayes, Arizona Attorney General, Alexander W. Samuels
(argued), Nathan T. Arrowsmith, Kathryn E. Boughton, Assistant
Attorneys General, Phoenix, Attorneys for Arizona Attorney General

Luke A. Douglas, Katharine Myers, Office of the Secretary of State, Phoenix,
Attorneys for Arizona Secretary of State

Jared G. Keenan, Arizona Center for Law in the Public Interest, Phoenix;
David Kolker, Tara Malloy, Elizabeth D. Shimek, Campaign Legal Center,
Washington, D.C., Attorneys for Voters’ Right to Know

Mary R. O’Grady, Eric M. Fraser (argued), Alexandria N. Karpurk, Osborn
Maledon, P.A., Phoenix, Attorneys for Arizona Citizens Clean Elections
Commission

Brett W. Johnson, Tracy A. Olson, Ryan P. Hogan, Charlene A. Warner,
Snell & Willmer L.L.P., Phoenix, Attorneys for Amici Curiae Speaker of the
House Steve Montenegro and President of the Senate Warren Petersen

Joy E. Herr-Cardillo, Associate Clinical Professor of Law, The University of
Arizona James E. Rogers College of Law, Tucson, Attorneys for Amicus
Curiae John D. Leshy

Aaron T. Martin, Martin Law & Mediation PLLC, Phoenix; Brett R. Nolan,
Institute for Free Speech, Washington, D.C., Attorneys for Amicus Curiae
Institute for Free Speech

Susan M. Freeman, Kory J. Koerperich, Womble Bond Dickinson (US) LLP,
Phoenix, Attorneys for Amicus Curiae Citizens for Responsibility and
Ethics in Washington

Timothy J. Berg, Emily Ward, Fennemore Craig, P.C., Phoenix, Attorneys
for Amici Curiae Fife Symington, Vernon Parker and Bob Burns

Jon Weiss, Lindsey Huang, Papetti Samuels Weiss McKirgan LLP,
Scottsdale, Attorneys for Amici Curiae Legal Scholars

Grant H. Frazier, Evan G. Daniels, Frazier Law, PLLC, Scottsdale; Robert
Alt, David C. Tryon, The Buckeye Institute, Columbus, OH, Attorneys for
Amicus Curiae The Buckeye Institute

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CENTER FOR ARIZONA POLICY V. ARIZONA SECRETARY OF STATE
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Dominic E. Draye, Greenberg Traurig, LLP, Phoenix; Derek Shaffer, Quinn
Emanuel Urquhart & Sullivan, LLP, Washington, D.C., Attorneys for Amici
Curiae Americans for Prosperity & Americans for Prosperity Foundation

Julie Kriegh, City Attorney, Deryck R. Lavelle, Chief Assistant City
Attorney, Dustin Cammack, Assistant City Attorney, Phoenix, Attorneys
for Amicus Curiae City of Phoenix

Alex Kaufman, Chalmers, Adams, Backer & Kaufman LLC, Alpharetta, GA,
Attorneys for Amici Curiae Make Liberty Win and Young Americans for
Liberty

Michael G. Bailey, Arizona Chamber of Commerce & Industry, Phoenix,
Attorneys for Amicus Curiae Arizona Chamber of Commerce & Industry

CHIEF JUSTICE TIMMER authored the Opinion of the Court, in which
JUSTICES BEENE, MONTGOMERY, and BERCH (ret.),* joined. JUSTICE
KING, joined by VICE CHIEF JUSTICE LOPEZ and JUSTICE BOLICK,
concurred in part and dissented in part.

CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 In November 2022, Arizona voters enacted the Voters’ Right
to Know Act (the “Act”). See Voters’ Right to Know Act, Proposition 211
(2022) (hereinafter “Prop. 211”). The Act declares that “the People of
Arizona have the right to know the original source of all major
contributions used to pay, in whole or part, for campaign media spending.”
Id. § 2(A). To accomplish this goal, the Act requires public disclosure of
major donors who fund election-related public communications during an
election cycle and the original sources of their contributions, even when
those contributions move through intermediaries. Id. The Act reflects an

*
Justice Maria Elena Cruz is recused from this matter. Pursuant to
article 6, section 3 of the Arizona Constitution, Justice Rebecca Berch
(retired) of the Arizona Supreme Court is designated to sit in this matter
until it is finally decided.
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intent “to stop ‘dark money,’ the practice of laundering political
contributions, often through multiple intermediaries, to hide the original
source.” Id. § 2(C).

¶2 Plaintiffs, two organizations and two individuals, sued to
challenge the Act’s constitutionality. The superior court dismissed their
complaint for failing to state legally valid claims. The issues here are
whether Plaintiffs alleged legally viable claims that the Act is facially
unconstitutional or, in the alternative, is unconstitutional as applied to
them. We hold that Plaintiffs failed to sufficiently allege that the Act is
facially unconstitutional. Plaintiffs likewise failed to sufficiently allege
that the Act is unconstitutional as applied to them under the Arizona
Constitution’s privacy provision. The superior court therefore correctly
dismissed all those claims. But because the Plaintiffs sufficiently alleged
at this very early stage that the Act is unconstitutional as applied to them
under the Arizona Constitution’s free-speech provision, the court erred by
dismissing that claim.

BACKGROUND

A. Overview of the Act

¶3 Given the Act’s complexity, we summarize only the
provisions relevant here. To begin, the Act does not require disclosure of
direct contributors to candidates, candidate committees or, with one
exception not relevant here, political action committees or political parties.
See A.R.S. § 16-971(2), (7). 1 Nor does it regulate campaign media spending

1 Other laws outside the Act already require disclosures from these
persons and entities. A.R.S. § 16-906(B)(1)(b) requires political action
committees (entities organized for the primary purpose of influencing an
election and who receive contributions or make expenditures in connection
with the election, see A.R.S. § 16-905(C)) to disclose the name and address
of any sponsor and incorporate sponsors into their committee names.
Those names, in turn, must be disclosed on campaign advertisements and
solicitations. See A.R.S. § 16-925(A)–(D). A.R.S. § 16-926(B)(2) requires
candidate committees, political action committees, and political parties to
disclose the identities of contributors, including for individual contributors,
their occupations, and employers. A.R.S. § 16-925 requires entities paying
for an advertisement or fundraising solicitation to disclose their identities

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directly funded by individuals or organizations using their own money.
See id. Instead, the Act applies to “covered persons” who act
independently of a particular candidate or ballot measure sponsor but
accept donations and use them to fund election-related media. 2 See A.R.S.
§§ 16-972 through 16-973.

¶4 A “covered person” is one who, within a single election cycle,
spends more than $50,000 on campaign media for statewide campaigns or
more than $25,000 on other campaigns; accepts in-kind contributions used
for campaign media spending in those amounts; or meets those thresholds
through a combination of both. See A.R.S. § 16-971(7). We refer to these
requirements collectively as the “Spending Threshold.” The Spending
Threshold applies only to “campaign media spending,” which the Act
defines as expenditures for public communications related to elections for
candidates, initiatives and referenda, or the recall of public officers. See
A.R.S. § 16-971(2).

¶5 The Act includes an opt-out provision designed to protect
donor choice. A covered person must notify donors, either before or after
receiving a contribution, that the contribution may be used for campaign
media spending and, if so used, may be subject to disclosure. See
§ 16-972(B)–(C). As the dissent notes, the Act does not require the covered
person to identify the precise substance of any proposed campaign media.
See infra ¶ 185. But the donor is free to ask further questions or to refuse
to allow the contribution to be used for campaign media. A covered
person may not use a contribution for campaign media spending until
twenty-one days after providing that notice, unless the donor provides
written consent sooner, which could occur at the time the contribution is
solicited or made. See § 16-972(C). Contributions used for campaign
media spending after this notice-and-choice process constitute what the Act
defines as “traceable monies.” See § 16-971(18). Conversely, donors who
opt out are assured that their contributions will not be used to fund
campaign media spending. See § 16-972(B). The Act thus does not

in the advertisement or solicitation. A.R.S. § 19-111(A) requires those
proposing an initiative or referendum to disclose their names and addresses
and if an organization, the names and titles of officers. The
constitutionality of these provisions is not before us.
2 The Act defines “person” as including both natural persons and entities.
§ 16-971(13).
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compel donors to finance campaign media or to associate with
election-related messaging they do not support; it preserves donors’ control
over whether their contributions will be used for that purpose.

¶6 Once a covered person reaches the Spending Threshold
during an election cycle, and again as new thresholds are met, disclosure
reports must be filed with the Secretary of State. See § 16-973. Relevant
here, these reports must identify each donor who contributed more than
$5,000 in traceable monies or in-kind contributions to the covered person
during the election cycle, whether directly or through an intermediary. See
§ 16-973(A)(6). The reports must also identify any intermediary who
transferred more than $5,000 in traceable monies from original sources to
the covered person. See § 16-973(A)(7). In short, the Act requires
disclosure of the original sources of traceable monies used for campaign
media spending, not merely the immediate donors. Contributions below
$5,000, however, are exempt from disclosure. § 16-973(G).
Notwithstanding the disclosure provisions, the identity of donors will not
be disclosed if that identity is protected by law or court order, or a
“reasonable probability” exists that public knowledge of the donor’s
identity would subject the donor or the donor’s family to “a serious risk of
physical harm.” § 16-973(F).

¶7 Covered persons must also maintain “transfer records”
identifying those who directly or indirectly contributed or transferred more
than $2,500 of “original monies” (defined as personal monies or business
income) ultimately used for campaign media spending. See §§ 16-971(12),
(19), -972(A). The records must include the amounts contributed or
transferred and the recipient of those monies. See § 16-971(19). Covered
persons must keep these records for five years and provide them to the
Citizens Clean Elections Commission (the “Commission”) upon request.
See § 16-972(A). Presumably, these records are kept to track donations and
identify donors who contribute in the aggregate more than $5,000 in
traceable monies.

¶8 In addition, donors of more than $5,000 in traceable monies
or in-kind contributions must disclose the original sources of any funds
over $2,500 that made their contributions possible. See § 16-972(D)–(E).
Specifically, donors must identify each person who provided more than
$2,500 of the funds used, the amounts provided, and any intermediaries
who transferred those funds. See id. Donors who make in-kind
contributions must provide this information to covered persons at the time
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the contribution is made or promised to be made. See § 16-972(E). But
notably, and curiously, donors of traceable monies are only required to
disclose that information upon the covered person’s written request, and
nothing expressly requires covered persons to make that request. See
§ 16-972(D). All donors must maintain records of this information for five
years and provide them to the Commission upon request. See
§ 16-972(D)–(E).

¶9 The Act also empowers the Commission to implement and
enforce its provisions. See A.R.S. § 16-974(A). Among other duties, the
Commission must “establish disclaimer requirements for public
communications by covered persons,” which must include, at a minimum,
disclosure of the names of the top three donors of original monies during
the election cycle. § 16-974(C).

¶10 Finally, the Act imposes civil penalties for failure to comply
with its provisions. See A.R.S. § 16-976(A). It does not impose criminal
sanctions for any violations.

B. These Proceedings

¶11 Plaintiffs are two anonymous individuals who donate to
organizations engaged in campaign media spending, and two nonprofit
organizations, the Center for Arizona Policy, Inc. (“CAP”) and the Arizona
Free Enterprise Club (“FEC”), both of which we assume qualify this election
cycle as covered persons under the Act. Both CAP and FEC engage in
research, education, and advocacy. CAP addresses issues affecting
“foundational principles of life, marriage, family, and religious freedom,”
while FEC focuses on free enterprise, limited government, and pro-growth
public policies.

¶12 In late 2022, Plaintiffs filed a complaint seeking declaratory
and injunctive relief and asking the superior court to temporarily enjoin
enforcement of the Act while the case proceeded. As relevant here,
Plaintiffs alleged that the Act is facially unconstitutional because it violates
two rights guaranteed by the Arizona Constitution: the right to speak
freely, see Arizona Constitution article 2, section 6 (the “Speak Freely
Clause”), and the right to privacy in one’s private affairs, see Arizona
Constitution article 2, section 8 (the “Private Affairs Clause”). The original
defendants were the Commission and the Secretary of State, but both the

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Arizona Attorney General and Voters’ Right to Know (the organization that
sponsored the Act) intervened to defend the Act.

¶13 Defendants moved to dismiss the complaint pursuant to
Arizona Rule of Civil Procedure 12(b)(6) for failure to state a legally valid
claim, and the superior court granted the motion. But the court allowed
Plaintiffs to file an amended complaint to add a claim that the Act is
unconstitutional as applied to them. Defendants then moved to dismiss
the amended complaint pursuant to Rule 12(b)(6), and the court granted the
motion. The court of appeals affirmed. Ctr. for Ariz. Pol’y Inc. v. Ariz.
Sec’y of State, 258 Ariz. 570, 590 ¶ 73 (App. 2024).

¶14 We granted review of Plaintiffs’ subsequently filed petition
for review because the case presents issues of statewide importance and
interest that are capable of repetition. We have jurisdiction pursuant to
article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

A. We Review The Superior Court’s Judgment De Novo

¶15 We review the superior court’s dismissal of Plaintiffs’
complaint and amended complaint de novo as deciding issues of law. See
City of Mesa v. Ryan, 258 Ariz. 297, 318 ¶ 8 (2024). The court correctly
dismissed the amended complaint under Rule 12(b)(6) if, as a matter of law,
“[P]laintiffs would not be entitled to relief under any interpretation of the
facts susceptible of proof.” Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 8
(2012) (quoting Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224
¶ 4 (1998)). To make this determination, we will assume the truth of
Plaintiffs’ factual allegations and indulge reasonable inferences from those
facts. See id. ¶ 9. We give no weight to any conclusory statements. See
id. Finally, we interpret the Arizona Constitution and the Act de novo as
issues of law. See E.H. v. Slayton, 259 Ariz. 472, 476 ¶ 8 (2025).

¶16 Before turning to the merits, we note the scope of our
engagement with the dissent. We address those points on which a failure
to respond would leave readers uncertain whether our reasoning has
accounted for them. But we do not address every disagreement. Some
of the dissent’s most forceful arguments concern not what the Arizona
Constitution means but what the Act does. The Act compels disclosures
some donors would prefer to avoid; it reveals associations some would

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prefer to keep private; it imposes obligations on those who finance
campaign media. These are real effects, and reasonable people may
disagree about whether the People should have adopted a law with these
consequences. But the question before us is whether the Act is permissible
under the Arizona Constitution, not whether the People made the right
policy choice in enacting it. Our silence on any particular point should not
be read as agreement with the respective policy choices enacted by the
People. It reflects our judgment that the wisdom of the Act, or any part of
it, is not ours to weigh.

B. It Is Difficult To Prevail On A Facial Challenge

¶17 Facial constitutional challenges are rarely successful. See
State v. Wein, 244 Ariz. 22, 31 ¶ 34 (2018) (describing success on such
challenges as a “difficult feat”). They are disfavored for several reasons:
they “often rest on speculation” and thus risk premature statutory
interpretation on a “factually barebones record”; they “run contrary to the
fundamental principle of judicial restraint” commending courts not to
decide questions of constitutional law in advance of needing to decide
them; and they “threaten to short circuit the democratic process by
preventing laws embodying the will of the people from being
implemented.” Wash. State Grange v. Wash. State Republican Party, 552 U.S.
442, 450–51 (2008) (citation modified).

¶18 We presume that laws enacted by initiative, as with those
enacted by the Legislature, are constitutional. Fann v. State, 251 Ariz. 425,
433 ¶ 23 (2021). Ordinarily, a challenger must either “establish that no set
of circumstances exists under which the [Act] would be valid, or show that
the law lacks ‘a plainly legitimate sweep.’” Ams. for Prosperity Found. v.
Bonta, 594 U.S. 595, 615 (2021) (citation modified) (first quoting United States
v. Salerno, 481 U.S. 739, 745 (1987); and then quoting Wash. State Grange,
552 U.S. at 449). As the U.S. Supreme Court has explained, “[t]he fact that
the [Act] might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.” Salerno, 481 U.S.
at 745.

¶19 When First Amendment interests are implicated, however,
the U.S. Supreme Court has recognized another type of facial challenge: one
under the overbreadth doctrine. See Bonta, 594 U.S. at 615; AZ Petition
Partners LLC v. Thompson, 255 Ariz. 254, 258–59 ¶ 18 (2023). Under it, a
court may “[invalidate a statute] as overbroad if a substantial number of its
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applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” Bonta, 594 U.S. at 615 (quoting United States v. Stevens, 559 U.S. 460, 473 (2010)). This “expansive remedy” exists “out of concern
that the threat of enforcement of an overbroad law may deter or ‘chill’
constitutionally protected speech—especially when the overbroad statute
imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003); see
also AZ Petition Partners, 255 Ariz. at 258 ¶ 18.

¶20 Our courts have not yet addressed the overbreadth doctrine
in challenges brought solely under the Speak Freely Clause of the Arizona
Constitution. We do so now. Both the First Amendment and the Speak
Freely Clause safeguard speech from government restrictions, though they
frame that protection differently. See State v. Stummer, 219 Ariz. 137, 142
¶ 14 (2008). The First Amendment restrains government action
(“Congress shall make no law . . . abridging the freedom of speech”), while
the Speak Freely Clause affirmatively guarantees every person the right to
speak freely about a topic, subject only to responsibility for abuse of that
right (“Every person may freely speak . . . on all subjects, being responsible
for the abuse of that right”). See id. Because the Clause and the First
Amendment both protect free expression, we must likewise guard against
laws that chill protected speech by invalidating statutes with a substantial
number of unconstitutional applications relative to their legitimate scope.
See Ino Ino, Inc. v. City of Bellevue, 937 P.2d 154, 163 (Wash. 1997) (stating that
Washington’s constitutional free-speech provision, on which Arizona’s
Speak Freely Clause was based, is “[no] less tolerant than the First
Amendment of overbroad restrictions on expression when such restrictions
rise to the level of a prior restraint”). Accordingly, we adopt the
overbreadth doctrine for facial challenges brought under the Speak Freely
Clause.

C. Plaintiffs Have Not Alleged A Legally Valid Facial
Challenge Under The Speak Freely Clause

1. We Apply Arizona-Specific Scrutiny To Evaluate Claims
Under The Speak Freely Clause

¶21 Under the First Amendment, courts apply exacting scrutiny
to address a facial challenge to compelled disclosure laws. See U.S. Const.
amend. I; Bonta, 594 U.S. at 607; Doe v. Reed, 561 U.S. 186, 196 (2010); Buckley
v. Valeo, 424 U.S. 1, 64–65 (1976), superseded by statute on other grounds as
recognized in McConnell v. FEC, 540 U.S. 93 (2003). To satisfy this standard,

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the law’s defender must show a “substantial relation” between the
disclosure requirement and a “sufficiently important” governmental
interest. See Citizens United v. FEC, 558 U.S. 310, 366–67 (2010); see also
NAACP v. Alabama, 357 U.S. 449, 463 (1958) (concluding that the state’s
interest must be “compelling”). Also, the regulation must be narrowly
tailored to serve that interest. See Bonta, 594 U.S. at 608.

¶22 We asked the parties whether challenges under the Speak
Freely Clause should be evaluated under a First Amendment standard of
review or a different standard tailored to the Arizona Constitution. All
contend that no new standard is needed and urge the Court to adopt one of
the standards already developed under First Amendment jurisprudence,
although they disagree about which tier of scrutiny applies.

¶23 Plaintiffs argue that the Speak Freely Clause’s broader scope
requires us to use strict scrutiny, the most stringent standard of review.
And they ask us to apply that scrutiny only to laws targeting “abuses” of
the free-speech right, asserting that all laws regulating non-abusive speech
are per se unconstitutional. Defendants respond that standards of review
are judicial constructs, not commands of constitutional text. They argue
that exacting scrutiny is appropriate in compelled disclosure cases because
it is consistent with federal precedent and accords with the Arizona
Constitution’s strong commitment to election transparency. See, e.g., Ariz.
Const. art. 7, §§ 12, 16; id. art. 14, § 18.

¶24 We acknowledge that the Speak Freely Clause and the First
Amendment generally, but not invariably, offer the same protection for
speech and the press. As the Washington Supreme Court has observed
when interpreting the speech clause that Arizona adopted as our Speak
Freely Clause, see Stummer, 219 Ariz. at 142 ¶ 14 n.4, a state constitutional
provision may sometimes be more protective than its federal counterpart,
but “it does not follow that greater protection is provided in all contexts.”
See Ino Ino, 937 P.2d at 162, 166; see also Kotterman v. Killian, 193 Ariz. 273,
305–06 (1999) (Feldman, J., dissenting) (finding that “Washington cases
interpreting their constitution are persuasive authority with respect to our
[C]onstitution”). Consistent with that understanding, the Washington
Supreme Court has held that Washington’s free-speech clause does not
offer broader protection than the First Amendment for obscenity,
commercial speech, speech in nonpublic fora, defamatory statements, and
nude or sexually explicit dancing. See Ino Ino, 937 P.2d at 162–63.

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¶25 In light of the similarities between the Speak Freely Clause
and the First Amendment, we generally strive to apply the same principles
under both unless our state provision justifies a departure. See State v.
Mixton, 250 Ariz. 282, 290 ¶ 32 (2021) (recognizing “the value in uniformity
with federal law when interpreting and applying the Arizona
Constitution”); Stummer, 219 Ariz. at 144 ¶ 23–24 (adopting the federal
intermediate scrutiny standard to review a content-based law under the
Speak Freely Clause but modifying it to accommodate the Clause’s broader
reach). Although it is not the case here, many parties challenging laws
under the Speak Freely Clause may also raise First Amendment arguments.
Applying the same principles under both challenges, when warranted,
avoids confusion and enables parties and courts to draw on decades of First
Amendment precedent. See Brush & Nib Studio, LC v. City of Phoenix,
247 Ariz. 269, 282 ¶ 46 (2019) (“[W]e have often relied on federal case law
in addressing free speech claims under the Arizona Constitution.”). We
therefore do so when appropriate.

¶26 We are not persuaded to adopt wholesale the tiers of scrutiny
applicable in First Amendment jurisprudence. Those tiers sort cases into
rigid categories and then apply a one-size-fits-all test regardless of the
actual burden on expression. See, e.g., Bonta, 594 U.S. at 623 (Sotomayor,
J., dissenting) (“The same scrutiny the Court applied when NAACP
members in the Jim Crow South did not want to disclose their membership
for fear of reprisals and violence now applies equally in the case of donors
only too happy to publicize their names across the websites and walls of
the organizations they support.”). Using tiers also risks results-oriented
decisions because the choice of which tier applies often dictates the result.
See Montgomery v. Carr, 101 F.3d 1117, 1122 (6th Cir. 1996) (summarizing
scholarly criticism that the tiers-of-scrutiny framework is “indeterminate”
and “result-driven”). Nothing in the Speak Freely Clause or our caselaw
warrants importing such an ill-fitting and overly rigid framework.
Instead, we use the below-described, Arizona-specific standard of review,
anchored on the meaning of our Speak Freely Clause.

a. Step One: Does The Challenge Concern Protected
Expression?

¶27 We first ask whether the Speak Freely Clause protects the
expression at issue. See Coleman, 230 Ariz. at 357 ¶ 18 (determining
initially whether tattooing is constitutionally protected expression under
the First Amendment). We interpret the scope of the Clause’s protection

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by giving its words their ordinary meaning in context with other
constitutional provisions adopted at statehood. See State ex rel. Brnovich v.
City of Phoenix, 249 Ariz. 239, 244 ¶ 21 (2020); see also State v. Osborne, 14
Ariz. 185, 204 (1912) (stating that each provision in the Constitution should
be construed as part of the whole and harmonized to prevent conflict); State
v. Baldwin, 184 Ariz. 267, 273 (App. 1995) (stating that the Speak Freely
Clause does not have primacy over other constitutional provisions); State v.
Gunwall, 720 P.2d 808, 812 (Wash. 1986) (concluding that “other relevant
provisions of the state constitution may require that the state constitution
be interpreted differently” from the federal Constitution).

¶28 When Arizonans at the 1911 election adopted our
constitution, including its declaration of individual rights, they intended
the Speak Freely Clause to provide the primary protection for free-speech
and free-press rights. See Mountain States Tel. & Tel. Co. v. Ariz. Corp.
Comm’n, 160 Ariz. 350, 356 (1989) (explaining this is necessarily so because
the people adopted the Constitution before the U.S. Supreme Court applied
the federal Bill of Rights, including the First Amendment, to the states).
Significantly, the Speak Freely Clause did not newly grant free-speech
rights to Arizonans; it guaranteed the continued exercise of free-speech
rights Arizonans already enjoyed before statehood. See Thomas M.
Cooley, Constitutional Limitations 49 (6th ed. 1890) (explaining that state
constitutions do not create rights but are the “consequence[] of personal
and political freedom” and are designed to protect preexisting rights and
powers); see also id. at 512–13 (explaining that state constitutional
free-speech provisions “do not assume to create new rights, but their
purpose is to protect the citizen in the enjoyment of those already
possessed”). Ascertaining the rights Arizonans exercised at statehood,
therefore, illuminates the scope of the Speak Freely Clause. See id. at 513.
Our task when interpreting the Speak Freely Clause is to effectuate the
public meaning Arizonans adopted in 1911, consulting federal doctrine
when it aligns but not when it over or under protects expression compared
to our provision. See Mixton, 250 Ariz. at 289 ¶ 28; Brush & Nib Studio,
247 Ariz. at 282 ¶ 46; Stummer, 219 Ariz. at 144 ¶ 23.

¶29 The text, history, and context of the Clause within the entire
Constitution evidence that Arizonans in 1911 did not intend the Speak
Freely Clause to protect all expressive acts. To that extent, our prior
observations that a violation of the First Amendment necessarily violates
the Speak Freely Clause were inaccurate. See Brush & Nib Studio, 247 Ariz.
at 282 ¶ 47; Coleman, 230 Ariz. at 361 ¶ 36 n.5. For example, alongside the
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Speak Freely Clause, the framers included a provision prohibiting
corporations from making contributions “for the purpose of influencing
any election or official action.” See Ariz. Const. art. 14, § 18. To
harmonize the two provisions, we must conclude that the framers and the
voting public did not understand or intend corporate campaign
contributions to be protected expression under the Speak Freely Clause.
See Osborne, 14 Ariz. at 204. The Speak Freely Clause therefore does not
prevent the prohibition of corporate campaign contributions. This is so
despite the fact that the First Amendment prohibits such a restriction. 3 See
Citizens United, 558 U.S. at 365 (“Government may not suppress political
speech on the basis of the speaker’s corporate identity.”).

¶30 We pause here to clarify our statements in Coleman and Brush
& Nib Studio and to counter the dissent’s assertion that the Arizona
Constitution necessarily provides greater protection for individual
free-speech rights in all circumstances than does the federal Constitution.
See infra ¶ 237. More precisely stated, those cases should have explained
that we independently interpret our own state constitutional provisions
and are not constrained either to follow federal courts’ interpretations of
parallel provisions or to expand the protections afforded by the federal
Constitution. Our interpretation of the Arizona Constitution is
independent as a matter of federalism and therefore not bound by federal
doctrine; our Constitution stands on its own terms and may be equally,
more, or less protective than the U.S. Supreme Court’s interpretation of
analogous federal provisions. See Sitz v. Dep’t of State Police, 506 N.W.2d
209, 217 (Mich. 1993) (observing that “[a]s a matter of simple logic,” because
state and federal constitutional texts “were written at different times by
different people, the protections afforded may be greater, lesser, or the
same”); see also id. n.12 (explaining that if a state court treats the federal
Constitution as establishing a mandatory “floor,” it allows “a federal
governmental body—the United States Supreme Court —to define, at least
in part, rights guaranteed by the state constitution” (quoting Earl M. Maltz,
False Prophet—Justice Brennan and the Theory of State Constitutional Law,
15 Hastings Const. L.Q. 429, 443–44 (1988))); Malyon v. Pierce County,
935 P.2d 1272, 1281 n.30 (Wash. 1997) (“However useful that floor-ceiling
metaphor may be, it obscures the larger truth that the level of protection of

3 Article 14, section 18 likely violates the First Amendment. See Citizens
United, 558 U.S. at 365. Regardless, it evidences the view in 1911 that such
corporate contributions were not considered speech protected by the Speak
Freely Clause.
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Opinion of the Court

rights under the state constitutions can be the same as, higher than, or lower
than that provided by the federal constitution.” (citation omitted)).

¶31 Of course, when the federal Constitution provides greater
protection for individual rights, courts must apply the federal provision to
resolve the case, assuming the parties have invoked it. See U.S. Const.
art. VI, cl. 2; Hans A. Linde, E Pluribus—Constitutional Theory and State
Courts, 18 Ga. L. Rev. 165, 179 (1984) (acknowledging that state
constitutional provisions may be less protective than their federal
counterparts and explaining that if that is the case, “the court must go on to
decide the claim under federal law, assuming it has been raised”). Put
differently, the federal Constitution sets a floor for federal rights, not a rule
of construction for state constitutional text. Plaintiffs do not allege any
federal constitutional claims.

¶32 With these principles clarified, we return to step one of the
framework governing a claim brought under the Speak Freely Clause. If
the Speak Freely Clause does not protect the expression at issue, our inquiry
ends. If it does, we proceed to step two.

b. Step Two: Does The Challenged Act Prevent People
From “Freely” Speaking, Writing, and
Publishing?

¶33 If expression protected by the Speak Freely Clause is at issue,
we next consider whether the challenged law prevents people from “freely”
engaging in that expression. Upon inspection, use of this seemingly
simple term within the Clause is nuanced and does not, as Plaintiffs and the
dissent argue, guarantee Arizonans the right to engage in non-abusive
speech completely free from governmental regulation. See infra ¶ 166.
We seek to give “freely” its original meaning, as understood by the public
that adopted the Arizona Constitution and as read in the context of the
whole Constitution. See Torres v. JAI Dining Servs. (Phx.), Inc., 256 Ariz.
212, 223 ¶ 41 (2023) (Bolick, J., concurring). Thus, unlike the dissent, we
do not restrict our review to dictionary definitions but undertake the more
fulsome review required to determine original public meaning. See infra
¶¶ 158–62.

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(1) What does “freely” mean in the Speak Freely Clause?

¶34 When Arizonans adopted the Constitution in 1911, acting
“freely” meant doing so “without restraint or compulsion.” See Freely,
Webster’s Int’l Dictionary of the Eng. Language (1907). Thus, provisions
like the Speak Freely Clause were understood as forbidding prior restraints
on expression—such as gag orders, publication licenses, or advance
censorship—and prohibiting punishment for expressions that were not
considered an abuse of the right. See Phx. Newspapers, Inc. v. Superior
Court, 101 Ariz. 257, 260 (1966) (“The language of this provision makes plain
its purpose to prevent previous restraints upon publication.” (quoting Ex
Parte McCormick, 88 S.W.2d 104, 106 (Tex. Crim. App. 1935))); Cooley, supra
¶ 28, 510–18 (reviewing free-speech and free-press history leading to
adoption of state constitutional provisions identical to or like the Arizona
provision); id. at 517 (explaining it would be a “mockery” of liberty to allow
people to speak, write, and publish what they wanted but then punish them
for doing so). And, although apparently not addressed by courts or
respected commentators of the day, because compelled speech is
incompatible with speaking “freely,” we conclude that the Clause
necessarily protects against compelled expression as well.

¶35 Cases decided under the Speak Freely Clause reflect this
original understanding. In Brush & Nib Studio, we held that a city
ordinance prohibiting discrimination on the basis of sexual orientation
compelled designers to create custom wedding invitations in violation of
their right under the Speak Freely Clause to not speak in support of
same-sex marriages. 247 Ariz. at 305 ¶ 166. In Phoenix Newspapers, we
held that an order barring a newspaper from reporting on open court
proceedings violated the Clause because it imposed an advance restraint.
101 Ariz. at 259–60. Other cases have similarly invalidated prior
restraints. See Mountain States, 160 Ariz. at 357 (striking an order requiring
a telephone company to block messages absent a pre-subscription); Phx.
Newspapers Inc. v. Jennings, 107 Ariz. 557, 559–60 (1971) (vacating an order
excluding the public and reporters from attending trial); Truax v. Bisbee
Local, No. 380, Cooks’ & Waiters’ Union, 19 Ariz. 379, 393–94 (1918)
(upholding dismissal of a complaint seeking to enjoin peaceful picketing).
These prior-restraint cases align with the prevailing territorial-era view that
federal and state free-speech clauses primarily emanate from a desire to
prevent governmental censorship, which “was inconsistent with free
institutions.” See State v. Tugwell, 52 P. 1056, 1060 (Wash. 1898); see also
Ariz. Const. art. 2, § 1 (“A frequent recurrence to fundamental principles is

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Opinion of the Court

essential to the security of individual rights and the perpetuity of free
government.”).

i. “Freely” Speaking Is Harmonious With The Exercise Of
General Regulatory Authority

¶36 Nonetheless, Arizonans in 1911 understood that although
“freely speaking, writing, and publishing” provided robust protection
against censorship, it did not render expression “free” from the
government’s legitimate exercise of its general regulatory powers,
including its police power. See Ernst Freund, The Police Power, Public Policy
and Constitutional Rights § 15 (1904) (noting that “speech and press are
primarily free,” yet remain subject to restraints and burdens adopted “in
the interest of good order or morality”); Roebuck v. Mayo Clinic, 260 Ariz.
384, 395 ¶ 29 (2025) (recognizing “inherent police powers” arising under
Ariz. Const. art. 4, part. 1, § 1); State ex rel. Brnovich v. City of Tucson,
242 Ariz. 588, 600 ¶ 47 (2017) (describing the state’s “broad police power”
as protecting “life, liberty, and property” and preserving “the public peace
and order” (quoting Luhrs v. City of Phoenix, 52 Ariz. 438, 444 (1938))).
Arizonans both before and after statehood understood that the police
power permitted reasonable regulation of expression when necessary to
secure and promote public health, safety, morals, and general welfare. See
Allen v. State, 14 Ariz. 458, 480 (1913) (recognizing the state’s police power);
Aiton v. Bd. of Med. Exam’rs of Ariz., 13 Ariz. 354, 357 (Ariz. Terr. 1911)
(recognizing the territory’s police power); see also State v. Harold, 74 Ariz.
210, 216 (1952) (“[S]o long as the [L]egislature enacts laws reasonably
necessary for the preservation of the public health, safety, morals or general
welfare of the public it is acting within the police power of the state.”); Am.
Fed’n of Lab. v. Am. Sash & Door Co., 67 Ariz. 20, 26–27 (1948) (stating that
police power is “one of the powers impliedly reserved to the states by the
Tenth Amendment”). 4

¶37 Territorial practice confirms this understanding. The 1864
Howell Code, for example, included a criminal libel provision punishing
“malicious defamation” of those living or dead, when expressed in print,
signs, or pictures, while preserving a truth defense. See Howell Code,
ch. X, § 122 (1864). Just over a decade before statehood, the 1901 Revised

4 The states’ plenary police power further distinguishes state constitutions
from federal constitutions and counsels caution before importing federal
constitutional doctrine.
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Statutes contained several criminal laws impacting expressive acts,
including prohibiting obscene or indecent writings and drawings; singing
lewd or obscene songs in a public place; and creating and distributing
advertising materials that promoted contraception or abortion. See Rev.
Stat. Ariz. Territory, Penal Code, tit. IX, ch. 83, §§ 283(3), (5); 288 (1901).

¶38 Territorial municipalities also enacted ordinances impacting
free expression. Immediately before statehood, for example, the City of
Tucson required various trades and occupations to procure licenses. See
Charter & Ordinances of the City of Tucson, Ord. 283, § 1 (1910). It also
excluded “offensive or unwholesome” businesses, including dance halls,
from incorporated areas. See id. Ord. 200, § 1.

¶39 The first post-statehood Legislature confirmed the territorial
understanding by enacting laws impacting expression. For instance, it
prohibited misleading or false labeling of food and beverages. See 1912
Ariz. Sess. Laws ch. 62 (1st Spec. Sess.). It also authorized cities to adopt
reasonable time, place, and manner restrictions on expression—for
example, prohibiting “disorderly noise or disturbance,” regulating “crying
of goods,” regulating performances that drew crowds, and licensing public
exhibitions. See 1913 Ariz. Rev. Stat. Civ. Code tit. VII, ch. 2 § 1831; see also
Freund, supra ¶ 36, § 480 (recognizing that public assemblies may be
reasonably regulated as to “time and place, and number and duration of
meetings”); City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994) (characterizing sign
regulations as an exercise of a municipality’s police powers).

¶40 Municipal ordinances adopted around statehood further
demonstrate this settled expectation. The City of Tucson, for instance,
restricted posting advertisements and other writings on lamp posts. See
Charter & Ordinances of the City of Tucson, Ord. 44, § 9 (1910). The City of
Phoenix likewise authorized regulations concerning banners,
advertisements, and handbills, the construction of billboards, and the
operation of theaters and exhibitions. See Charter of the City of Phoenix ch. 4,
§ 2(15), (17), (31) (1913). It also authorized its council to “license, regulate,
restrain or prohibit all theaters, exhibitions, public shows [and] dance
halls.” Id. ch. 4, § 2(31).

¶41 Finally, Arizonans in the statehood era understood and
accepted that the police power enabled the government to compel factual,
nonideological disclosures necessary to protect public health, safety, and
welfare. See Aiton, 13 Ariz. at 357; Allen, 14 Ariz. at 480 (holding that the
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Opinion of the Court

relevant act was a valid exercise of the state’s police powers). The 1901
Revised Statutes compelled political party committees within thirty days of
an election to file statements “setting forth in detail all sums of money
received, from whom received, and to whom and for what purpose such
money was paid by such committees, during the preceding election.” See
Rev. Stat. Ariz. Territory, Penal Code, tit. IV, § 66 (1901). Tucson’s
ordinances also illustrate the exercise of police-power measures in the
compelled-expression context: saloons had to post “No minor allowed
here” signs; businesses were prohibited from selling obscene language and
lewd books; homeowners had to report contagious diseases suffered by
residents and maintain a publicly posted warning outside their homes;
officiants had to report marriages; physicians had to report births and
deaths; milk wagons had to display the proprietor’s name and license;
gambling businesses were barred within one mile of the city; and poisons
had to be labeled as such. See Charter & Ordinances of the City of Tucson,
Ord. 36, §§ 7, 13–14; Ord. 44, §§ 1, 6, 10, 18; Ord. 51, §§ 2–4; Ord. 200, § 1;
Ord. 306, § 6 (1910). These enactments, existing before and at statehood,
evidence Arizonans’ understanding that the exercise of the State’s police
powers for health, safety, and welfare—as illustrated—did not conflict with
Arizonans’ right to speak “freely.”

¶42 The dissent reaches a different conclusion. It accepts that the
state retains its police power but views the Clause’s textual limitation—that
speakers are “responsible for the abuse of that right”— as defining what the
police power may reach. See infra ¶¶ 161–64. Under the dissent’s
interpretation, lawmakers may regulate expression only when the
expression constitutes an abuse, which the dissent defines to include
“violating laws that maintain public order and safety.” See id. This
interpretation suffers from two related problems.

¶43 First, it asks the Clause to do something the text does not say
or require. “[R]esponsible for the abuse of that right” is grammatically
directed at the speakers, not at lawmakers. It tells speakers who exercise
the right that they remain answerable for harms their speech causes to the
community or individuals. It does not tell lawmakers what categories of
expression they may regulate. To convert the provision into a substantive
cap on legislative reach, one would have to rewrite it to say something like,
“lawmakers may regulate only abuses of that right.” The Clause says no
such thing. And the historical record confirms that Arizonans in 1911 did
not understand it to say so. Arizonans lived under and accepted a
substantial body of police-power regulation affecting expression—electoral

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Opinion of the Court

disclosures, restrictions on posting advertisements, reporting laws,
licensing, and the like—all of which would be unconstitutional under the
dissent’s reading, yet which Arizonans regarded as fully consistent with the
right to speak freely. See supra ¶¶ 36–41.

¶44 Second, the dissent’s reading falls victim to the very critique
our colleagues level at us. By defining “abuse” to include “violating laws
that maintain public order and safety,” the dissent makes its substantive
limit on legislative reach coextensive with whatever lawmakers have
chosen to enact for those purposes. The category of “abuse,” which is
purportedly the textual constraint on police-power regulations, is bounded
only by the police power’s own exercise. Yet the dissent elsewhere attacks
our framework as “nebulous and sweeping [and] invit[ing] government
suppression of speech.” See infra ¶ 129. That charge has no force against
us, because our framework subjects every police power regulation to the
inquiries set forth below. See infra ¶¶ 52–56. But it has real force against
the dissent’s own interpretation. Once “abuse” is defined to include
violations of laws maintaining public order and safety, the dissent’s textual
limit becomes whatever lawmakers have enacted for those purposes—the
very lack of a limiting principle the dissent attributes to our framework.

¶45 The Clause actually says something simpler. The right to
speak “freely” describes the conditions under which expression occurs, and
Arizonans in 1911 understood those conditions to include the legitimate
exercise of the state’s police power, subject to judicial review. See supra
¶¶ 36–41. “[R]esponsible for the abuse of that right” describes what
follows after expression has occurred: the speaker who exercises the right
and causes harm bears responsibility for the consequences—civil, criminal,
or otherwise—the law has provided. These two concepts do not compete
in the same regulatory space. They serve different functions and operate
at different times. The dissent’s reading conflates them, and the conflation
cannot be reconciled with either the Clause’s text or its history. Our
reading, by contrast, gives each provision the function its text supports: it
preserves the robust protection of speaking “freely” while preserving the
accountability the text expressly contemplates. That, we conclude, is what
Arizonans in 1911 understood the Clause to mean.

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ii. “Freely” Speaking Is Harmonious With The State’s
Exercise Of Constitutional Directives

¶46 Arizonans at statehood also understood that the Arizona
Constitution itself required the Legislature to enact certain laws, even when
doing so might incidentally restrain or compel expression. Most notably,
the Constitution directs the Legislature to enact laws “providing for a
general publicity” of contributions to campaign committees and
candidates, and “to secure the purity of elections and guard against abuses
of the elective franchise.” See Ariz. Const. art. 7, §§ 12, 16. It further
authorizes the state to compel production of certain corporate records to
effectuate “the full visitorial and inquisitorial powers of the state,” see Ariz.
Const. art. 14, § 16, and to compel testimony regarding “the guilt of
any . . . person or corporation charged with bribery or illegal rebating,” see
id. art. 2, § 19. And it obligates the Legislature to establish and maintain a
“general and uniform public school system” and “provide for the education
and care of pupils who are hearing and vision impaired,” which necessarily
encompasses authority over curriculum and classroom expression. See id.
art. 11, § 1. These examples illustrate that the Constitution itself compels
disclosure to various ends. Any constitutionally directed legislation, like
police-power regulation, remains subject to judicial review under the
framework set forth below. See infra ¶¶ 52–56.

iii. “Freely” Speaking Does Not Tolerate Other
Interferences

¶47 The Speak Freely Clause tolerates no censorship or
restraint—major or minor—on the right to speak, write, or publish on any
subject except through the state’s proper exercise of its regulatory authority
and in accordance with the Constitution’s directives. See Mountain States,
160 Ariz. at 357. That is what it means to speak, write, and publish
“freely.” Although courts may sometimes accommodate competing
constitutional interests, such as the right to a fair trial, they may not dilute
speech protections merely for reasons of administrative ease, policy
preference, or other regulatory convenience. See id. Instead, we apply
the Clause as written, in context, and as understood at statehood. See id.
Simply put, for speech that falls within the Clause’s protective scope and is
not subject to a valid exercise of the state’s regulatory authority or a
constitutional directive, there is no such thing as “good enough” protection.

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Opinion of the Court

(2) How Should Courts Evaluate Challenges To Speaking
“Freely”?

¶48 So where does this leave us? Sometimes, the inquiry and
outcome will be straightforward. Unless the expression at issue conflicts
with another constitutional right, laws that censor, hinder, or compel
speech, when not grounded in the state’s proper exercise of its regulatory
power or a constitutional directive, must be stricken as violating the Speak
Freely Clause. See supra ¶¶ 34–46. When laws enacted pursuant to the
state’s regulatory authority or a constitutional directive interfere with or
compel speech, we evaluate challenges under different standards,
depending on whether the law is a time, place, and manner restriction or
otherwise impacts expression.

i. Evaluating Time, Place, and Manner Restrictions

¶49 In Mountain States and Stummer, we set out Arizona-specific
standards for evaluating laws that regulate when, where, and how
expression can be made. Contrary to the dissent’s assertion, these
standards are neither “new” nor “unprecedented.” See infra ¶ 129.
Those cases establish that we evaluate challenges differently depending on
whether the law is content-neutral or content-based. Because the Speak
Freely Clause vigorously protects the right to speak, write, and publish on
any subject, we more closely scrutinize laws that single out expression
based on its disfavored content. See Stummer, 219 Ariz. at 144 ¶ 23. A
law that survives scrutiny as a valid time, place, and manner regulation
does not interfere with Arizonans’ right to “freely” speak, write, and
publish under the Speak Freely Clause and must be upheld.

¶50 For content-neutral laws that regulate the time, place, or
manner of speech, we have adopted for our own the test used in First
Amendment jurisprudence. See Mountain States, 160 Ariz. at 357–58.
Thus, to determine whether a time, place, and manner regulation is
reasonable and thus permissible under the Speak Freely Clause, the State
must show that the regulation: (1) is content-neutral; (2) serves a significant
governmental interest; and (3) is drawn with narrow specificity to
minimize interference with the ability of speakers to communicate with
others. See id.

¶51 For content-based time, place, and manner regulations, a
more searching two-step inquiry applies. See Stummer, 219 Ariz. at 144

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Opinion of the Court

¶ 24. First, once the challenger shows interference with expression, the
state must demonstrate that the regulation targets secondary effects of the
speech rather than suppressing protected expression. See id. ¶ 25.
Courts defer to the enacting body’s explanation at this step. See id. at 145
¶ 27. Second, if the state satisfies that showing, courts then assess whether
the regulation (1) protects a substantial governmental interest;
(2) significantly furthers that interest; and (3) does not unduly burden
protected expression. Id. at 144–45 ¶ 27. No deference is given at this
stage. See id.

ii. Evaluating Compelled Electoral Disclosure Laws

¶52 When a law enacted under the state’s regulatory power or a
constitutional directive affects expression but is not a time, place, and
manner restriction—such as requirements for factual disclosures,
professional warnings, licensing, zoning, or administrative reporting—we
review any burden on speech under a distinct approach. Because our
caselaw in this area is limited, and we are mindful that broader
pronouncements could affect situations not before us, we confine today’s
discussion to the standard for reviewing compelled electoral disclosure
laws like the Act, which requires covered persons to disclose the identity of
major donors whose funds are used for campaign media.

¶53 The Act is consistent with the Arizona Constitution’s
directive to enact registration and other laws “to secure the purity of
elections and guard against abuses of the elective franchise.” See Ariz.
Const. art. 7, § 12; see also Prop. 211, § 2(B) (describing the Act’s purpose and
intent in part as “to prevent corruption and to assist Arizona voters in
making informed election decisions by securing their right to know the
source of monies used to influence Arizona elections”). It may also serve
the public welfare. See Am. Fed’n of Lab., 67 Ariz. at 27.

¶54 Given the Constitution’s twin commitments to robust free
expression and election integrity and transparency, an Arizona-specific
standard is warranted, one that invalidates laws that either fail to advance
election integrity or transparency or that impose unreasonable burdens or
hindrances on speech. Thus, once a challenger shows that protected
expression is at stake, the state (or a private party defending the law) must
show that the disclosure requirement (1) meaningfully furthers election
integrity or transparency; and (2) does not unreasonably burden or hinder
protected expression. See Stummer, 219 Ariz. at 144–45 ¶ 27 (emphasizing

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Opinion of the Court

an “undue burden” inquiry); Harold, 74 Ariz. at 216 (stating that laws
“reasonably necessary” for public welfare are a valid exercise of the state’s
police power); cf. Stanwitz v. Reagan, 245 Ariz. 344, 348 ¶ 14 (2018)
(permitting statutes to regulate constitutional provisions if they “‘do[] not
unreasonably hinder or restrict the constitutional provision and if the
[statute] reasonably supplements the constitutional purpose’ of the
provision” (second alteration in original) (citation omitted)).

¶55 The “unreasonable burden or hindrance” part of this inquiry
has both factual and justificatory components. As the party best
positioned to know how the law affects its expressive activity, the
challenger must first show that disclosure imposes a concrete,
non-speculative burden—such as creating a credible risk of threats,
harassment, or comparable harms that would chill future speech—or that
the law compels them to convey views they do not endorse. See Brush &
Nib Studio, 247 Ariz. at 305 ¶ 166; Phx. Newspapers, 101 Ariz. at 260; see also
Stummer, 219 Ariz. at 144 ¶ 25 (imposing a similar requirement for
content-based time, place, and manner laws); Woerth v. City of Flagstaff,
167 Ariz. 412, 419 (App. 1990) (“When proof of a negative assertion lies
peculiarly within the knowledge of the adverse party, the burden of coming
forward with evidence shifts to that party” (quoting in part Sw. Cotton Co.
v. Ryan, 22 Ariz. 520, 533 (1921) (citation modified))). This threshold
showing is important because, although the Speak Freely Clause protects
expressive activity broadly, it does not specifically address financial
contributions, associative anonymity, or records of political spending, and
yet other constitutional provisions reflect strong commitments to electoral
transparency. See Ariz. Const. art. 2, § 6; art. 7, §§ 12, 16; art. 14, § 18.
This showing by the challenger does not relieve the state of its ultimate
burden to justify the law’s interference with expression; it simply identifies
whether the challenger has plausibly alleged an undue-burden problem
requiring justification.

¶56 Once the challenger makes this threshold showing, the state
bears the burden of showing that the law does not unreasonably burden or
hinder protected expression. See Stummer, 219 Ariz. at 145 ¶ 27. The
reasonableness of any burden or hindrance will depend on the importance
of the state interest at stake, whether the law furthers that interest, and the
degree to which the law burdens or hinders expression. See id. ¶¶ 28–30.
If the state satisfies this standard, the law does not unconstitutionally
interfere with Arizonans’ ability to “freely” speak, write, or publish. But
if the state does not succeed, the law may only survive the challenge if it
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Opinion of the Court

addresses “abuses” of speech, like defamation, fraud, or other harmful acts.
See Ariz. Const. art. 2, § 6; see also Yetman v. English, 168 Ariz. 71, 82 (1991)
(recognizing defamation as unprotected speech); Truax, 19 Ariz. at 394
(characterizing “abuse” as “harm of another” or harm to the public).
Absent such an abuse, the Clause does not tolerate laws and regulations
that unreasonably interfere with protected expression. See Mountain
States, 160 Ariz. at 357. Because this framework bears some resemblance
to First Amendment exacting scrutiny analysis, we may consult that related
jurisprudence where helpful. See Mixton, 250 Ariz. at 290 ¶ 32; Stummer,
219 Ariz. at 144 ¶ 22. First Amendment jurisprudence is helpful, though,
only to the extent it illuminates the practical consequences of disclosure,
both beneficial and burdensome, not because it supplies the governing
standard. The Speak Freely Clause remains an independent source of
constitutional protection.

¶57 The dissent characterizes our framework as appearing “less
protective” than exacting scrutiny. See infra ¶ 236. The criticism misses
the mark because the comparison itself is misconceived. Just as the First
Amendment does not set the floor for protections afforded by the Speak
Freely Clause, see supra ¶ 30, exacting scrutiny does not set the floor for our
analysis under it.

¶58 In any event, our framework is not less protective. Exacting
scrutiny asks whether a disclosure requirement bears a “substantial
relation” to a “sufficiently important” governmental interest and, if so,
whether the regulation is narrowly tailored to serve that interest. See
Bonta, 594 U.S. at 608; Citizens United, 558 U.S. at 366–67. Our standard
correspondingly requires the law’s defender to show both that the
disclosure requirement meaningfully furthers election integrity or
transparency and, independently, that the law does not unreasonably
burden or hinder protected expression. See supra ¶¶ 53–56. The two
inquiries may weigh similar considerations, but our framework structures
them differently. Once a challenger plausibly alleges a concrete
burden—threats, harassment, reprisals, compelled association, or
comparable chilling effects—the state must justify the regulation in light of
the importance of the asserted interest, the degree to which the law
advances it, and the burden imposed. See supra ¶¶ 53–56. That structure
is not a diminution of the federal standard; if anything, it makes the
analytical sequence stronger and more transparent and assures that the
burden on free expression receives the explicit attention the Speak Freely

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Clause demands. Federal cases may inform that analysis, but they do not
direct it.

¶59 In sum, challenges under the Speak Freely Clause are
evaluated through an Arizona-specific framework rooted in the Clause’s
text, context, and public meaning at statehood. Courts first determine
whether the expression at issue is protected and then evaluate whether the
challenged law prevents people from “freely” engaging in that expression.
The Clause generally forbids prior restraints and compelled speech laws,
but it accommodates reasonable regulations enacted pursuant to the state’s
regulatory authority or constitutional directives. Time, place, and manner
restrictions are reviewed under the standards set forth in Mountain States
and Stummer, depending on whether they are content-neutral or
content-based. Compelled electoral disclosure laws, like the Act, are
examined under an Arizona-specific standard. This approach preserves
the Speak Freely Clause’s full protective force while recognizing the
Constitution’s equally deliberate commitment to transparent and fair
elections.

2. Plaintiffs’ Facial Claim Does Not Survive
Arizona-Specific Scrutiny

a. Step One: The Challenge Concerns Protected
Expression

¶60 We first consider whether Plaintiffs have sufficiently alleged
that the Speak Freely Clause protects the expression at issue. See Coleman,
230 Ariz. at 357 ¶ 18. Plaintiffs allege that the Act violates the Clause by
requiring covered persons to disclose major donors who fund campaign
media spending, which in turn discourages the Doe plaintiffs and others
from making donations for that purpose and deters CAP, FEC, and similar
organizations from engaging in such spending to protect their donors’
identities. Thus, the expression at issue is donors’ contributions to
organizations for the purpose of funding campaign media and those
organizations’ spending for campaign media.

¶61 At most, these contributions are expressive conduct, which
the Speak Freely Clause does not specifically address. See Ariz. Const.
art. 2, § 6; see also Ino Ino, 937 P.2d at 163 (noting the absence of language
relating to expressive conduct in Washington’s free-speech clause). Still,
at statehood “to speak” could involve more than verbalizing. More

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Opinion of the Court

expansively, it also meant “to convey sentiments, ideas, or intelligence as if
by utterance” and “to express in any way.” See Speak, Webster’s Int’l
Dictionary of the Eng. Language (1907); see also William Shakespeare,
Richard II act 5, sc. 3, l. 129 (“Thine eye begins to speak.”). We know
Arizonans at statehood spoke sentiments and ideas through gestures and
other conduct—for example, wearing yellow ribbons or carrying yellow
flowers to express support for women’s suffrage—and did so free from
government censorship. See Katherine Kitterman, Suffrage Colors
Explained, Utah Women’s History (July 10, 2020) (available at
utahwomenshistory.org/2020/07/suffrage-colors-explained).
Accordingly, because the Speak Freely Clause guarantees the continued
exercise of free-speech rights enjoyed at statehood, it guarantees the right
to freely engage in expressive conduct. See Bird v. State, 184 Ariz. 198, 204
(App. 1995); see also id. at 202 n.2 (applying the Speak Freely Clause to
expression albeit using First Amendment jurisprudence); Cooley, supra
¶ 28, at 512–13.

¶62 However, not every act intended to be expressive is protected
by the Speak Freely Clause. See Bird, 184 Ariz. at 204. To determine
whether conduct is expressive, we ask whether “[a]n intent to convey a
particularized message was present, and [whether] the likelihood was great
that the message would be understood by those who viewed it.” Id.
(alterations in original) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)).
Because donating to an organization for the express purpose of funding
campaign media or knowingly permitting one’s donation to be used for that
purpose is objectively understood as conveying agreement with the
resulting message, we conclude that such contributions constitute
expressive conduct protected by the Speak Freely Clause. See McCutcheon
v. FEC, 572 U.S. 185, 204 (2014) (characterizing campaign contributions as
an exercise of expressive rights under the First Amendment); Doe, 561 U.S.
at 195 (stating that a signature on a referendum petition expresses a
viewpoint). Similarly, spending for campaign media objectively reflects
an organization’s agreement with the message and is therefore expressive
conduct. See McCutcheon, 572 U.S. at 204. Plaintiffs have therefore
adequately alleged that expression protected by the Speak Freely Clause is
at issue.

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Opinion of the Court

b. Step Two: Plaintiffs Do Not Sufficiently Allege That
The Act Prevents Donors And Covered Persons From
“Freely” Speaking In A Substantial Number Of
Applications Relative To The Act’s Legitimate
Sweep

i. The Disclosure Requirements Meaningfully
Further Election Integrity and Transparency

¶63 Using disclosure requirements to advance integrity and
transparency in election spending is deeply rooted in Arizona’s history.
On the eve of statehood, territorial law already required candidates and
political committees to file detailed public reports disclosing the sources
and expenditures of campaign funds, both direct and indirect through
intermediaries. Rev. Stat. Ariz. Territory, Penal Code. pt. 1, tit. IV, § 66
(1901). At the same time, an early and identical version of the Speak Freely
Clause, contained within the territorial bill of rights, guaranteed the right
to speak “freely” but held speakers accountable for abuses of that right.
Rev. Stat. Ariz. Territory, tit. I, ch. 1, § 16 (1901). Taken together, these
provisions reflect the territorial understanding that free-speech protections
did not shield campaign-related contributions, even those made through
intermediaries, or contributor identities from reasonable publicity
requirements.

¶64 The constitutional framers did not depart from that
understanding. Nothing in the constitutional convention debates
suggests that mandatory disclosure of campaign contributions was thought
to violate the Speak Freely Clause. On the contrary, the framers
embedded election transparency into the Constitution itself as a defining
feature of Arizona’s new government.

¶65 Alongside the Speak Freely Clause, the framers included the
“General Publicity Clause,” requiring the first Legislature to pass a law
mandating disclosure before and after elections “of all campaign
contributions to, and expenditures of campaign committees and candidates
for public office.” 5 Ariz. Const. art. 7, § 16. Article 7, section 12 likewise

5 Plaintiffs misapply the exclusio alterius principle of statutory construction
in arguing that the General Publicity Clause bars publication of
election-related contributions that are not made directly to campaign
committees or candidates. The exclusio alterius principle means that if a

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Opinion of the Court

directs the Legislature to enact “registration and other laws to secure the
purity of elections and guard against abuses of the elective franchise.”
And as previously described, article 14, section 18 prohibits corporations
from making contributions “for the purpose of influencing any election or
official action.” These provisions demonstrate a constitutional intent to
direct the exercise of the police power to ensure transparent and
corruption-resistant elections and reasonably encompass legislation
requiring disclosure of contributors to groups that expend significant
resources to independently support or oppose candidates or ballot
measures.

¶66 Plaintiffs argue that because the framers did not adopt an
earlier, more expansive version of what became the General Publicity
Clause, they implicitly prohibited disclosure provisions like those in the
Act. The dissent likewise argues that failure of the earlier proposal
“expressly rejected” legislative authority to enact such disclosure
provisions. See infra ¶ 208. We disagree. Plaintiffs’ and the dissent’s
position conflicts with the well-established principle that the Arizona
Constitution “does not grant power, but instead limits the exercise and
scope of legislative authority.” Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 5 ¶ 13 (2013). Because the General Publicity Clause does not
prohibit broader disclosure laws, the People were free to enact the Act. See
id. (“[W]e do not look to the constitution to determine whether the
[L]egislature is authorized to act.” (quoting Citizens Clean Elections Comm’n
v. Myers, 196 Ariz. 516, 520 ¶ 12 (2000) (citation modified))).

¶67 The constitutional records further support this
understanding. They do not precisely reflect why the framers chose the
General Publicity Clause’s final language, but debates indicate a consensus

law specifically lists certain things within a category, it implies the drafters
intended to exclude non-listed things from the same category. See Sw. Iron
& Steel Indus. v. State, 123 Ariz. 78, 79 (1979). But even if this principle
applies here, it does not support Plaintiffs’ argument. It would simply
mean that indirect, election-related contributions are excluded from the
mandatory publication required by the General Publicity Clause. See id.
But that would not prohibit the Legislature or the People from enacting
further disclosure requirements. See Matthews v. Indus. Comm’n of Ariz.,
254 Ariz. 157, 161 ¶ 19 (2022) (noting the Legislature is free to enlarge the
scope of workers’ compensation beyond that mandated by the
Constitution). And the Legislature has done so. See supra ¶ 3 n.1.
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that the Constitution should establish fundamental principles while leaving
implementation details to legislative enactment. The Records of the Arizona
Constitutional Convention of 1910, 145–50 (John S. Goff ed., 1991). As
delegate Jones explained when discussing disclosure deadlines, the framers
did not “go into every detail” because they believed it was not their role to
draft “every law that is legislative in nature,” and that such matters should
be left “to the people or to the [L]egislature.” Id. at 149–50. Nothing in
the debates suggests an intent to prohibit additional electoral disclosure
laws. On the contrary, it appears the framers desired as much
transparency as reasonably achievable through future legislation. See
Ariz. Const. art. 7, § 12.

¶68 The emphasis on election transparency is entirely consistent
with the framers’ broader progressive approach. See John D. Leshy, The
Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 30–31 (1988) (describing
the national progressive movement’s influence on the framers). The
Arizona Constitution as a whole embodies the progressive conviction that
Arizonans—the People—should exercise direct control over government
through elections free from distortion. See Ariz. Const. art. 2, § 21
(guaranteeing that all elections are “free and equal” and that “no power,
civil or military, shall at any time interfere to prevent the free exercise of the
right of suffrage”); id. art. 4, pt. 1, § 1 (establishing initiatives and
referenda); id. art. 7, § 1 (requiring a secret ballot); id. art. 7, § 10 (mandating
direct primary elections); id. art. 8, pt. 1, §§ 1–6 (providing for the recall of
public officials). These provisions reflect the progressives’ determination
to ensure that political institutions remained accountable to the People
rather than captured by powerful economic interests. See Leshy, supra
¶ 68, at 89–90 (quoting delegate Cunniff’s observation that “in almost every
state . . . corporations have altogether too much influence in the [state’s]
direction and control” (alteration in original)); T. Roosevelt, The New
Nationalism, 21, 30 (1910) (urging that “special interests should be driven
out of politics” and advising that “all moneys received or expended for
campaign purposes should be publicly accounted for” before and after an
election).

¶69 Early post-ratification events confirm that the People viewed
compelled disclosure laws as important to the constitutional commitment
to fair and transparent elections and yet consistent with the free-speech
guarantee. Only months after statehood, the Legislature implemented
article 7, section 16, the General Publicity Clause, and article 7, section 12,
the purity-of-elections provision, requiring candidates and campaign

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Opinion of the Court

committees to disclose contributions, loans, promises of support, and the
names and addresses of contributors. See 1912 Ariz. Sess. Laws ch. 69,
§§ 6–7 (1st Spec. Sess.). Candidates also had to report “every promise or
pledge made by him or by any one for him” to secure another’s support.
Id. § 7. Thus, Arizonans at statehood did not embrace the idea of
anonymous campaign donations but instead recognized that anonymous
donations in the election context were not protected by the Speak Freely
Clause.

¶70 The dissent takes the opposite view by suggesting that
Arizonans at statehood valued anonymous donations in elections. See
infra ¶ 168. For support, it states that a national suffrage group collected
anonymous donations and, in turn, contributed some of that money to
support Arizona’s women’s suffrage ballot measure in 1912. Infra ¶ 168.
The report cited by the dissent for this proposition shows that the National
American Woman Suffrage Association indeed made a single donation to
support Arizona’s measure. See Forty-Fourth Annual Report of the National
American Woman Suffrage Association, at 42 (1912). But although the
Association itself apparently drew on anonymously donated funds,
nothing in the report suggests Arizonans were aware of that fact. From
their perspective, the donor was the National American Woman Suffrage
Association, an identified, public organization. The dissent’s evidence
thus shows, at most, what the Association did—not what Arizonans
understood or accepted. See id.

¶71 Five years later, dispelling any doubt about Arizonans’ view
of anonymous donations in ballot measure campaigns, the Legislature
prohibited anonymous electioneering communications regarding
initiatives and referenda, requiring persons who paid for such
communications, even in part, to disclose their identities. See 1917 Ariz.
Sess. Laws ch. 47, § 1 (Reg. Sess.). The substance of this law is now
generally encompassed within the Act. The dissent states that the U.S.
Supreme Court invalidated a California law restricting the distribution of
anonymous handbills in Talley v. State of California, 362 U.S. 60 (1960), and
suggests that comparable infirmities in the 1917 law prevented it from
being enforced. See infra ¶ 230. It cites no evidence for this claim, and
none is apparent. The California ordinance in Talley was not similar to the
1917 law; it broadly prohibited all anonymous leafletting. See Talley,
362 U.S. at 60–61. Neither the 1917 law nor the Act imposes a ban like the
ordinance in Talley. They simply impose disclosure requirements, which

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Opinion of the Court

have been permitted as consistent with free speech guarantees. 6 See
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 353–56 (1995)
(distinguishing anonymous leafletting from compelled disclosures in the
election context).

¶72 Statutes similar to Arizona’s were widespread nationally,
confirming that early legislatures viewed such disclosure requirements as
important and compatible with state constitutional free-speech protections.
See id. at 376–77 (Scalia, J., dissenting) (describing similar laws in the early
part of the Twentieth Century as “widespread” and “long-established,”
thereby evidencing that such disclosures were not considered as “go[ing]
to the heart of free speech”). We agree with the Washington Supreme
Court that the People, “acting as legislators on ballot propositions,” possess
their own free-speech right to know who is attempting to influence their
votes. State v. Grocery Mfrs. Ass’n, 461 P.3d 334, 346 ¶ 45 (Wash. 2020)
(“[T]he right to receive information is the fundamental counterpart of the
right of free speech.” (quoting Fritz v. Gorton, 517 P.2d 911, 924 (Wash. 1974)
(plurality opinion))).

¶73 The dissent acknowledges the statehood-era disclosure
requirements but, pointedly ignoring the 1917 law, asserts that none
concerned the types of disclosures the Act requires. See infra ¶ 168. From
this it concludes that the Speak Freely Clause “protects a person’s right to
donate anonymously to organizations that are not candidates or campaign
committees.” Infra ¶ 168. But that conclusion mistakes specific historical
applications for the constitutional principle they reflect. The statehood
disclosure requirements embodied a single animating principle: that the
public has a right to know who is financing efforts to influence their votes.
That principle did not fossilize with its statehood-era applications. The
framers established it and deliberately left implementation to future
legislation, precisely because they recognized that circumstances would
change. See supra ¶ 67 (noting delegate Jones’s explanation that the

6 The 1917 law was repealed, at the latest, when the Legislature adopted
the Arizona Revised Statutes in 1956. See A.R.S. § 1-102 (repealing “[a]ll
laws and statutes of a general, public and permanent nature”). The dissent
implies that the law was ill-fated and never enforced but cites no evidence
for that claim. See infra ¶ 230. More fundamentally, the implication
misses the point: by enacting the 1917 law, the statehood-era Legislature
demonstrated that disclosure requirements of that kind were consistent
with the Speak Freely Clause.
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framers deliberately avoided specifying every detail, leaving such matters
“to the people or to the [L]egislature”). Modern campaign media and its
funding sources are a change in circumstances, not a change in principle.

¶74 Arizona’s early enactments, adopted in the state’s formative
years, confirm that the framers and the People viewed disclosure of
election-related contributions and contributor identities as essential,
effective tools in preserving fair and transparent elections. See Ino Ino,
937 P.2d at 165 (stating that “statutes from the time of the constitution’s
ratification” are persuasive in deciding whether a provision gives more
protection in an area). From the territorial era through the first legislative
sessions after statehood, Arizona maintained an uninterrupted practice of
election finance disclosure. That continuity reflects a consistent
understanding that the integrity of elections depends in part on the public’s
ability to know who is financing efforts to influence their votes.

¶75 This understanding accords with First Amendment
jurisprudence, which recognizes election transparency as a critical
safeguard. Disclosure enables voters to evaluate messages, deters
corruption and its appearance, and helps maintain public confidence in
democratic processes. 7 See Doe, 561 U.S. at 198 (approving the assertion
that “promoting transparency and accountability in the electoral process”
is “essential to the proper functioning of a democracy”); Citizens United,
558 U.S. at 339, 370 (“The right of citizens to inquire, to hear, to speak, and
to use information to reach consensus is a precondition to enlightened
self-government and a necessary means to protect it;” further, the prompt
disclosure of expenditures enables people to “see whether elected officials
are ‘in the pocket’ of so-called moneyed interests.” (quoting McConnell,

7 Plaintiffs argue that an anti-corruption justification does not apply here
because it is unique to contributions for media concerning candidates for
office. Whether or not this is accurate, Plaintiffs overlook that the Act also
applies to contributions for campaign media concerning candidates, and
Plaintiffs seek to invalidate the entire Act, not just the provisions applicable
to ballot measures. Also, FEC funds campaign media promoting or
opposing candidates and claims that the Act unconstitutionally burdens
that activity. And CAP publishes a voter’s guide concerning candidates
that arguably constitutes campaign media. Thus, the anti-corruption
justification is relevant here. See Citizens United, 558 U.S. at 361
(acknowledging that “[i]f elected officials succumb to improper influences
from independent expenditures,” there is cause for concern).
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540 U.S. at 259 (Scalia, J., dissenting))); McConnell, 540 U.S. at 197 (agreeing
that “uninhibited, robust, and wide-open speech [cannot] occur when
organizations hide themselves from the scrutiny of the voting public”);
Buckley, 424 U.S. at 67 (“A public armed with information about a
candidate’s most generous supporters is better able to detect any
post-election special favors that may be given in return.”). As Justice
Brandeis famously observed, “[p]ublicity is justly commended as a remedy
for social and industrial diseases [and] [s]unlight is said to be the best of
disinfectants.” Buckley, 424 U.S. at 67 (quoting L. Brandeis, Other People’s
Money 62 (National Home Library Foundation ed. 1933)). Arizona’s
Constitution and history reflect the same conviction.

¶76 The dissent invokes NAACP v. Alabama and First Choice
Women’s Resource Centers, Inc. v. Davenport, 146 S. Ct. 1114 (2026), to
illustrate that compelled disclosure of member or donor identities can
violate the First Amendment. See infra ¶¶ 182–83. We do not disagree.
But neither case prohibits election-related disclosures of the sort at issue
here. NAACP v. Alabama held that a state attorney general’s demand, in
the midst of segregation-era litigation, for the production of NAACP’s
membership rolls deterred members from pursuing their interests with the
organization without any showing of a state interest “sufficient to justify
the deterrent effect” the disclosure would cause. 357 U.S. at 463–66. The
Supreme Court has since drawn a consistent line between investigative
demands of that kind, which compel a group to surrender its entire
associational membership to a hostile state actor, and generally applicable
electoral disclosure regimes tied to identifiable campaign expenditures, the
latter of which the Court has repeatedly upheld under its application of
exacting scrutiny. See Buckley, 424 U.S. at 64–84; Citizens United, 558 U.S.
at 366–71.

¶77 First Choice does not disturb that line. It is a standing
decision, holding only that an investigative subpoena demanding nonprofit
donor information inflicts an injury sufficient to support a § 1983 suit.
146 S. Ct. at 1120, 1122. The Court explained why the alleged chill to
associational rights clears the injury-in-fact bar required for standing; it did
not announce a substantive rule invalidating electoral disclosure. See id.
at 1127–29. First Choice itself concerned an investigative subpoena to a
single nonprofit, id. at 1119, not a generally applicable electoral disclosure
regime. The Act falls squarely in the second category.

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¶78 For these reasons, Defendants have shown as a matter of law
that by requiring public identification of major donors funding campaign
media, the Act’s disclosure requirements meaningfully further election
integrity and transparency. Other courts have reached a similar
conclusion when applying the First Amendment. See, e.g., Human Life of
Wash., Inc. v. Brumsickle, 624 F.3d 990, 998–99, 1019 (9th Cir. 2010) (finding
a statute requiring disclosure of identifying information for political
advertising substantially related to the government’s informational
interest); Smith v. Helzer, 95 F.4th 1207, 1211–12, 1219–21 (9th Cir. 2024)
(same); No On E v. Chiu, 85 F.4th 493, 504–06 (9th Cir. 2023) (same).

¶79 Plaintiffs nevertheless argue the Act fails to meaningfully
further election transparency or integrity because it purportedly
“mandates” disclosure of “low‑level intermediary donors” who contribute
to entities such as churches or other § 501(c)(3) organizations and “may
never know about, much less intend to support” campaign media spending
by a downstream covered person. They illustrate their point with the
example of a donor who gives more than $2,500 to a church, which later
includes those funds in a bundled contribution to a covered person who
uses the money for campaign media. The dissent advances the same basic
point through two hypotheticals involving upstream donors of more than
$5,000 and multiple intermediaries. See infra ¶¶ 149–52. In Plaintiffs’
and the dissent’s view, requiring disclosure of an original donor who
neither intended nor even knew the funds would be used for campaign
media does not meaningfully inform voters who is promoting the message.

¶80 But these hypotheticals do not describe what the Act requires.
The better interpretation is that opt-out status remains a condition of
disclosure; it is not a protection that becomes meaningless once funds pass
through intermediaries. After a covered person exceeds the Spending
Threshold, § 16-973(A)(6) requires disclosure to the Secretary of State of
“each donor of original monies who contributed, directly or indirectly, more
than $5,000 of traceable monies or in-kind contributions for campaign media
spending during the election cycle to the covered person.” (Emphasis
added.) The Act defines “[t]raceable monies” as monies given to a
covered person “for which no donor has opted out of their use or transfer for
campaign media spending.” § 16-971(18)(a) (emphasis added). By using
the defined term “traceable monies” in the disclosure trigger, the Act makes
disclosure depend on whether the contribution falls within the statute’s
opt-out-based definition of traceable monies, rather than merely on
whether the funds can be traced from one entity to another.
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¶81 We therefore do not read the Act to mean that once an
individual donates to a church, charity, or other intermediary, that person’s
statutory protection against having the money used for campaign media
spending without notice simply vanishes. The narrower and better
reading is that when donated original monies pass through several hands,
the statute continues to account for their source and transfer history but
permits disclosure only if the donor contributed “traceable monies”— that
is, monies for which the donor, whether immediate or upstream, was given
notice and an opportunity to opt out of permitting the donation to be used
or transferred for campaign media spending. This interpretation
forecloses the compelled association hypotheticals Plaintiffs and the dissent
posit and best aligns with the Act’s stated purpose of preventing political
contributions from being funneled through intermediaries to conceal the
identities of persons knowingly underwriting campaign messaging
delivered to the public. See Prop. 211 § 2(C); see also Ariz. Downs v. Ariz.
Horsemen’s Found., 130 Ariz. 550, 554 (1981) (recognizing the Court’s “duty,
whenever possible, to give a construction to a statute which will render it
constitutional”).

¶82 To be sure, the Act does not answer every question about how
its notice and tracing provisions operate in all circumstances. For
example, it does not expressly specify who must provide upstream donors
notice of the opt-out opportunity or require a covered person to investigate
whether an immediate donor’s contribution includes original monies from
upstream donors. See § 16-972(D). Perhaps this is the type of detail left
to the Commission in implementing the Act. See § 16-974(A). We need
not resolve those implementation questions here. To the extent this
uncertainty creates real-world disclosure problems for particular upstream
donors who never received notice, that concern is properly addressed
through as-applied challenges or Commission rulemaking under
§ 16-974(A)—not through facial invalidation of the entire Act. The
dispositive point is that the Act’s disclosure obligation is triggered only by
“traceable monies,” and the Act defines that term to include only monies
“for which no donor has opted out of their use or transfer for campaign
media spending.” §§ 16-971(18)(a), -973(A)(6). The Act therefore cannot
be properly interpreted as compelling disclosure of donors who were never
given the opportunity to opt out of having their donations used for
campaign media. Thus, the donors in the hypotheticals offered by
Plaintiffs and the dissent would not be publicly identified. See infra
¶¶ 150–51.

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¶83 The dissent also suggests that only an opt-in regime could
sufficiently protect donor’s free-speech rights, relying on Knox v. Service
Employees International Union, Local 1000, 567 U.S. 298 (2012). See infra
¶ 188. But Knox arose in the distinct context of compelled union-fee
assessments imposed on nonmembers, permitting an annual dues opt-out
procedure for nonunion members but requiring an opt-in procedure for
special assessments or midyear dues increases during the year. See Knox,
567 U.S. at 314, 322 & n.9. Even if Knox supplied a useful analogy, it would
not support the dissent’s conclusion. Indeed, at least one court since Knox
has upheld a comparable opt-out feature against a First Amendment
challenge in the election-disclosure context. See Rio Grande Found. v.
Oliver, 154 F.4th 1213, 1228 (10th Cir. 2025) (upholding New Mexico’s
donor-disclosure provision and concluding that the statute’s guardrails,
including its opt-out mechanism, satisfied exacting scrutiny). Thus, while
the dissent may have identified a better policy approach, that is not our
charge in passing on the constitutionality of the Act.

¶84 Plaintiffs’ church hypothetical is flawed for an additional
reason. The Act expressly provides that it “does not require public
disclosure” of an original source that contributes $5,000 or less in an election
cycle. § 16‑973(A)(6), (G). The more‑than‑$2,500 trigger appears in the
internal tracing and recordkeeping provisions: upon a covered person’s
written request, the direct donor must identify “each other person” who
contributed more than $2,500 in original monies being transferred, and the
covered person must maintain “transfer records” for Commission
inspection on request. A.R.S. §§ 16‑971(19), ‑972(A), (D). Thus, for this
additional reason, the church hypothetical as framed, using amounts at or
below the Act’s operative “more than” thresholds, does not establish that
the Act compels public disclosure of an upstream donor’s identity.

¶85 Finally, the dissent also points out that transfer records
identifying persons who contributed more than $2,500 in original monies
must be produced to the Commission on request and argues that such
records could later become available under Arizona’s public-records laws.
See infra ¶ 142. But that possibility does not transform the Act’s internal
tracing provisions into a statutory command of public disclosure. The Act
expressly distinguishes between the public reporting obligation, which
applies only to contributions exceeding $5,000, and the lower-level
recordkeeping provisions, which serve tracing and enforcement functions.
See §§ 16-972(A), (D), -973(A)(6), (G). Whether records later obtained by
the Commission at its request would be subject to disclosure under
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Opinion of the Court

Arizona’s public-records law presents a separate and speculative question.
Nevertheless, Plaintiffs do not allege that such a circumstance would arise
in a substantial number of cases relative to the Act’s legitimate sweep. A
facial challenge therefore cannot be sustained by layering the Act’s
recordkeeping provisions onto a hypothetical future public-records
dispute.

¶86 We therefore proceed with whether Plaintiffs have plausibly
alleged that the Act unduly burdens or hinders protected expression in a
substantial number of its applications.

ii. The Act Does Not Unduly Burden Or Hinder Protected
Expression In A Substantial Number Of Applications

¶87 In a facial challenge, and under our Arizona-specific
framework, Plaintiffs must demonstrate that the Act imposes a concrete,
non-speculative burden on the expression at issue in all or a substantial
number of its applications. See Bonta, 594 U.S. at 615; AZ Petition Partners,
255 Ariz. at 259 ¶ 17. A challenger making a facial challenge may not rely
solely on its own circumstances. See Doe, 561 U.S. at 200 (rejecting a facial
challenge where plaintiffs’ argument “rests almost entirely on the specific
harm they say would attend disclosure of the information on the
[referendum] petition” or “similarly controversial” referendum petitions
but not all petitions).

¶88 The amended complaint and attendant declarations allege
harms only as to Plaintiffs themselves. CAP and FEC describe prior
harassment and intimidation in connection with their issue-advocacy
activities and assert that disclosure of their donors’ identities would expose
donors to similar reprisals, thereby reducing contributions.
Consequently, CAP is “considering” refraining from campaign media
spending, and FEC is “likely” to do so. The Doe Plaintiffs allege they will
limit or eliminate contributions to organizations that engage in issue
advocacy or campaign media spending to avoid perceived risks of
retaliation.

¶89 Even accepted as true, these allegations describe only how
disclosures might burden Plaintiffs. The amended complaint includes no
factual allegations about donors to other organizations, about other
charities or advocacy groups subject to the Act, about upstream

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contributors, or about whether the Act’s application to most campaign
media spending would expose contributors to harassment or intimidation.

¶90 Plaintiffs’ bare assertion that the Act “penalizes and deters
speech” by Plaintiffs “and other similar organizations [to CAP and FEC]”
is both limited and conclusory. It does not identify those other
organizations, the kind of campaign media they fund, whether they engage
in controversial expression, or whether disclosure poses any realistic risk of
reprisal to donors. Conclusory statements cannot satisfy the requirement
that a facial challenger show that a substantial amount of protected
expression is chilled by the law. See Coleman, 230 Ariz. at 356 ¶ 9; see also
Doe, 561 U.S. at 194 (stating that “[t]he label” facial invalidity “is not what
matters” and concluding that challengers’ proof must “reach beyond the[ir]
particular circumstances”).

¶91 At oral argument here, Plaintiffs argued that the Act
categorically chills speech because all compelled disclosures restrain free
expression. See Bonta, 594 U.S. at 615 (finding a categorical burden where
the defect was present “in every case”). But nothing in the amended
complaint or the declarations supports that disclosure in the vast majority
of campaign media spending in elections, many of which concern
nonpolarizing matters, creates a credible risk of harassment, intimidation,
or compelled ideological association. And the potential chilling effect for
substantially all applications of the Act is not self-evident. See AZ Petition
Partners, 255 Ariz. at 259 ¶ 19. Donors supporting campaign media
spending for ordinary ballot measures, municipal candidates, bond
elections, or budget issues, for example, are not inherently subject to
retaliation. See Doe, 561 U.S. at 200 (noting that many ballot measures
concern routine matters such as tax policy or budgeting, where disclosure
of petition signers is unlikely to result in reprisals).

¶92 The dissent responds that “Americans see politically
motivated violence as on the rise in the United States” and that many
attribute that violence to political polarization. Infra ¶ 193. It points out
that “several public officials and political figures have been the targets of
horrific acts of violence” in recent years. Infra ¶ 193. But the dissent does
not suggest that such violence or intimidation is a feature of a substantial
number of campaigns or donor disclosures falling within the Act’s
legitimate sweep, and that is the critical inquiry in a facial challenge. See
Bonta, 594 U.S. at 615. Nor could it easily do so.

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¶93 Since statehood, and continuing today, Arizona law has long
required election-related disclosures, see supra ¶ 3 n.1, and Arizona
maintains public reporting systems for campaign finance and Voters Right
to Know filings. See See the Money, Arizona Secretary of State,
seethemoney.az.gov (last visited March 21, 2026) (providing an
Arizona-specific searchable database for candidate, political party, ballot
measure, and other donations by year); Voters Right to Know Act (VRKA)
Reporting, Arizona Secretary of State, azsos.gov/elections/campaign-
finance/vrka-reporting (last visited March 21, 2026) (reporting donations
under the Act). Yet neither the dissent nor Plaintiffs suggest that a
substantial number of these disclosures within the laws’ legitimate sweep
have exposed donors to violence or intimidation so as to chill speech. On
the contrary, donors continue to make significant donations for candidates
and ballot measures alike. See id. If a reasonable probability exists in a
specific circumstance that disclosure required by the Act would subject
donors to “threats, harassment, or reprisals” so that donations, and thus
speech, would be chilled, the matter should be adjudicated in an as-applied
challenge. See Doe, 561 U.S. at 201.

¶94 The Speak Freely Clause indisputably protects unpopular,
controversial speech, and our analysis here does not, as the dissent asserts,
suggest otherwise. See infra ¶ 193. Our point is procedural: a facial
challenge requires showing that a substantial number of the Act’s
applications are unconstitutional, and the dissent’s citation to perceived
political violence—however real and troubling—does not establish that
disclosure under the Act exposes donors to harassment or retaliation in a
substantial number of its applications across the full range of elections and
ballot measures it covers.

¶95 The dissent also argues that the Act’s twenty-one-day opt-out
period “censors” speech protected by the Speak Freely Clause when
triggered in the final weeks before an election. See infra ¶¶ 174, 177. It
asserts that “when a covered person decides to use donations to engage in
campaign media spending three weeks (or less) before election day, the Act
will altogether prohibit that core political speech due to insufficient time to
provide and receive opt-out notice responses.” Infra ¶ 177. That
argument fails at the threshold and again on the merits. Most
fundamentally, although CAP and FEC correctly allege they are unable to
use donations during the opt-out period absent an opt out, they do not
allege—even considering Arizona’s notice-pleading standard—that the

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Act’s opt-out timeline will prevent them and others from speaking in the
days or weeks preceding an election. Nor is there a plausible allegation
that the scenario the dissent posits arises in a substantial number of cases
relative to the Act’s legitimate sweep, as a facial challenge requires. To the
extent it arises in a particular case, it is properly addressed through an
as-applied challenge, in which a court may enjoin enforcement of the
opt-out waiting period as applied to that covered person.

¶96 The argument is also speculative on its own terms. It
assumes that covered persons exceeding the Act’s spending thresholds,
more than $50,000 statewide or $25,000 locally, finance campaign media on
a donation-by-donation basis in the closing weeks of a campaign, rather
than from funds previously raised and held. In any event, the Act permits
a covered person to obtain a donor’s permission to use a contribution for
campaign media spending before the donation or at any time before
expiration of the twenty-one-day period. See § 16-972(C). If the donor
opts out, the funds could not have been used for campaign media anyhow;
if the donor affirmatively permits that use earlier, such as at the time of the
donation, the covered person suffers no restraint. Under either scenario,
the opt-out timeline does not operate as a restraint on speech, much less as
a form of censorship. See Doe, 561 U.S. at 196 (“[D]isclosure requirements
do not prevent anyone from speaking.” (alteration in original) (quoting
Citizens United, 558 U.S. at 366) (cleaned up)).

¶97 Because Plaintiffs have not plausibly alleged that the Act
burdens protected expression in all or a substantial number of its
applications, they have not sufficiently alleged a claim for facial invalidity
under the Speak Freely Clause. Having failed to satisfy this threshold
requirement, Plaintiffs have not triggered the State’s obligation to show that
the Act’s burdens are reasonable under the Arizona-specific standard
described above. See supra ¶¶ 55–56. Without a factual showing (or
allegation, here) of a widespread burden, there is no “undue burden” to
justify in a facial challenge. We therefore do not address the parties’
arguments regarding that issue, including whether the Act goes further
than reasonably necessary to advance the government’s interest.

D. The Definition Of “Campaign Media Spending” Does
Not Make The Act Overbroad And Facially Vague

¶98 As previously explained, see supra ¶ 19–20, a statute is fatally
overbroad under the Speak Freely Clause “if a substantial number of its

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applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” Bonta, 594 U.S. at 615 (quoting Stevens, 559 U.S. at 473).
We will void a statute as unconstitutionally vague if it fails to give sufficient
notice of what the law prohibits or “is so indefinite as to allow arbitrary and
discriminatory enforcement,” although “perfect clarity is not required even
when a law regulates protected speech.” See Brumsickle, 624 F.3d at 1019
(first quoting Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 554 (9th Cir.
2004); and then quoting Cal. Tchrs. Ass’n v. State Bd. of Educ., 271 F.3d 1141,
1150 (9th Cir. 2001)).

¶99 The Act defines “campaign media spending,” in pertinent
part, as “mean[ing] spending monies or accepting in-kind contributions to
pay for any of the following . . . [r]esearch, design, production, polling, data
analytics, mailing or social media list acquisition or any other activity
conducted in preparation for or in conjunction with” elsewhere-enumerated
types of paid “public communications.” § 16-971(2)(a)(vii) (emphasis
added). Plaintiffs contend that the italicized language makes the Act both
overbroad and unconstitutionally vague, leaving people to “guess” about
its meaning and sweeping in too many expressive acts.

¶100 Plaintiffs rely heavily on Wyoming Gun Owners v. Gray,
83 F.4th 1224, 1237–38 (10th Cir. 2023), which concerned a law requiring
organizations to disclose contributions “which relate to” electioneering
communications. The plaintiff gun rights group deposited all
contributions into one general fund and lacked any earmarking system,
prompting the court to conclude that the law was impermissibly vague as
applied to the group because it meant the state could subjectively and
arbitrarily decide which donations “relate[d] to” electioneering
communications. See id. at 1237–38, 1247.

¶101 In assessing tailoring under the federal exacting scrutiny
standard, the court also rejected the state’s suggestion that the group could
simply disclose all donors, explaining that this approach would sweep in
persons who did not support the group’s election messages. See id.
at 1247–48. Plaintiffs and the dissent argue that because the Act likewise
does not require earmarking, it is overbroad. See infra ¶ 242.

¶102 Wyoming Gun Owners is distinguishable. The phrase “relate
to,” which the court labeled “bare” and “standardless,” provided no textual
limits. See Wyo. Gun Owners, 83 F.4th at 1237–38. By contrast,
§ 16-971(2)(a)(vii) is cabined by the surrounding text. Applying the
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interpretive canon noscitur a sociis, which provides that a word or phrase
draws meaning from its surrounding terms, the phrase “any other activity
conducted in preparation for or in conjunction with” is informed by the
specifically listed activities: research, design, production, polling, data
analytics, and list acquisition. See City of Surprise v. Ariz. Corp. Comm’n,
246 Ariz. 206, 211 ¶¶ 13–14 (2019) (applying noscitur a sociis to interpret the
phrase “otherwise dispose of” by relating it to the surrounding terms “sell,
lease, assign,” and “mortgage”). Read in context, the provision reaches
only to like expenditures that form part of a discrete chain of activities
leading to campaign media. It does not extend to remote, tangential, or
generic advocacy activities. This contextual narrowing defeats Plaintiffs’
vagueness claim by ensuring that the Act operates within the bounds of the
governmental interest it serves.

¶103 Nor does the Act’s lack of an earmarking requirement render
it facially overbroad. Wyoming Gun Owners did not hold that earmarking
is constitutionally necessary. See Rio Grande Found., 154 F.4th at 1235
(Eid, J., dissenting) (acknowledging that Wyoming Gun Owners did not
“categorically require legislatures to include an earmarking provision to
survive narrow tailoring in the disclosure context”). Rather, it remarked
that earmarking “could have” been one tailoring option, while expressly
declining to mandate such a mechanism. See Wyo. Gun Owners, 83 F.4th
at 1248–49 & n.8. Courts have upheld donor-traceback laws similar to the
Act’s where donors may opt out of funding election communications. See
Gaspee Project v. Mederos, 13 F.4th 79, 89–90 (1st Cir. 2021); see also No On E,
85 F.4th at 506–11 (upholding “true source” disclosure against similar
objections). Unlike the law in Wyoming Gun Owners, the Act employs
tailoring tools: high-spending thresholds, donor thresholds, an opt‑out
mechanism, and a focus on original sources whose funds are actually and
purposefully used for campaign media. See A.R.S.
§§ 16-971(18)(a), -972(B), -973(A), (A)(6). These tools maintain the Act’s
focus on identifying persons who provide major funding for campaign
media and prevent the Act from sweeping too broadly.

¶104 In short, the challenged definitional language neither invites
arbitrary enforcement nor sweeps in a substantial amount of protected
expression relative to the Act’s plainly legitimate reach. The Act’s
structure, textual limitations, and built-in narrowing features provide
sufficient clarity and tailoring. Any remaining concerns about how the
Act operates in specific circumstances are better addressed in as-applied
challenges, not through facial invalidation.
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E. Plaintiffs Have Not Alleged A Legally Valid Facial
Challenge Under The Privacy Clause

¶105 Plaintiffs next argue that the Act is facially unconstitutional
under article 2, section 8 of the Arizona Constitution, the “Private Affairs
Clause,” which provides: “No person shall be disturbed in his private
affairs, or his home invaded, without authority of law.” They contend that
donating to an organization that uses those monies to fund campaign media
is a “private affair” the Act impermissibly disturbs.

¶106 Arizona adopted the Private Affairs Clause verbatim from
Washington’s constitution. Mixton, 250 Ariz. at 290 ¶ 29. To resolve
challenges under the Private Affairs Clause, we agree with the Washington
Supreme Court that courts should first consider whether the complained-of
action disturbed a person’s private affairs. See State v. Miles, 156 P.3d 864,
867 ¶ 11 (Wash. 2007). If not, the inquiry ends. If it does, we “ask[]
whether ‘authority of law’ justifies the intrusion.” Id.; see also Rasmussen v.
Fleming, 154 Ariz. 207, 216 (1987) (holding that the right to refuse medical
treatment, though a private affair, “is not absolute” and may yield to state
interests).

¶107 We begin by asking whether donating to an organization to
fund campaign media, or later authorizing a donation for that purpose,
qualifies as a “private affair.” Although we have most often applied the
Private Affairs Clause in the criminal-search context, we have recognized
that its protection extends beyond that setting. See Rasmussen, 154 Ariz.
at 214–15 (holding that decisions concerning medical treatment fall within
the scope of “private affairs”).

¶108 Because the Constitution does not define “private affairs,” we
look to the term’s natural meaning at the time of adoption. Mixton,
250 Ariz. at 290 ¶ 33. In Mixton, we consulted early twentieth-century
dictionaries, which defined “private” as “affecting or belonging to private
individuals, as distinct from the public generally,” or as “peculiar to one’s
self; personal; alone; secret; not public; secluded; unofficial.” Id. (first
quoting Private, Black’s Law Dictionary (2d ed. 1910); and then quoting
Private, New Websterian Dictionary (1912)). The term “affairs” was
understood to mean “a person’s concerns in trade or property; business.”
Id. at 291 ¶ 33 (quoting Affair, Black’s Law Dictionary (2d ed. 1910)).

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¶109 We recognized in Mixton, however, that “private affairs”
remains “an ambiguous concept that eludes precise demarcation,” and
explained that its meaning must be discerned from the Clause’s context,
language, subject matter, historical background, effects and consequences,
and spirit and purpose. Id. We further concluded that the Clause
protects only those privacy interests that society is prepared to recognize as
reasonable. See id. at 292–93 ¶¶ 40–41. Applying that principle, we
concluded that IP addresses and subscriber information are not “private
affairs” because users voluntarily share that information with third-party
service providers who own and routinely use it. Id. at 295 ¶ 51.

¶110 Similarly, the identities of persons who donate money or
in-kind services to fund campaign media are not “private affairs.”
Elections are matters of profound public concern, and efforts to influence
them, including by making financial contributions, have long been
regulated and treated as public, not private, acts. See Beason v. Shaw, 42 So.
611, 612 (Ala. 1906) (“The election was not a matter of private, but of public,
concern.”). As explained previously, Arizonans at statehood embraced
transparency in election-related spending as a constitutional value. See
supra ¶¶ 63–74. That understanding is incompatible with treating donors’
contributions for campaign media as private affairs shielded from
disclosure. Just as the framers did not view election-related contribution
disclosures as an infringement of the right to speak freely, they did not view
it as a disturbance of a private affair. Because donations to fund campaign
media do not fall within the scope of article 2, section 8, Plaintiffs’ facial
challenge under the Privacy Clause fails.

¶111 Finally, even assuming these donations constitute private
affairs, the Act itself may qualify as “authority of law” sufficient to justify a
disturbance of those affairs. See Ariz. Const. art. 2, § 8. The Clause does
not, as the dissent suggests, limit lawful governmental access to
circumstances requiring a warrant or subpoena. See infra ¶ 257. Instead,
it prohibits disturbance of private affairs “without authority of law.” That
language naturally encompasses duly enacted statutes, which are classic
sources of legal authority.

¶112 Importantly, however, a statute’s mere existence does not
validate its own constitutionality—otherwise the Legislature could evade
the Private Affairs Clause by simply enacting a law. Rasmussen is
instructive. There, we held that the Private Affairs Clause protects an
individual’s right to refuse medical treatment but recognized that the right
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is not absolute; it may yield where state interests are sufficient to outweigh
the privacy interest at stake. Rasmussen, 154 Ariz. at 216. Although
Rasmussen involved non-statutory state action, the principle that
disturbances require justification does not turn on the statutory or
non-statutory character of the disturbance. Cf. Miles, 156 P.3d at 867 ¶ 11.
Whether the Act would survive that justification inquiry is a question we
need not reach. Plaintiffs’ facial claim fails at the threshold because
donations to fund campaign media are not “private affairs” within the
meaning of the Clause.

F. Plaintiffs Have Sufficiently Alleged An As-Applied
Challenge

¶113 Plaintiffs argue the Act is unconstitutional as applied to them
under both the Speak Freely Clause and the Private Affairs Clause. An
as-applied challenge assumes that a law is generally constitutionally valid
and enforceable. See Smith v. Fontes, 260 Ariz. 201, 206–07 ¶ 26 (2025). To
prevail, the Plaintiffs must show that the Act has been or is likely to be
unconstitutionally applied to them. See McCullen v. Coakley, 573 U.S. 464,
485 n.4 (2014); Smith, 573 P.3d at 98-99 ¶ 26.

1. Plaintiffs Have Not Sufficiently Alleged An
As-Applied Claim Under The Private Affairs Clause

¶114 Plaintiffs argue that publicly disclosing major donors for
independent campaign media intrudes on donors’ private affairs. CAP
and FEC allege they qualify as covered persons, not as donors, and they do
not otherwise claim that the Act intrudes on their private affairs. The
as-applied challenge therefore rests on the allegations of the Doe Plaintiffs,
who must plausibly allege that the Act, as applied to them, actually disturbs
a protected private affair. See McCullen, 573 U.S. at 485 n.4; Smith, 573 P.3d
at 98–99 ¶ 26.

¶115 As previously explained, donating to organizations to fund
campaign media does not constitute a “private affair” within the meaning
of article 2, section 8. See supra ¶ 110. Nor are the Doe Plaintiffs upstream
donors unaware that their contributions may ultimately be used for
campaign media spending. On the contrary, they have historically
donated directly to organizations that would qualify as covered persons
under the Act. Per the Act, the Doe Plaintiffs would therefore receive
notice and have the opportunity to opt out of having their contributions
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used for campaign media. See A.R.S. § 16-972(B)–(C). If they instead
permit their contributions to be used for that purpose, they are engaging in
public, not private, activity. The superior court thus correctly dismissed
the Plaintiffs’ as-applied claims under the Private Affairs Clause.

2. Plaintiffs Have Sufficiently Alleged An As-Applied
Challenge Under The Speak Freely Clause

¶116 Under step one of the Arizona-specific standard, Plaintiffs
sufficiently alleged that expression is at issue. See supra ¶¶ 60–62.
Moving to step two, Defendants have shown that the Act’s disclosure
requirements meaningfully further election integrity and transparency.
See supra ¶¶ 63–74. Before considering whether Plaintiffs have sufficiently
alleged that the Act nonetheless imposes an unreasonable burden on
expression, we first ask whether they have plausibly alleged, as a threshold
matter, that the Act imposes a concrete, non-speculative burden or
hindrance on expression or compels them to convey views they do not
endorse. See supra ¶¶ 54–56.

¶117 Plaintiffs allege that the Act’s disclosure requirements burden
their expressive acts. A disclosure law may be unconstitutional as applied
against a party if the party pleads a “reasonable probability” that publicly
identifying contributors who fund election-related messaging “will subject
them to threats, harassment, or reprisals from either Government officials
or private parties.” Citizens United, 558 U.S. at 367 (citation modified). A
party may satisfy its burden by showing “specific evidence of past or
present harassment of members due to their associational ties, or of
harassment directed against the organization itself.” Buckley, 424 U.S.
at 74. “A pattern of threats or specific manifestations of public hostility”
may also be sufficient. Id. And if a party is a new entity, it may meet its
burden by offering evidence of threats, harassment, or reprisals against
individuals or organizations with similar views. Id.

¶118 At this early stage, CAP and FEC have sufficiently alleged a
concrete, non-speculative burden on protected expression. Because the
Act does not impact donations used for purposes other than campaign
media, CAP and FEC have not plausibly alleged that the Act reduces their
ability to publicly communicate messages outside that context. They do
allege, however, that the prospect of public identification under the Act will
cause major donors to fear harassment and retaliation, deterring them from
contributing sufficient money and resources needed for CAP and FEC to

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engage in campaign media related to their issue advocacy. As a result,
CAP and FEC allege that the Act “chills” their speech by forcing them to
curtail their campaign media messaging.

¶119 CAP and FEC ground these allegations in concrete facts. In
declarations submitted with the amended complaint, both organizations
describe specific instances of threats and harassment directed at them and
their staff in response to their issue advocacy. See Coleman, 230 Ariz. at 356
¶ 9 (stating that a complaint’s exhibits can be considered in deciding a Rule
12(b)(6) motion). CAP recounts receiving communications stating, for
example, “Sooner or later, you will die, and some of us pray it is sooner,”
and “You are a cancer that will soon be sliced out of our nation’s sick body.
I will make it my personal mission to bury every single one of you.” FEC
likewise reports that staff members “have received numerous phone calls
and voicemails” threatening violence because of FEC’s expressive activities,
and that a staff member’s car was vandalized in retaliation for
communicating FEC’s message. CAP and FEC also point to the Doe
Plaintiffs’ declarations, which confirm that these individuals will limit their
donations to organizations like CAP and FEC to avoid disclosure.

¶120 Taken as true at this early stage, these allegations are
minimally sufficient to make a threshold showing that the Act’s disclosure
provisions impose a concrete, non-speculative burden on CAP’s and FEC’s
expressive activities. To be sure, CAP and FEC do not identify specific
instances in which harassment was tied to funding campaign media; they
do not allege harassment directed at donors themselves; and their affiliated
political action committees have publicly disclosed donor identities
without apparent adverse consequence. But these considerations do not
defeat their claim at the pleading stage. See State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594 (1983) (stating that motions to dismiss for failing to state
a claim are disfavored and should only be granted if “it appears certain”
that the plaintiff would not be entitled to relief if it proves the pleaded
facts). Because major donors who funded campaign media were not
publicly identified before the Act’s enactment, it would be unreasonable to
require covered persons to allege past harassment that could not have
occurred. And where an organization plausibly alleges a reasonable
probability of threats or retaliation arising from its issue advocacy, which
is presumably closely related to its campaign-related speech, it is a
reasonable inference, at least for threshold purposes, that similar risks may
attend the compelled public identification of the major donors who finance
that speech. Any weaknesses in CAP’s and FEC’s allegations, including

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whether they can ultimately link a reasonable possibility of harassment or
retaliation to specific campaign media, go to the degree of burden imposed
by the Act, not whether a cognizable burden has been plausibly alleged.
See Stummer, 219 Ariz. at 145 ¶¶ 28–30.

¶121 We reach a similar conclusion regarding the Doe Plaintiffs’
as-applied claims under the Speak Freely Clause. Each alleges that,
during past election cycles, and with the expectation that their identities
would remain confidential, they donated more than $5,000 to nonprofit
organizations who publicly advocate through campaign media. Doe I
describes donations supporting campaign media on highly contentious
social issues, including abortion policy, transgender issues, same-sex
marriage, and school choice. He further avows that he is aware of
instances in which individuals and organizations supporting similar views
have been subjected to harassment, including an attempted firebombing of
a pro-life organization. Doe II does not describe the specific advocacy
engaged in by the recipient organizations or whether supporters of that
advocacy have previously been harassed. Both Doe Plaintiffs nonetheless
declare that public identification under the Act would expose them and
their employers to harassment, retaliation, or other harms, and that they
therefore intend to limit future donations.

¶122 Taken as true at this stage, these allegations are minimally
sufficient to make a threshold showing that the Act’s disclosure provisions
impose a concrete, non-speculative burden on the Doe Plaintiffs’ expressive
activities. We acknowledge that neither Plaintiff identifies the
organizations to which they have contributed or plan to contribute;
explains whether those organizations have supported or opposed, or are
likely to support or oppose, candidates or ballot measures that generate
widespread controversy; or alleges a history of harassment directed at those
organizations, their supporters, or similarly situated donors. But, as with
CAP’s and FEC’s allegations, these shortcomings go to the degree of burden
imposed by the Act, not to whether a cognizable burden has been plausibly
alleged at the pleading stage. See id.

¶123 We therefore turn to whether Defendants have demonstrated,
as a matter of law at the pleading stage, that the burden on expression is
not unreasonable so as to interfere with Plaintiffs’ right to speak “freely.”
See supra ¶ 55–56. As explained above, the reasonableness of the burden
turns on the importance of the governmental interest at stake, whether the
Act furthers that interest, and the degree to which the Act burdens or

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hinders expression. See supra ¶ 55–56. On the limited record before us,
we cannot conclude as a matter of law that the Act does not impose an
unreasonable burden on Plaintiffs’ expressive activities when those
activities involve highly contentious campaign media, and the allegations
support a reasonable probability that public disclosure of major donors
would expose them to harassment, reprisals, or other harms that would
deter future contributions. We are also mindful that the parties have not
yet had an opportunity to address the reasonableness of that burden under
our Arizona-specific framework. For these reasons, we reverse the
superior court’s dismissal of Plaintiffs’ as-applied claim under the Speak
Freely Clause and remand for further proceedings.

CONCLUSION

¶124 For the foregoing reasons, we vacate the court of appeals’
opinion, except ¶¶ 66–71 which resolve an issue on which Plaintiffs did not
seek review in this Court. We affirm the superior court’s dismissal of
Plaintiffs’ claim that the Act is facially unconstitutional under the Speak
Freely Clause and the Private Affairs Clause. We also affirm the dismissal
of Plaintiffs’ as-applied claims under the Private Affairs Clause. But we
reverse the dismissal of their as-applied claims under the Speak Freely
Clause. We therefore remand to the superior court for further proceedings
on that claim consistent with this opinion.

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

KING, J., joined by LOPEZ, V.C.J., and BOLICK, J., concurring in part and
dissenting in part:
¶125 Plaintiffs are two non-profit organizations and two
anonymous individuals who donate to organizations. The trial court
dismissed their legal challenge to the Voters’ Right to Know Act in its
entirety during a preliminary stage of the case. See Voters’ Right to Know
Act, Proposition 211 § 2 (2022) (hereinafter the “Act”). Our task today is
solely to determine whether that court erred in dismissing Plaintiffs’ facial
and as-applied constitutional challenges to the Act for “failure to state a
claim upon which relief can be granted.” Ariz. R. Civ. P. 12(b)(6).

¶126 Arizona has a “notice pleading standard, the purpose of
which is to ‘give the opponent fair notice of the nature and basis of the claim
and indicate generally the type of litigation involved.’” Cullen v.
Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6 (2008) (quoting Mackey v.
Spangler, 81 Ariz. 113, 115 (1956)). In determining if a complaint states a
claim upon which relief can be granted, courts must assume the truth of all
well-pleaded factual allegations and indulge all reasonable inferences from
those facts. Id. ¶ 7. A complaint should only be dismissed under
Rule 12(b)(6) if the “plaintiffs would not be entitled to relief under any
interpretation of the facts susceptible of proof.” Coleman v. City of Mesa,
230 Ariz. 352, 356 ¶ 8 (2012) (quoting Fid. Sec. Life Ins. Co. v. State Dep’t of
Ins., 191 Ariz. 222, 224 ¶ 4 (1998)).

¶127 The premise of the Act—transparency with respect to “all
major” donations ultimately used for campaign media spending—may at
first glance seem innocuous to the constitutional rights of Arizonans. See
Act § 2(A). But after examining the mechanics of how the Act operates
and applies to Arizonans, it is clear that Plaintiffs have stated viable claims
under the Arizona Constitution at this early stage. See Ariz. Const. art. 2,
§ 6 (“Every person may freely speak, write, and publish on all subjects,
being responsible for the abuse of that right.”) (the “Speak Freely Clause”);
id. art. 2, § 8 (“No person shall be disturbed in his private affairs . . . without
authority of law.”) (the “Private Affairs Clause”).

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CENTER FOR ARIZONA POLICY v. ARIZONA SECRETARY OF STATE
JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶128 We concur with the majority’s conclusion that Plaintiffs’
as-applied challenge under the Speak Freely Clause should not have been
dismissed. But we depart from the majority in all other respects.

¶129 The majority acknowledges that the Act’s provisions
implicate speech rights under the Speak Freely Clause, and the Clause
tolerates no censorship or restraint, major or minor, on the right to speech.
Supra ¶¶ 47, 60–62. Indeed, the Speak Freely Clause contains a single
textual limitation on every person’s affirmative right to freely speak: “being
responsible for the abuse of that right.” But the majority creates a new
limitation on free speech rights, permitting censorship and restraint on
speech in “the state’s proper exercise of its regulatory authority.” Supra
¶¶ 47–48. Most fundamentally, this police power justification departs
from clear constitutional text that limits the scope and exercise of legislative
authority infringing on the right to speak freely to “abuse of that right.”
But this police power justification is also nebulous and sweeping, invites
government suppression of speech, and is unprecedented.

¶130 The majority also permits censorship and restraint on speech
pursuant to a state constitutional directive. Supra ¶¶ 47–48. We agree
that a provision in the Arizona Constitution should be read in the context
of the whole constitution, and a partially conflicting constitutional
provision could mean the framers intended an exception to the general rule.
But we cannot rely on constitutional provisions that are wholly inapplicable
to the Act’s regulations, as the majority does here, to override the Speak
Freely Clause’s explicit speech protections. The Act mandates the
disclosure of donations to non-profit organizations that are not controlled
by, and do not coordinate with, candidates or their campaign committees.
To be clear, there is no Arizona constitutional directive that requires or
authorizes public disclosures of donations made to organizations that are
not candidates or campaign committees.

¶131 The majority’s interpretation undermines the framers’
explicitly broad speech protections. By focusing on the text of the Speak
Freely Clause, as we should, it is clear that Plaintiffs have sufficiently
alleged a substantial number of unconstitutional applications. Plaintiffs
have sufficiently alleged that the Act (1) effectuates a prior restraint on and
censors core political speech during a critical period leading up to an
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

election; (2) effectuates compelled speech and compelled association
through a flawed opt-out system; and (3) is vague and overbroad and has
a chilling effect on speech. Plaintiffs’ facial challenge under the Speak
Freely Clause should not have been dismissed under Rule 12(b)(6).

¶132 As to the Private Affairs Clause, we conclude that Plaintiffs
have sufficiently alleged at this early stage that confidential donations to
non-profit organizations are private affairs, and that the Act, both facially
and as applied to them, disturbs private affairs without authority of law.

¶133 The dismissal of Plaintiffs’ complaint at this early stage
unjustly denies them the opportunity to seek information from Defendants
and third parties through the discovery process and, with the benefit of
such information, the opportunity to litigate the substantive merits of their
claims. The complaint should not have been dismissed under
Rule 12(b)(6).

¶134 Before proceeding, we pause to note that the majority opinion
transforms Arizona jurisprudence beyond the important issues presented
here. As to the Speak Freely Clause, for the first time in Arizona history,
the majority suggests that the Clause in some instances is less protective of
free speech than its federal counterpart, and it does so in the context of
political speech, which occupies the apex of free speech guarantees. The
majority also introduces into our jurisprudence an ill-defined police power
justification for infringements on speech, wholly divorced from any abuse.
And as to the Private Affairs Clause, the majority suggests for the first time
that the Clause may be subject to limitation by the very laws it was designed
to forbid.

¶135 Our disagreement with the majority is not based on policy
grounds. Instead, our disagreement is one of constitutional magnitude
about the meaning of two constitutional provisions in Arizona’s
Declaration of Rights. What the Act compels people to do, and what it
forbids them from doing, is what makes for the profound constitutional
implications that we describe next. See Mountain States Tel. & Tel. Co. v.
Ariz. Corp. Comm’n, 160 Ariz. 350, 357 (1989) (“The framers of our
constitution did not give our judges authority to censor speech or decide

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

how much speech the constitution allows . . . . Instead, the framers gave
every person the right to ‘freely speak, write and publish’ and made judges
responsible to uphold and enforce those rights.”).

A. The Act And Its Application To Arizonans

¶136 We agree with our colleagues’ observations about the Act’s
“complexity” and its failure to make clear how certain provisions operate.
Supra ¶¶ 3, 82. The Act’s provisions are even more complicated and
sweeping than may initially appear. Thus, we begin by detailing the Act’s
key provisions, how those provisions operate and apply to the people of
Arizona, and what is (and is not) at issue in this case.

¶137 Under the Act, “covered persons” are individuals or entities
who act independently of a particular candidate or ballot measure and
spend in an election cycle, through donor or in-kind contributions, more
than $50,000 on campaign media spending in a statewide campaign or
$25,000 in other campaigns. A.R.S. § 16-971(7), (13). The public
disclosure of a covered person who engages in such campaign media
spending is not at issue in this case. See A.R.S. §§ 16-971(7), -973(A)(1).

¶138 At issue here is the Act’s requirement that covered persons
file reports with the Secretary of State that identify all persons and entities
who donated, directly or indirectly, more than $5,000 throughout an
election cycle (a two-year period) that was ultimately used by the covered
person for campaign media spending. §§ 16-971(8), -973(A)(6).
“Campaign media spending” is broadly defined, covering expenditures for
public communications that promote, support, attack, or oppose a
candidate, initiative, referendum, or recall of a public officer and “any other
activity conducted . . . in conjunction” with such public communications.
See § 16-971(2)(a)(vii).

¶139 The required disclosures to the Secretary of State must
include: (1) in the case of direct and indirect donors who are individuals,
those peoples’ names, addresses, occupations, and the identities of their
employers; and (2) in the case of direct and indirect donors that are entities,

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

the entities’ names, mailing addresses, and other information (collectively
“Detailed Personal Information”). § 16-971(10).

¶140 The Act mandates that covered persons disclose Detailed
Personal Information about donors who have directly contributed to the
covered person (“Direct Donors”). But the disclosure requirements are
not limited to immediate Direct Donors. The Act also requires covered
persons to disclose Detailed Personal Information about donors whose
funds indirectly made their way to the covered person (“Indirect Donors”).
§§ 16-971(10), -973(A)(6). The Indirect Donor scenario arises when, for
example, a person contributes funds to one organization, that organization
then contributes those funds to a second organization, the second
organization then contributes those funds to a third organization, and so on
until the funds ultimately reach a covered person who independently
decides to use the funds for campaign media spending. In that case, the
person and all organizations are Indirect Donors under the Act (except the
last donating organization, which is a Direct Donor).
§§ 16-971(10), -973(A)(6). 8

¶141 Notably, the Act’s Detailed Personal Information disclosure
requirements are in place for all upstream Indirect Donors, regardless of
how many times the funds have been donated from one organization to
another and without the Indirect Donor ever designating (i.e., earmarking)
the funds to be used for campaign media spending, much less for a
particular candidate, ballot measure, or message. In essence, the earlier
donors become automatically responsible for subsequent grantees’
completely independent use of the funds.

¶142 The Act is not limited in application to those who donate
more than $5,000. The Act also requires covered persons to retain records
of the identity of each person who directly or indirectly contributed or
transferred more than $2,500 during an election cycle that was ultimately
used for campaign media spending. A.R.S. §§ 16-971(12), (19), -972(A).

8 Such Detailed Personal Information must also be disclosed for any
person who acted as an intermediary and transferred more than $5,000
from original sources to the covered person. See §§ 16-971(10), -973(A)(7).
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

Those records must be retained for five years and provided to the Citizens
Clean Elections Commission (the “Commission”) upon request. Id. The
Act does not require the Commission to maintain the anonymity of these
lower-level contributors, nor does it exempt the list of names from
disclosure under Arizona’s public records laws. See A.R.S. § 39-121
(“Public records . . . in the custody of any officer shall be open to inspection
by any person at all times during office hours.”). Thus, the identities of
those who directly or indirectly donated merely $2,501 used by covered
persons for campaign media spending over the course of an entire election
cycle are subject to disclosure in connection with the campaign media
spending.

¶143 The Act contains an “opt-out” provision ostensibly designed
to protect donor choice. But its structural flaws thwart that purpose and
severely limit core political speech. The opt-out provision works as
follows: Before a covered person may use funds for campaign media
spending, the covered person must notify the donor that (1) the
contribution may be used “for campaign media spending,” (2) information
about the donor may have to be disclosed to the public, and (3) the donor
“can opt out of having their monies used or transferred for campaign media
spending.” § 16-972(B), (C). The donor has “twenty-one days after
receiving notice” to respond to it. Id.

¶144 During the opt-out notice’s waiting period—which is more
than twenty-one days to account for mail time—the covered person is
strictly prohibited from using the donor’s funds for campaign media
spending, unless the donor happens to provide written consent earlier.
§ 16-972(C). As designed, therefore, the opt-out provision altogether halts
core political speech for weeks at a time in the critical period leading up to
an election—when free speech is of the utmost importance. See McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995).

¶145 Moreover, while the opt-out notice identifies the possibility of
“campaign media spending” generally, it need not identify the candidate,
ballot measure, or message the donor’s funds will support or oppose in
campaign media spending. § 16-972(B). The notice, therefore, may lack
the most critical information for a donor to make an informed choice.

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶146 Further, the specific opt-out provision, § 16-972(B), does not
expressly require that covered persons provide opt-out notices to upstream
Indirect Donors, and thus does not guarantee that upstream Indirect
Donors receive opt-out notices. § 16-972(B), (C). And donors have no
statutory obligation to pass along opt-out notices to their own donors. As
the Commission observed, “[t]he plain text of the Act does not impose on a
donor who is not a covered person an obligation to provide the notice to
those who may donate to that donor.” Citizens Clean Elections
Commission Advisory Opinion, 2024-02, at 9.

¶147 The majority contends that a “better interpretation [of the Act]
is that opt-out status remains a condition of disclosure.” Supra ¶ 80. In
reaching this conclusion, the majority relies on the Act’s reference to
“traceable monies” in the disclosure reports provision (§ 16-973(A)(6)), and
the Act’s definition of “traceable monies” that refers to “monies . . . for
which no donor has opted out . . . pursuant to § 16-972” (§ 16-971(18)(a))—a
provision framed in the negative. Supra ¶¶ 80–82. But there is no
affirmative requirement in § 16-972 or elsewhere in the Act that the
upstream Indirect Donor has in fact been provided and has in fact received
the opt-out notice before the disclosure of such donor’s Detailed Personal
Information. The Act does not make an upstream Indirect Donor’s actual
receipt of an opt-out notice a condition of disclosure.

¶148 Moreover, the majority’s interpretation is problematic
because “the state must regulate in this area [of free speech] with great
precision and an even hand, alerting all to the law’s requirements and
proscriptions, and leaving little to nothing by way of subjectivity in
enforcement.” AZ Petition Partners LLC v. Thompson, 255 Ariz. 254, 257
¶ 12 (2023). The majority fails to address the Act’s vagueness problems in
this context, instead invokes a “better interpretation,” supra ¶ 80, and relies
on a case that does not address free speech issues, Ariz. Downs v. Ariz.
Horsemen’s Found., 130 Ariz. 550, 554 (1981). Even the majority recognizes
that significant questions remain and the Act is not entirely clear “about
how its notice and tracing provisions operate in all circumstances” before
donors’ identities are disclosed. Supra ¶ 82. Consequently, we cannot
discount the likelihood that upstream Indirect Donors are disclosed as
supporting or opposing a candidate, ballot measure, or message without
ever receiving an opt-out notice.
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CENTER FOR ARIZONA POLICY v. ARIZONA SECRETARY OF STATE
JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶149 We offer two hypotheticals to demonstrate the Act’s
application and impact on the people of Arizona, regardless of where they
fall along the political spectrum.

¶150 A woman donates $5,100 to her church over the course of a
year without designating her funds to be used in any way; the church then
donates those funds to a social justice organization; the social justice
organization then donates those funds to an immigrant relief organization;
the immigrant relief organization then donates those funds to an
organization that purchases campaign advertisements to advocate for a
ballot measure seeking to prohibit local law enforcement agencies from
partnering with U.S. Immigration and Customs Enforcement (“ICE”).
Under the Act, the woman will be publicly identified as supporting
“anti-ICE” campaign media spending, even if she strongly supports ICE.

¶151 At two separate fundraising events, a man donates a total of
$5,005 to a non-profit organization that supports free speech principles
without identifying his funds to be used in any way; the free speech
organization then donates those funds to an organization that advocates for
civil liberties; the civil liberties organization then donates those funds to an
organization that supports individual gun rights. The gun rights
organization then engages in campaign media spending to support a ballot
measure that seeks to expand individual gun rights under Arizona law.
Under the Act, the man will be publicly identified as supporting a “pro-gun
rights” message, even if he vehemently supports gun control and increased
government restrictions on the purchase and use of guns.

¶152 In both instances, the Act publicly identifies these individuals
as supporting ballot measures and messages with which they
fundamentally disagree. Neither person earmarked their funds to be used
in this way. They were never informed that their funds would be used to
support the “anti-ICE” and “pro-gun rights” messages and they would be
publicly identified as associated with and supportive of these ballot
measures and messages. They may have never received opt-out notices
due to the Act’s lack of clarity; but even if they did, the notices did not
identify the measures or messages. And not only are their names reported

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

as supporting ballot measures and messages they fundamentally oppose,
but their addresses, occupations, and employers are publicly reported too.

¶153 The Act allows a person’s identity to be withheld in very
limited circumstances. First, if that identity is protected by law or court
order. § 16-973(F). Second, if the donor demonstrates to the satisfaction
of the Commission a reasonable probability that public knowledge of the
donor’s identity would subject the donor or his or her family to “a serious
risk of physical harm” (i.e., harm to the body). Id. (emphasis added). The
Act offers no protection where the disclosure would subject a donor or his
or her family to a serious risk of threats, harassment, reprisals, property
damage, or other forms of non-bodily harm. See id. Nor does it provide
an expeditious timeframe to ensure the Commission renders a
determination in time to guarantee the identity of the person at risk is not
disclosed. See id.

¶154 Finally, the Act empowers both the “[Commission] and
individual voters to enforce its disclosure requirements” and imposes
“significant civil penalties” for failure to comply with its provisions. See
A.R.S. § 16-976(A); Act, § 2(D). The civil penalty can be up to three times
the amount of the undisclosed or improperly disclosed contribution.
§ 16-976(A).

B. The Common Structure Of The Constitutional Clauses

¶155 The Speak Freely Clause and Private Affairs Clause share a
common structure. These statehood constitutional provisions are framed
in the affirmative with respect to protecting the rights of people to speak
freely and not be disturbed in their private affairs. In doing so, there is a
presumption of permissibility as it relates to a person speaking, with a
single textual exception that a person may be held “responsible for the
abuse of that right.” Ariz. Const. art. 2, § 6. Additionally, there is a
presumption of allowing a person to not be disturbed in his or her private
affairs, with a single textual exception where “authority of law” permits
such disturbance. Id. art. 2, § 8.

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CENTER FOR ARIZONA POLICY v. ARIZONA SECRETARY OF STATE
JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶156 The structure of these constitutional rights is consistent with
the framers’ focus on protecting and maintaining individual rights for the
people. See id. art. 2, § 1 (“A frequent recurrence to fundamental
principles is essential to the security of individual rights and the perpetuity
of free government.”); id. art. 2, § 2 (“All political power is inherent in the
people, and governments . . . are established to protect and maintain
individual rights.”). The structure is also consistent with article 2,
section 32: “The provisions of this Constitution are mandatory, unless by
express words they are declared to be otherwise.”

C. The Speak Freely Clause

1. The Meaning Of The Speak Freely Clause

¶157 “Every person may freely speak, write, and publish on all
subjects, being responsible for the abuse of that right.” Id. art. 2, § 6. This
constitutional command “directly grant[s] every Arizonan a broad free
speech right,” Mountain States, 160 Ariz. at 354, and “indicates the Arizona
framers’ intent to rigorously protect freedom of speech,” State v. Stummer, 219 Ariz. 137, 142 ¶ 15 (2008). Indeed, this Court has repeatedly
recognized that the text of the Speak Freely Clause demonstrates that it has
“greater scope than the [F]irst [A]mendment,” which provides only a
protection against government action. See Mountain States, 160 Ariz.
at 354–55, 357 (“[W]e opt for a more literal application of [the Speak Freely
Clause] . . . . [T]he framers gave every person the right to ‘freely speak,
write and publish’ and made judges responsible to uphold and enforce
those rights.”); Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 282
¶ 46 (2019) (recognizing that “article 2, section 6 does, by its terms, provide
greater speech protection than the First Amendment”); Stummer, 219 Ariz.
at 144 ¶ 23 (declining to strictly apply federal intermediate scrutiny
standard in a Speak Freely Clause case “because it is inconsistent with the
broad protection of speech afforded by the Arizona Constitution”).

¶158 The Arizona Constitution does not define the terms “freely,”
“speak,” “responsible,” or “abuse.” “When the Arizona Constitution does
not define its terms, we look to their natural, obvious, and ordinary
meaning, and our focus is on their meaning at the time the Constitution was
adopted.” State v. Mixton, 250 Ariz. 282, 290 ¶ 33 (2021) (citation
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CENTER FOR ARIZONA POLICY v. ARIZONA SECRETARY OF STATE
JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

modified); see also Matthews v. Indus. Comm’n of Ariz., 254 Ariz. 157, 163 ¶ 29
(2022). The Speak Freely Clause contains great specificity, and to
understand the meaning of those specific terms, we examine dictionary
definitions from the time the provision was adopted in 1911. See Knight v.
Fontes, 261 Ariz. 29, 36 ¶ 20 (2025); Matthews, 254 Ariz. at 163–65 ¶¶ 33–37.

¶159 At the time the Speak Freely Clause was adopted in 1911,
“speak” was defined as “to convey sentiments, ideas, or intelligence as if by
utterance” and “to express in any way.” Speak, Webster’s International
Dictionary of the English Language (1907); see also Speak, New Websterian
Dictionary (1912) (“[T]o utter articulate sounds; said of human beings; talk;
say; utter a discourse or speech; make mention; convey ideas; tell; sound.”);
Speak, Black’s Law Dictionary (2d ed. 1910) (“In practice. To argue.”).
These definitions are consistent with the majority’s observation that “to
speak” at statehood included both (1) verbalizing ideas and sentiments, and
(2) speaking through gestures and other expressive conduct. Supra ¶ 61;
see also supra ¶ 55 (noting “the Speak Freely Clause protects expressive
activity broadly”).

¶160 At the time of statehood, “freely” meant “[i]n a free manner;
without restraint or compulsion.” Freely, Webster’s International
Dictionary of the English Language (1907); see also Free, New Websterian
Dictionary (1912) (“[W]ithout restraint; at liberty; permitted; liberal;
generous; open; free from guilt; independent.”); Free, Black’s Law
Dictionary (2d ed. 1910) (“Unconstrained; having power to follow the
dictates of his own will. Not subject to the dominion of another” and
“assuring liberty; defending individual rights against encroachment by any
person or class.”).

¶161 These definitions suggest that to “freely speak” in the Speak
Freely Clause means to verbalize or express in any way, including through
expressive conduct, one’s ideas or sentiments on any subject without
compulsion, constraint, or restraint. Textually, the only limitation is that
people may be held “responsible for the abuse of that right.” Ariz. Const.
art. 2, § 6. What does that phrase mean?

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CENTER FOR ARIZONA POLICY v. ARIZONA SECRETARY OF STATE
JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶162 The definition of “responsible” at the relevant time was
“answerable; liable.” Responsible, New Websterian Dictionary (1912); see
also Responsible, Webster’s International Dictionary of the English Language
(1907) (“[L]iable to respond; likely to be called upon to answer; accountable;
answerable.”); Responsible, Black’s Law Dictionary (2d ed. 1910) (“To say
that a person is ‘responsible’ means that he is able to pay a sum for which
he is or may become liable, or to discharge an obligation which he may be
under.”). And the definition of “abuse” was “ill-treatment; the excessive
or injudicious use of anything; insult; violation.” Abuse, New Websterian
Dictionary (1912); see also Abuse, Webster’s International Dictionary of the
English Language (1907) (“Improper treatment or use; application to a
wrong or bad purpose; misuse.”); Abuse, Black’s Law Dictionary (2d ed.
1910) (“Everything which is contrary to good order established by usage”
and “improper use.”). These definitions suggest that people may be held
accountable or liable for abuse of the right, such as by violating the rights
of others, violating laws that maintain public order and safety, engaging in
conduct giving rise to civil liability, or engaging in criminal misconduct.
See, e.g., Yetman v. English, 168 Ariz. 71, 82 (1991) (concluding defendant was
not protected from defamation claim as “[n]one of the language in [the
Speak Freely Clause] even remotely suggests an absolute privilege to
damage the reputation of another person”); Truax v. Bisbee Local, No. 380,
Cooks’ & Waiters’ Union, 19 Ariz. 379, 394 (1918) (discussing when the right
to speak is “abused to the harm of another” and noting that remedies
available include “an action for damages” and “a criminal action”); State v.
Lycett, 133 Ariz. 185, 191 (App. 1982) (concluding speech encouraging
others to join pyramid scheme was not constitutionally protected; criminal
liability may be imposed for “such inherently fraudulent conduct,” as “the
number of individuals who would lose their money under such scheme
becomes greater as the scheme is allowed to spread”).

¶163 We do not restrict our review to dictionary definitions, as the
majority contends. Supra ¶ 33. Our analysis properly recognizes that
“we seek to give terms the original public meaning understood by those
who used and approved them” and dictionary definitions from when a
provision was adopted aid in our examination of that public meaning.
Matthews, 254 Ariz. at 163 ¶¶ 29, 33. Notably, the majority does not
contest the accuracy or applicability of these definitions. Our review also
takes account of longstanding Arizona case law that is consistent with these
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

definitions, a point the majority does not dispute. Nothing in the majority
opinion demonstrates that the terms “speech,” “responsible,” or “abuse”
mean anything other than what is described above. Moreover, we review
other constitutional provisions in place when the Speak Freely Clause was
adopted. But, as discussed, those provisions are inapplicable and should
not be relied upon to expand the Speak Freely Clause’s single textual
limitation for “abuse of that right” when examining the Act’s provisions.

¶164 According to the majority, our interpretation of the Speak
Freely Clause is incorrect, as “responsible for the abuse of that right” is
directed at the speakers, not at lawmakers, and it does not tell lawmakers
what categories of expression they may regulate. Supra ¶ 43. But the
majority’s view ignores the first half of the Clause, which declares that
every person may freely speak on all subjects. The right to freely speak is
an affirmative right that can be limited only in the manner specified—for
abuse of that right. “Unlike the negative command of the U.S.
Constitution’s first amendment (‘Congress shall make no law abridging the
freedom of speech’), the guarantee of this section is stated affirmatively,
suggesting it may restrain nongovernmental as well as governmental
conduct.” John D. Leshy, The Arizona State Constitution: A Reference Guide
43 (1993). The majority’s interpretation would effectively nullify the
Speak Freely Clause’s broad speech protections at the hand of government.

¶165 Also, in Mountain States, this Court noted the Corporation
Commission has the constitutional authority to regulate public service
corporations, but it must do so within the bounds of the Speak Freely
Clause. 160 Ariz. at 353–58 (citing Ariz. Const. art. 15, § 3). Likewise, the
Legislature has the constitutional authority to enact laws, but it must do so
within the bounds of the Speak Freely Clause. See Ariz. Const. art. 4, pt. 1,
§ 1.

¶166 At bottom, the “right of every person to freely speak, write
and publish may not be limited but such a person may be held accountable
for an abuse of that right.” Phx. Newspapers, Inc. v. Superior Court, 101 Ariz.
257, 259 (1966). Thus, any source of restraint on speech—express or
otherwise—is anathema to the Speak Freely Clause.

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CENTER FOR ARIZONA POLICY v. ARIZONA SECRETARY OF STATE
JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

2. Application Of Speak Freely Clause To Plaintiffs

¶167 As discussed, to “freely speak” means to verbalize or express
in any way, including through expressive conduct, one’s ideas or
sentiments on any subject without compulsion, constraint, or restraint.
Thus, the Speak Freely Clause protects (1) public communication that
promotes, supports, attacks, or opposes a candidate, ballot measure, or
message, which is the definition of “campaign media spending,” see
§ 16-971(2); (2) spending for campaign media as a form of expressing
agreement or disagreement with a candidate, ballot measure, or message;
and (3) making a contribution as a form of agreement with, and expression
of, the recipient’s particular message, policies, or actions. We agree with
the majority that Plaintiffs have adequately alleged that speech and
expression protected by the Speak Freely Clause are at issue. Supra ¶ 62.

¶168 Further, the Speak Freely Clause does not carve out
anonymous speech from protection. The right to anonymous speech and
expression falls within the broad protections of the Speak Freely Clause, a
point the majority does not dispute. See Mobilisa, Inc. v. Doe, 217 Ariz. 103,
108 ¶ 11 (App. 2007) (citing Buckley v. Am. Const. L. Found., 525 U.S. 182,
199–200 (1999); McIntyre, 514 U.S. at 341–51, 357; Talley v. California, 362 U.S.
60, 64–65 (1960)). By way of example, at statehood, the National American
Woman Suffrage Association used anonymously donated funds for its
contribution supporting the Arizona women’s suffrage ballot measure in
1912. See Forty-Fourth Annual Report of the National American Woman
Suffrage Association, at 42 (1912). Anonymous speech has played a
valuable role in our country since its founding, and this principle remained
true when the Speak Freely Clause was adopted: “Anonymous pamphlets,
leaflets, brochures and even books have played an important role in the
progress of mankind. Persecuted groups and sects from time to time
throughout history have been able to criticize oppressive practices and laws
either anonymously or not at all.” See Talley, 362 U.S. at 64. And
although there was a statehood constitutional provision that supported
disclosure requirements for donations to candidates and campaign
committees, there was not one for the types of disclosures the Act requires.
Thus, the Speak Freely Clause protects a person’s right to donate
anonymously to organizations that are not candidates or campaign
committees.
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶169 None of Plaintiffs’ speech at issue here constitutes an “abuse
of [their] right” to “freely speak”—the sole textual limitation in the Arizona
Constitution. As discussed, donating to an organization with which one
agrees was valued at statehood and remains so today—not an abuse.
Engaging media before an election to publicly communicate about
candidates, ballot measures, or recalls of public officials is core political
speech—not an abuse. Speaking anonymously is a principle that
contributes to liberty—not an abuse. See Mixton, 250 Ariz. at 298 ¶ 69
(stating “we embrace the principle of anonymous speech and recognize its
inestimable contribution to our liberty”); see also McIntyre, 514 U.S. at 357
(“[A]nonymous pamphleteering is not a pernicious, fraudulent practice,
but an honorable tradition of advocacy and of dissent. Anonymity is a
shield from the tyranny of the majority.”). The notion that a citizen—who
anonymously donates a total of $5,001 over two years to an organization
that later uses the donation to speak through media on a matter of public
interest—is a “major donor” who represents a threat to our citizenry is
contrary to the text and history of the Arizona Constitution.

3. Plaintiffs’ Speak Freely Clause Facial Challenge

¶170 “[I]n a typical facial challenge, we require the challenger to
demonstrate that under no set of circumstances can the law be enforced in
a constitutional manner.” AZ Petition Partners, 255 Ariz. at 258 ¶ 17. But
in the context of free speech, that requirement is relaxed “because the law’s
mere existence, and the penalties for violating it, can exert a ‘chilling’ effect
on the exercise of” free speech rights. Id. ¶ 18. Indeed, the overbreadth
doctrine provides an “exception” to normal facial challenge rules because
“the threat of enforcement of an overbroad law may deter or ‘chill’
constitutionally protected speech.” Virginia v. Hicks, 539 U.S. 113, 118–19
(2003).

¶171 Thus, a plaintiff asserting a Speak Freely Clause facial
challenge need only show that a “substantial number of [the law’s]
applications are unconstitutional.” Ams. for Prosperity Found. v. Bonta, 594
U.S. 595, 615 (2021); AZ Petition Partners, 255 Ariz. at 259 ¶ 18. We agree
with the majority on this point. Supra ¶¶ 19–20. For the reasons below,
Plaintiffs have sufficiently alleged that a substantial number of the Act’s
applications are unconstitutional because many of the Act’s provisions fail
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

to regulate “with great precision and an even hand.” AZ Petition Partners,
255 Ariz. at 257 ¶ 12.

a. Prior Restraint On Speech

¶172 “The language of [the Speak Freely Clause] makes plain its
purpose to prevent previous restraints upon publication.” Phx.
Newspapers, 101 Ariz. at 259 (quoting Ex Parte McCormick, 88 S.W.2d 104,
106 (Tex. Crim. App. 1935)). The Speak Freely Clause is structured in an
anti-prior restraint way—establishing a categorical right of all persons to
“freely speak.” Even the majority recognizes the Clause was “understood
as forbidding prior restraints on expression—such as gag orders,
publication licenses, or advance censorship” and it “tolerates no censorship
or restraint—major or minor—on the right to speak, write, or publish on
any subject.” Supra ¶¶ 34, 47.

¶173 In Phoenix Newspapers, this Court held the trial court
improperly issued a “gag” order prohibiting reporters from publishing an
account of an open court pretrial hearing. 101 Ariz. at 258–59. Although
the order only delayed publication until after jury selection, this Court
viewed the matter as one of censorship: “The restraint imposed by the trial
court in this case strikes at the very foundation of freedom of the press by
subjecting it to censorship by the judiciary.” Id. In other prior restraint
cases, this Court has similarly highlighted the conflict between free speech
and government censorship. See Mountain States, 160 Ariz. at 357; Phx.
Newspapers Inc. v. Jennings, 107 Ariz. 557, 559–60 (1971); Truax, 19 Ariz.
at 393–94.

¶174 But the Act’s opt-out system restrains and censors core
political speech. When a covered person decides to engage in public
communication about a candidate, ballot measure, or recall of a public
officer in the window of time leading up to an election (when circumstances
and events are changing quickly), the covered person may not proceed with
such core political speech. See § 16-971(2). Instead, the covered person
must provide opt-out notices and then wait three weeks for responses from
donors before engaging in that core political speech. See § 16-972(B), (C).
The opt-out timeline operates as a prior restraint that prevents core political

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

speech for three weeks at a critical time before an election. 9 See Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (“Any system of prior restraints
of expression comes to this Court bearing a heavy presumption against its
constitutional validity.”).

¶175 The First Amendment and Speak Freely Clause afford the
“broadest protection” to political expression to assure the “unfettered
interchange of ideas for the bringing about of political and social changes
desired by the people.” McIntyre, 514 U.S. at 346 (quoting Roth v. United
States, 354 U.S. 476, 484 (1957)). Yet the Act effectively restrains and
censors political expression that promotes, supports, attacks, or opposes a
candidate, ballot measure, or public officer recall campaign. See
§ 16-971(2) (defining “campaign media spending”).

¶176 The debate over free speech issues like the one before us
began before the ratification of the U.S. Constitution. In Federalist No. 10,
James Madison discussed the formation of factions in our country. He
observed that one method for removing the causes of faction is “by
destroying the liberty which is essential to its existence,” but this remedy
“is worse than the disease.” The Federalist No. 10, at 130 (James Madison)
(Benjamin F. Wright ed., 1961). As Madison explained, “liberty . . . is
essential to political life.” Id. That understanding permeates our
Declaration of Rights and particularly the Speak Freely Clause. By
restraining speech, the government prevents peoples’ viewpoints from
reaching the public domain and advising on the truth or falsity of messages
and candidates who are favorable or adverse to their interests. Yet the Act
appears to do just that—serving as a prior restraint on speech in all cases
and altogether prohibiting speech in some cases.

¶177 According to the majority, covered persons can address this
issue by providing opt-out notices and obtaining donor permission “earlier,
such as at the time of the donation.” Supra ¶ 96. But this ignores the

9 A civil action by the Commission or any voter could further delay core
political speech. See A.R.S. §§ 16-974, -977 (permitting the Commission or
“[a]ny qualified voter in this state” to bring a civil action that seeks legal
and equitable relief).
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

realities of election season, when circumstances are rapidly changing by
virtue of polling, breaking news, or other factors; therefore, people often
decide to address something particular about a candidate or ballot measure
mere weeks or days before election day. Yet when a covered person
decides to use donations to engage in campaign media spending three
weeks (or less) before election day, the Act will altogether prohibit that core
political speech due to insufficient time to provide and receive opt-out
notice responses.

¶178 The majority claims Plaintiffs have not sufficiently alleged the
Act’s opt-out timeline will prevent them and others from speaking in the
time preceding an election. Supra ¶ 95. But the law does so on its face.
The majority’s specificity requirement conflicts with Arizona’s notice
pleading standard. Plaintiffs’ complaint alleges they and other covered
persons are unable to use donations during the opt-out waiting period.
Plaintiffs have placed Defendants on notice that their ability to speak is at
most suppressed, or at least restrained, during the opt-out period—either
way raising free speech concerns. Plaintiffs have sufficiently alleged and
preserved this issue. See Cullen, 218 Ariz. at 419 ¶ 6.

¶179 The majority also claims Plaintiffs have not plausibly alleged
a substantial number of incidents of prior restraint and censorship by virtue
of the opt-out waiting period. Supra ¶ 95. This criticism is without merit.
First, incidents of prior restraint and censorship due to the opt-out waiting
period must not be viewed in isolation; they must be considered along with
all other alleged unconstitutional applications under the Act, which are
discussed below. Second, our colleagues unjustly criticize Plaintiffs for
not alleging more, yet they simultaneously curtail their ability to take
discovery and present evidence.

¶180 To be clear, the Act is wholly unlike other longstanding
common disclosure laws. We are unaware of any other Arizona
disclosure law that suppresses speech for three weeks during election
season and can even altogether prohibit speech in that critical period. And
in the midst of extremely tight election timelines, those three weeks may
make an enormous difference. A non-profit organization with resources
to effectively communicate their message in advance of an election is
prohibited from using those resources to do so for three weeks. The
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

majority fails to thoroughly account for this three-week suspension of
speech. As we see it, this alone warrants reversal of the trial court’s Rule
12(b)(6) dismissal of Plaintiffs’ facial challenge. But this is only the tip of
the iceberg of the Act’s constitutional infirmities.

b. Compelled Speech And Compelled Association

¶181 Freedom of speech “includes both the right to speak freely
and the right to refrain from speaking at all.” Janus v. Am. Fed’n of State,
Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 892 (2018) (quoting Wooley v.
Maynard, 430 U.S. 705, 714 (1977)). The fundamental principle underlying
compelled speech cases “is that an individual has autonomy over his or her
speech and thus may not be forced to speak a message he or she does not
wish to say.” Brush & Nib Studio, 247 Ariz. at 283 ¶ 52 (describing
compelled speech cases where the government improperly compelled a
person to host or accommodate another’s message). Also, the “right to
eschew association for expressive purposes is likewise protected.” Janus,
585 U.S. at 892. As the majority recognizes, compelled speech is
incompatible with acting “freely,” and thus our framers necessarily
intended the Speak Freely Clause to protect against compelled expression
and compelled association. Supra ¶ 34.

¶182 NAACP v. Alabama is instructive. 357 U.S. 449 (1958). In
that case, the trial court ordered the NAACP to produce the names and
addresses of its members. Id. at 451. The U.S. Supreme Court reversed,
emphasizing “the right of the members to pursue their lawful private
interests privately and to associate freely with others.” Id. at 466. There
was no “controlling justification for the deterrent effect on the free
enjoyment of the right to associate which disclosure of membership lists is
likely to have.” Id.

¶183 Recently, in First Choice Women’s Resource Centers, Inc. v.
Davenport, a non-profit organization challenged an attorney general
subpoena commanding the non-profit to produce identifying information
about its donors. 146 S. Ct. 1114, 1119 (2026). In a unanimous opinion,
the U.S. Supreme Court highlighted that in cases demanding private donor
or member information, the Court has repeatedly “emphasized the critical
role ‘privacy in . . . associatio[n]’ plays ‘in preserving political and cultural
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

diversity and in shielding dissident expression from suppression.’” Id.
at 1123 (alterations in original) (quoting Bonta, 594 U.S. at 606–07). The
Court has “long recognized that demands for a charity’s private member or
donor information have” the effect of discouraging “people from
associating with groups engaged in protected First Amendment advocacy”
and encouraging “groups and individuals to cease or modify protected
First Amendment advocacy the government disfavors.” Id. at 1125. In
practice, such demands inevitably deter the exercise of free speech rights.
See id.

¶184 Here, the Act’s detailed disclosure requirements associate
donors with (1) certain organizations that received their funds even
indirectly; and (2) specific messages, candidates, and ballot measures.
And the disclosure is mandated (1) without the donor ever earmarking the
contribution for that purpose; (2) without the donor ever intending the
funds to be used for any form of campaign media; and (3) no matter how
many times the funds were donated from one organization to another
before a covered person decided to purchase campaign media.

¶185 According to the majority, the opt-out provision is “designed
to protect donor choice.” Supra ¶ 5. It is not. As discussed, upstream
Indirect Donors may not actually receive opt-out notices. But even if they
do, the opt-out notice simply notes use of the donor’s funds “for campaign
media spending,” without identifying the particular candidate, ballot
measure, or message the campaign media will support or oppose. See
§ 16-972(B), (C). The notice is mostly uninformative and fails to convey
the information necessary for a donor to make an informed decision about
whether to opt out. Nonetheless, the donor will ultimately be tied to the
particular cause or candidate on which money is spent even if the donor
does not know that identity in advance.

¶186 The majority contends the opt-out system is adequate because
covered persons can provide opt-out notices at any time and a donor is then
“free to ask further questions.” Supra ¶¶ 5, 96. But this argument
exposes other critical flaws in the opt-out system. A donor who receives
an opt-out notice may inquire about the candidate, ballot measure, or
message the covered person intends to support or oppose and provide
consent to use his or her funds based on the response received. But under
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

the Act, the donor’s consent covers all forms of campaign media spending.
The Act does not prevent the covered person from later using the donor’s
funds to support or oppose an entirely different candidate, ballot measure,
or message to which the donor will be publicly tied.

¶187 Also, the Act’s cumbersome and invasive mechanisms fail to
recognize that donors may reasonably fail to respond within the
twenty-one-day opt-out period—whether because the donor has moved,
has no idea what the notice means, or simply has higher priorities. If that
occurs, the covered person may use the donor’s funds for any type of
campaign media spending and the donor will be publicly tied to that
candidate, ballot measure, or message. § 16-972(B), (C).

¶188 “Courts ‘do not presume acquiescence in the loss of
fundamental rights.’” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S.
298, 312 (2012) (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Ed.
Expense Bd., 527 U.S. 666, 682 (1999)). To that end, the U.S. Supreme Court
has recognized the inefficacy of opt-out schemes in protecting First
Amendment rights. Id. at 321 (“[B]y allowing unions to collect any fees
from nonmembers and by permitting unions to use opt-out rather than opt-
in schemes when annual dues are billed, our cases have substantially
impinged upon the First Amendment rights of nonmembers.”). As
discussed, there is a significant risk that donors may not understand the
need to opt out of campaign media spending under the Act, and this cloud
of uncertainty fails to provide the great precision the Speak Freely Clause
requires. See AZ Petition Partners, 255 Ariz. at 257 ¶ 12; Rio Grande Found.
v. Oliver, 154 F.4th 1213, 1235 & n.8 (10th Cir. 2025) (Eid, J., dissenting).
When fundamental rights are at stake, the constitutional baseline is opt in
(not opt out) so the government can show a donor affirmatively chose to
associate with a specific message.

¶189 The Act’s disclosure requirements undoubtedly risk a donor’s
compelled speech and compelled association with candidates, ballot
measures, and messages with which the donor may fundamentally
disagree. And the opt-out system does not save donors from being
compelled to associate with messaging they do not support. Such
compelled expression is the antithesis of “free.” See Brush & Nib Studio,

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

247 Ariz. at 305 ¶ 166 (concluding an ordinance “unconstitutionally
compels speech in violation of the Arizona Constitution’s free speech
clause”).

c. Chilling Effect On Speech

¶190 In the speech context, especially where severe consequences
are at stake, a law must not be overbroad and it must clearly alert those
subject to its provisions about how to comply. Otherwise, the law risks a
serious chilling effect on constitutionally protected speech. See Mountain
States, 160 Ariz. at 358 (“[G]iven Arizona’s constitutional protections, when
dealing with regulations that affect speech, the [government] must regulate
with narrow specificity so as to affect as little as possible the ability of the
sender and receiver to communicate.”); Hicks, 539 U.S. at 118–19
(recognizing overbroad law may deter or chill speech); FCC v. Fox Television
Stations, Inc., 567 U.S. 239, 253–54 (2012) (recognizing vague law as chilling
speech). Plaintiffs have sufficiently alleged that several of the Act’s
provisions are vague, overbroad, and have a chilling effect on speech.

¶191 Under the Act, the identity of a donor may be withheld when
there is a reasonable probability of a serious risk of physical harm.
§ 16-973(F). But the Act offers no protection for those who can
demonstrate a serious risk of threats, harassment, reprisals, property
damage, or other forms of non-bodily harm. This is significant because
the Act requires disclosure not just of individuals’ names, but also their
addresses, occupations, and employers.

¶192 Notably, Arizona law recognizes the danger of distributing
personal identifying information or otherwise making it available as a form
of intimidation, harassment, or threatening conduct. See A.R.S.
§ 13-2916(A)(4), (E)(4) (codifying Arizona’s anti-doxing statute and
defining “[p]ersonal identifying information” as information that allows a
person to be located, contacted, or harassed and includes a home address
and employer’s address). The Act’s provisions run a reasonable risk of
disclosed persons being subjected to threats, harassment, or retaliation
(personal or professional) for mere disagreement on contentious policy
matters.

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶193 According to the majority, many elections today “concern
nonpolarizing matters.” Supra ¶ 91. Of course, that is not where the
concern about campaign spending lies. But Americans see politically
motivated violence as on the rise in the United States, and many identify
political polarization as the cause. See Joseph Copeland & Jocelyn Kiley,
Americans say politically motivated violence is increasing, and they see many
reasons why, Pew Research Center (Oct. 23, 2025),
https://www.pewresearch.org/short-reads/2025/10/23/americans-say-
politically-motivated-violence-is-increasing-and-they-see-many-reasons-
why/. Elections and issues that were once viewed as “ordinary” have
become increasingly polarized, and this applies to ballot measures and
candidates at the national, state, and local levels. And the risk of political
violence is not theoretical. In the last few years alone, several public
officials and political figures have been the targets of horrific acts of
violence. Also, in an era of “cancel culture,” the ubiquity of social media
enables those who would punish people with whom they disagree to
quickly publish and widely disseminate personal information, including
home addresses and employers, with the purpose and effect to facilitate
intimidation and damage to property and livelihood. See Citizens United
v. Fed. Election Comm’n, 558 U.S. 310, 485 (2010) (Thomas, J., concurring in
part and dissenting in part) (rejecting “a view of the First Amendment that
subjects citizens of this Nation to death threats, ruined careers, damaged or
defaced property, or pre-emptive and threatening warning letters as the
price for engaging in” core political speech). The majority’s reference to
elections that “concern nonpolarizing matters,” supra ¶ 91, is not
compelling. The Speak Freely Clause, like the First Amendment, does not
exist to protect non-controversial or popular speech.

¶194 According to the majority, Plaintiffs have insufficiently
connected acts of violence or intimidation with longstanding common
disclosure laws. Supra ¶¶ 92-93. But those longstanding common
disclosure laws vastly differ from the Act’s provisions, which have detailed
disclosure requirements for people who (1) donated to non-profits that are
not controlled by, and do not coordinate with, candidates or their campaign
committees; (2) donated without intending their funds to ever be used for
campaign media; (3) donated without knowing their funds would
eventually be transferred through several different organizations; and
(4) never received an opt-out notice specifying the message to be used in
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

the campaign media (yet they will be publicly tied to that specific message).
Also, the majority’s argument ignores the important point that, in light of
recent acts of violence, reasonable people will decide to self-censor instead
of running the risk of violence or intimidation. Moreover, the dismissal of
Plaintiffs’ facial challenge at this early stage altogether denies them the
opportunity to discover and present evidence on this issue.

¶195 Mandatory disclosure laws that fail to protect against credible
risks of “threats, harassment, or reprisals from either Government officials
or private parties” will undoubtedly chill future speech. Buckley v. Valeo, 424 U.S. 1, 74 (1976). “[I]dentification and fear of reprisal might deter
perfectly peaceful discussions of public matters of importance.” Talley,
362 U.S. at 65. In this manner, the Act has the ability to “chill or silence a
person of ordinary firmness from future [free speech] activities.”
Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999)
(quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996), vacated on
other grounds by 523 U.S. 574 (1998)); see also Buckley, 424 U.S. at 68 (“It is
undoubtedly true that public disclosure of contributions to candidates and
political parties will deter some individuals who otherwise might
contribute. In some instances, disclosure may even expose contributors to
harassment or retaliation. These are not insignificant burdens on
individual rights.”).

¶196 Next, the vagueness doctrine addresses “discrete due process
concerns: first, that regulated parties should know what is required of them
so they may act accordingly; second, precision and guidance are necessary
so that those enforcing the law do not act in an arbitrary or discriminatory
way.” FCC, 567 U.S. at 253. And “[w]hen speech is involved, rigorous
adherence to those requirements is necessary to ensure that ambiguity does
not chill protected speech.” Id. at 253–54. We just recognized this very
point in AZ Petition Partners. 255 Ariz. at 257 ¶ 12 (“[T]he state must
regulate in this area with great precision and an even hand, alerting all to
the law’s requirements and proscriptions, and leaving little to nothing by
way of subjectivity in enforcement.”).

¶197 Here, there remain significant questions about how a covered
person is supposed to undertake a search under the Act for each and every

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

upstream Indirect Donor whose funds eventually made their way to the
organization through several other organization donations. Even after
extensive briefing and oral argument, the mechanics of this process remain
unclear to us. But in the event of an error in disclosing an upstream
Indirect Donor—even an inadvertent one—the covered person is subject to
“significant civil penalties.” See § 16-976(A); Act, § 2(D). Statutory
commands must provide fair notice to the public, and this is especially true
for election-related speech provisions that impinge on free speech rights.
See Wyoming Gun Owners v. Gray, 83 F.4th 1224, 1233 (10th Cir. 2023). The
Act’s complexity will keep election lawyers employed for years to come,
but ordinary citizens (and even judges) will find its requirements difficult
to comprehend. The Act’s lack of clarity increases the risk of chilling
speech by covered persons who would otherwise purchase campaign
media.

¶198 Further, given the compelled speech and compelled
association issues previously discussed, Plaintiffs have sufficiently alleged
the Act’s mandatory disclosure requirements for Direct Donors and
upstream Indirect Donors are overbroad and impose a chilling effect on
speech and association rights. See NAACP, 357 U.S. at 466 (discussing “the
deterrent effect on the free enjoyment of the right to associate which
disclosure of membership lists is likely to have”); Hicks, 539 U.S. at 119
(“[T]he threat of enforcement of an overbroad law may deter or ‘chill’
constitutionally protected speech.”).

4. The Majority’s Interpretation Of The Speak Freely
Clause

¶199 According to the majority, censorship or restraint on speech
may be permitted “in accordance with the Constitution’s directives.”
Supra ¶¶ 47–48. We agree that a conflicting constitutional provision may
place limitations on free speech rights. But the majority improperly relies
on wholly inapplicable constitutional provisions to justify the Act’s
sweeping provisions.

¶200 Also, for the first time in Arizona history, the majority has
created a broad police power justification for intrusion on free speech rights
for “the state’s proper exercise of its regulatory authority.” Supra
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶¶ 47–48. This ignores the Speak Freely Clause’s sole textual limitation
that permits intrusion on free speech for “abuse of that right.” The
majority’s interpretation eviscerates the strong speech protections our
framers established in the Speak Freely Clause.

a. Other State Constitutional Provisions

¶201 We agree with the majority that we independently interpret
Arizona’s constitutional provisions and “[t]he Speak Freely Clause remains
an independent source of constitutional protection.” Supra ¶¶ 30, 56.
We also agree that when competing state constitutional provisions are at
issue, we should undertake a fulsome review of all relevant constitutional
provisions. Supra ¶¶ 30, 33. In that instance, we read the separate
constitutional provisions to harmonize and give effect to each. See Knight,
261 Ariz. at 39 ¶ 32. Thus, if we were to read a constitutional provision to
conflict with the Speak Freely Clause, we would seek to harmonize and
enforce both. But there are no other state constitutional provisions that
conflict with the Speak Freely Clause and support the Act’s detailed
disclosure requirements here. 10

¶202 The Act mandates the disclosure of donations to non-profits
that are not controlled by, and do not coordinate with, candidates or their
campaign committees. But the Arizona Constitution does not require or
authorize the disclosure of persons who donate to organizations that are
not candidates or campaign committees. Nor does the Arizona
Constitution require or authorize the regulation of independent,
non-abusive speech about candidates or ballot measures. The majority
relies on several constitutional provisions that do not support the Act’s
regulations.

10 On this point, we note the Act was proposed and passed as a statutory
amendment—not as a constitutional amendment. See, e.g., Ariz. Const.
art. 4, pt. 1, § 1(2) (requiring signatures by ten percent of qualified electors
for a proposed statutory amendment, and signatures by fifteen percent of
qualified electors for a proposed constitutional amendment).

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶203 Article 7, section 12 provides: “There shall be enacted
registration and other laws to secure the purity of elections and guard
against abuses of the elective franchise.” This provision directs the
Legislature to pass voter registration and other laws to secure the integrity
of voting procedures and ballots where voters choose among alternatives.
See Election, New Websterian Dictionary (1912) (“[T]he act of electing;
voluntary preference; the act of choosing a person for some office or
function by show of hands, or by ballot.”); Election, Webster’s International
Dictionary of the English Language (1907) (“The act of choosing; choice;
selection.”); Election, Black’s Law Dictionary (2d ed. 1910) (“The act of
choosing or selecting one or more from a greater number of persons, things,
courses, or rights. The choice of an alternative . . . . The selection of one
man from among several candidates.”).

¶204 The majority claims the Arizona Constitution demonstrates a
commitment to “election integrity,” citing article 7, section 12. Supra
¶¶ 53–54. But article 7, section 12 addresses procedures for voting and
ballots that secure the integrity of the election itself. It does not require or
authorize sweeping disclosure laws that are unconnected to the procedures
for conducting an election, and nothing in its text demonstrates an intent to
eviscerate the protections of the Speak Freely Clause. Also, as discussed,
donating to an organization with which one agrees, even anonymously, is
not an “abuse of the elective franchise.”

¶205 The majority also relies on article 7, section 16, which
provides: “The [L]egislature, at its first session, shall enact a law providing
for a general publicity, before and after election, of all campaign
contributions to, and expenditures of campaign committees and candidates
for public office.” Note that this “General Publicity Clause” is simply a
command to the Legislature to enact a law “at its first session” regarding
disclosures for campaign contributions to candidates and to campaign
committees, where anti-corruption and informational interests are
significant given the quid pro quo risk of a person or entity donating to a
candidate or the candidate’s campaign committee with the expectation of
receiving something in return upon election. See McIntyre, 514 U.S. at 356.
But the Act does not regulate contributions to candidates or to campaign
committees (the Act instead regulates speech about candidates). And as
the majority notes, there are already laws in place requiring disclosures in
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

the context of contributions to candidates and campaign committees.
Supra ¶ 3 n.1 (citing multiple statutes).

¶206 Also, the General Publicity Clause does not explicitly
reference initiatives or referenda, yet the Act requires disclosures for
campaign media spending on “any state or local initiative or referendum.”
§ 16-971(2)(a)(iv).

¶207 The majority broadly claims the Arizona Constitution
demonstrates a commitment to “transparency,” citing the General Publicity
Clause. Supra ¶¶ 68–69. But the Constitution’s mandate of transparency
was expressly limited. The General Publicity Clause does not require or
authorize publicity about Arizonans’ donations to non-profit organizations
that are not controlled by, and do not coordinate with, candidates or
campaign committees.

¶208 We also cannot ignore the fact that the framers rejected
Proposition 70, which would have required the Legislature to “provid[e]
for a general publicity . . . of all contributions of money . . . for the purpose of
influencing any . . . election.” See The Records of the Arizona Constitutional
Convention of 1910, at 64, 1179–80, 1385 (John S. Goff ed., 1991) (emphasis
added). The broad constitutional meaning the majority attempts to invoke
was expressly rejected by the framers, which undermines the expansive
interpretation the majority places on the General Publicity Clause.

¶209 Relatedly, the territorial disclosure law, upon which the
majority relies in its discussion of transparency, only applied to
“committees of each and every political party presenting candidates” (and
such disclosures were required “thirty days after each election”). Rev.
Stat. Ariz. Territory, Penal Code, pt. 1, tit. IV, § 66 (1901). And the
Legislature’s enactment of a disclosure law shortly after statehood only
required disclosures from candidates and campaign committees. See 1912
Ariz. Sess. Laws ch. 69, §§ 6–7 (1st Spec. Sess.). While other states may
have had statutes similar to Arizona’s around 1912, the majority fails to
point to any other state statute with the more extensive disclosure
provisions found in the Act.

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶210 The majority’s broad discussion of transparency in elections
improperly conflates donations to candidates and campaign committees
with donations to independent non-profit organizations. See, e.g., supra
¶¶ 63, 69, 74 (referring to “campaign-related contributions,” “donations in
the election context,” and “election-related contributions”). This is
contrary to Arizona’s constitutional text and history at the time of
statehood.

¶211 The majority also claims that “[b]ecause the General Publicity
Clause does not prohibit broader disclosure laws, the People were free to
enact the Act.” Supra ¶ 66. But this misses the mark. First, the Act’s
required disclosures are not a logical, natural, or historically defensible
extension of the General Publicity Clause’s disclosures. Indeed, the
framers expressly rejected Proposition 70, thus declining to embrace the
types of disclosures the Act requires. Although the majority emphasizes
that the record is silent on the framers’ reason for rejecting Proposition 70,
their rejection hardly bolsters the majority’s claim that the framers intended
the General Publicity Clause to justify precisely what they eschewed.
Second, while the General Publicity Clause does not prohibit future
legislative enactments that include other disclosure provisions, it is not
carte blanche authority to pass any law. Because the Arizona Constitution
“limits the exercise and scope of legislative authority,” any such enactments
not expressly contemplated within the General Publicity Clause (like the
Act) may not unconstitutionally infringe on Arizonans’ rights under the
Speak Freely Clause. See Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1,
5 ¶ 13 (2013). The General Publicity Clause is best viewed as a narrow
exception to the Speak Freely Clause.

¶212 The majority also relies on article 14, section 18, which
prohibits any corporation from “mak[ing] any contribution of money or
anything of value for the purpose of influencing any election or official
action.” The majority reasons that the framers, therefore, “did not
understand or intend corporate campaign contributions to be protected
expression under the Speak Freely Clause.” Supra ¶ 29. But the Act does
not regulate corporate contributions to campaigns. It instead regulates
individuals’ and organizations’ speech about candidates and ballot
measures. Article 14, section 18’s specific prohibition on corporate
contributions is not evidence of a general understanding that other types of
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

spending about election-related issues are entirely removed from the Speak
Freely Clause’s broad protection. We also note that Plaintiffs do not
challenge the public disclosure of the non-profit organizations that
purchase campaign media. In sum, article 14, section 18, which as the
majority notes likely violates the First Amendment, is inapplicable here.
Supra ¶ 29 n.3.

¶213 Further, the majority broadly pronounces that other
constitutional provisions embrace concerns about “powerful economic
interests” that support the Act’s disclosures. Supra ¶ 68. But the
majority relies on various constitutional provisions that do not address
“powerful economic interests.” Supra ¶ 68 (citing Ariz. Const. art. 2, § 21;
id. art. 4, pt. 1, § 1; id. art. 7, §§ 1, 10; id. art. 8, pt. 1, §§ 1-6). Even more, the
majority does not explain how the collective interests of individual
Arizonans, each of whom independently donates a total of $5,001 during a
two-year election cycle, constitute “powerful economic interests.”

¶214 The majority also relies on other entirely irrelevant
constitutional provisions. Supra ¶ 46 (citing Ariz. Const. art. 14, § 16 (“The
records, books, and files of all public service corporations, state banks,
building and loan associations, trust, insurance, and guaranty companies
shall be at all times liable and subject to the full visitorial and inquisitorial
powers of the state . . . .”); id. art. 2, § 19 (compelling testimony from any
person with knowledge “of facts that tend to establish the guilt of any other
person or corporation charged with bribery or illegal rebating”); id. art. 11,
§ 1 (requiring the Legislature to establish and maintain “a general and
uniform public school system”)). These provisions fail to support a broad
intrusion on free speech rights that is contrary to the plain text of the Speak
Freely Clause. The Act does not regulate (1) business records of public
service corporations, state banks, building and loan associations, or trust,
insurance, and guaranty companies; (2) testimony in a matter where a
person or corporation has been charged with bribery or illegal rebating; or
(3) the public school system.

¶215 Failing to identify any specific provision of the Constitution
that curbs the expansive protection of the Speak Freely Clause, the majority
relies on general principles it contends derive from various constitutional

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

provisions. But that constitutional text fails to support the Act’s
provisions. See Torres v. Madrid, 592 U.S. 306, 324 (2021) (embracing the
interpretative approach that courts focus on the text of the constitution,
“not some penumbral emanation”). We have not adopted the penumbral
emanation approach to constitutional interpretation in Arizona.

¶216 But even if another constitutional provision implies an
overarching general principle, such as transparency, that general principle
does not apply when, as here, the issue is directly covered by the specific
text of the Speak Freely Clause. Purported constitutional themes do not
trump express commands. See Knight, 261 Ariz. at 35–36 ¶ 17 (“[W]here
the [C]onstitution specifically addresses the particular subject at issue, we
must address that specific provision first . . . . We need not resort to the less
specific provision unless the argument based upon the more specific fails.”
(alterations in original) (quoting Roosevelt Elementary Sch. Dist. No. 66 v.
Bishop, 179 Ariz. 233, 238 (1994))); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 184 (2012) (“[T]he
general/specific canon does not mean that the existence of a contradictory
specific provision voids the general provision. Only its application to
cases covered by the specific provision is suspended; it continues to govern
all other cases.”).

¶217 The majority contends that the constitutional provisions
previously discussed “demonstrate a constitutional intent to direct the
exercise of the police power to ensure transparent and corruption-resistant
elections and reasonably encompass legislation requiring disclosure of
contributors to groups that expend significant resources to independently
support or oppose candidates or ballot measures.” Supra ¶ 65. This
broad pronouncement strikes at the heart of our constitutional
disagreement. The majority views these provisions as a carte blanche
delegation of authority to which the Speak Freely Clause provides only a
modest constraint. In contrast, we view the other constitutional
provisions by their terms as a specific, limited exception to the default rule
of the Speak Freely Clause.

¶218 The limitation in the Speak Freely Clause is not a license for
the government to compel or censor, but rather to hold a person responsible

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

for abusing the right. Restraints on political speech and contributions are
permissible only if they constitute an abuse of the right (bribery, for
example), or if they are precisely mandated or authorized elsewhere in the
Arizona Constitution, and then, only to the extent of such mandate or
authority. The default rule in all other circumstances remains the right to
speak freely.

¶219 The majority has taken the position, for the first time in this
Court’s history, that the Speak Freely Clause may be less protective than
the First Amendment. Supra ¶¶ 29–31. This view reverses an unbroken
line of cases holding that the Speak Freely Clause provides broader
protection than the First Amendment. See Mountain States, 160 Ariz.
at 354–55; Brush & Nib Studio, 247 Ariz. at 282 ¶ 46; Coleman, 230 Ariz. at 361
¶ 36 n.5; Stummer, 219 Ariz. at 142 ¶ 15. The majority’s attempt to curtail
the sweeping scope of the Speak Freely Clause to conform with inapplicable
constitutional provisions largely eviscerates Arizonans’ free speech rights.

b. The Government’s Legitimate Exercise Of Its
General Regulatory Authority

¶220 The majority contends Arizonans at statehood understood
that expression was not insulated from “the government’s legitimate
exercise of its general regulatory powers,” and that the government’s
general police powers support the Act’s regulations. Supra ¶ 36.

¶221 The majority relies on the government’s implementation of
time, place, and manner regulations at statehood to support its police
power justification for infringement on free speech rights and permit the
Act’s detailed disclosure requirements. But this reasoning is flawed for
several reasons. First, the Clause’s sole textual limitation—“abuse of that
right”—already accounts for the law of nuisance in existence at the time of
ratification of the Arizona Constitution. See Ariz. Copper Co. v. Gillespie, 12
Ariz. 190, 202 (1909) (“But when the alleged nuisance would constitute a
private wrong by injuring property or health, or creating personal
inconvenience or annoyance, for which an action might be maintained in
favor of a person injured, it is none the less actionable because the wrong is
committed in a manner and under circumstances which would render the
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

guilty party liable to indictment for a common nuisance.”). The majority
has unnecessarily created a sweeping police power authorization for
eviscerating free speech protections under the Speak Freely Clause that
vastly exceeds the time, place, and manner regulations recognized at
statehood.

¶222 Second, the majority fails to cite any Arizona case that permits
sweeping disclosure requirements under the guise of a time, place, and
manner regulation.

¶223 Third, reasonable time, place, and manner regulations, by
definition, apply to all speech, without regard to content. See Mountain
States, 160 Ariz. at 357–58 (permitting “content-neutral, reasonable time,
place, and manner regulations that tangentially affect speech”). By
contrast, the Act is entirely content-based—whether its regulations apply
depends entirely on the content of the speech.

¶224 Fourth, reasonable time, place, and manner regulations do
not censor speech. Id. But the Act operates as a prior restraint on core
political speech in all cases where a covered person decides to publicly
communicate through campaign media leading up to an election, and it
altogether prohibits such speech in certain instances.

¶225 Reasonable time, place, and manner regulations merely
operate to prevent “abuse” in the exercise of speech rights, such as
violations of traffic obstruction laws or noise ordinances. We do not
dispute the government’s authority to impose reasonable, content-neutral
time, place, and manner regulations. Indeed, this Court has already set
forth a standard for evaluating whether a time, place, and manner
regulation is reasonable and constitutionally permissible. Id. (requiring
the state to show that the time, place, and manner regulation is
content-neutral, serves a significant governmental interest, and is drawn
with narrow specificity to minimize interference with the ability of speakers
to communicate with others). But the Act and the types of reasonable
time, place, and manner regulations in effect at statehood occupy polar
ends of the analytical spectrum. See Coleman, 230 Ariz. at 360–61 ¶ 33.

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶226 The majority also relies upon a variety of territorial and
statehood-era measures to determine at this early stage that the Act is
facially constitutional. But no measure at the time of statehood authorized
(1) total effective censorship of speech for weeks in the critical time leading
up to an election; (2) disclosure requirements for contributions to
organizations that are not candidates, campaign committees, or political
party committees presenting candidates; (3) disclosures of people who did
not themselves take action to cause a public message to be made or
published about an initiative or referendum; or (4) disclosures of upstream
Indirect Donors regardless of how many times the funds were transferred
or whether the upstream Indirect Donor ever intended the funds to be used
for campaign media.

¶227 The majority points to a criminal libel provision punishing
“malicious defamation,” supra ¶ 37, but criminal libel is a classic “abuse of
that right” already prohibited under the Speak Freely Clause. Measures
prohibiting misleading or false labeling of food and beverages, akin to
fraud on consumers, also address “abuses.” See Lycett, 133 Ariz. at 191;
supra ¶ 39. And other criminal laws, such as those pertaining to obscenity
or promotion of acts that were unlawful at that time, may have been
construed as an “abuse” of the right to speak freely in 1911. Supra ¶ 37.

¶228 The majority also points to territorial and statehood-era
examples where (1) certain cities (Tucson and Phoenix) required
occupational licensing and authorized their councils to regulate or prohibit
places like dance halls, exhibitions, and public shows; and (2) general police
powers enabled the government to compel factual, nonideological
disclosures necessary to protect public health, safety, and welfare (such as
mandatory reporting about contagious diseases, marriages, births, and
deaths; displaying signs about the law; and requiring display of a license
and labeling of poisons). Supra ¶¶ 38, 40-41. First, a local government’s
territorial and statehood-era actions do not necessarily imbue them with
constitutional legitimacy. Second, the majority fails to provide any
evidence indicating the framers considered (or even knew about) these
particular Tucson and Phoenix ordinances when drafting the Arizona
Constitution. Third, the Act’s disclosures are neither “factual” nor
“nonideological.” Again, none of these types of measures are before us,
and thus the majority’s reliance on them is not compelling.
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶229 The majority also relies on a 1917 law passed by the
Legislature that prohibited anonymous communications regarding
initiatives and referenda. Supra ¶ 71; 1917 Ariz. Sess. Laws ch. 47, § 1
(Reg. Sess.). Specifically, the 1917 law required persons or organizations
to disclose their identities if they made, published, circulated, or placed (or
directly or indirectly caused to be made, published, circulated, or placed)
before the public any advertisement, argument, or statement in favor of or
against any initiated or referred measure or amendment to the Arizona
Constitution. 1917 Ariz. Sess. Laws ch. 47, § 1 (Reg. Sess.). Violations
were subject to imprisonment of up to two years and a fine of up to $500.
Id. The 1917 law, however, did not mandate the disclosure of donors who
took no action to cause a public message to be made or published about an
initiative or referendum. We therefore disagree with the majority’s
attempt to analogize the 1917 law to the Act’s provisions that are being
challenged here. 11

¶230 Moreover, the majority fails to identify a single instance of the
1917 law being enforced, and in fact, the 1917 law was later repealed.
Supra ¶ 71 n.6. This is unsurprising given its significant constitutional
infirmities. Indeed, the U.S. Supreme Court later invalidated a law
restricting the distribution of anonymous handbills, explaining: “There can
be no doubt that such an identification requirement would tend to restrict
freedom to distribute information and thereby freedom of
expression . . . . Anonymous pamphlets, leaflets, brochures and even books
have played an important role in the progress of mankind.” Talley,
362 U.S. at 60–61, 63–65. The 1917 law restricted freedom of expression by
broadly prohibiting anonymous communications about initiatives and
referenda, was later repealed, and there is no evidence of its enforcement.
This legislative enactment does not demonstrate that Arizonans at
statehood deemed the sweeping disclosure requirements found in the Act
to be consistent with the Speak Freely Clause, and it does not justify the
wholesale evisceration of anonymous speech embodied in the Act’s
disclosure requirements.

11 Again, Plaintiffs are not challenging disclosure requirements for
covered persons who purchase the campaign media.
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

¶231 The majority claims that the statehood-era disclosure
requirements “embodied a single animating principle: that the public has a
right to know who is financing efforts to influence their votes.” Supra ¶ 73.
But there was not an “animating principle” at statehood about disclosing
people who (1) simply donated to organizations whose values they shared;
and (2) were not individually undertaking their own efforts to influence
votes. The majority’s statehood-era measures fail to support an
understanding that the Act’s sweeping disclosure requirements were
constitutionally permissible.

¶232 Further, the majority cites several cases addressing the
government’s police power authority, supra ¶ 36, but none of those cases
are in the context of the Speak Freely Clause and thus are not persuasive.

¶233 We also disagree with the majority that the term “freely”
somehow incorporates conditions that include the legitimate exercise of the
state’s police power. See supra ¶ 45. The text of the Speak Freely Clause
contains no such incorporation or conditions.

¶234 Certainly, the public meaning of the Arizona Constitution at
statehood permitted the implementation of particular measures in the
exercise of the Legislature’s police powers as necessary for public health,
safety, and welfare—and that remains so today. But there is no support
for the proposition that the exercise of permissible police powers at
statehood extended to the types of provisions in the Act that are before us.
Indeed, the framers’ rejection of Proposition 70 proves the opposite.

¶235 The majority’s opinion sets forth a new Arizona-specific
framework for compelled electoral disclosure laws, like the Act: “[O]nce a
challenger shows that protected expression is at stake, the state (or a private
party defending the law) must show that the disclosure requirement
(1) meaningfully furthers election integrity or transparency; and (2) does
not unreasonably burden or hinder protected expression.” Supra ¶ 54.
This Arizona-specific framework is distinct from the several tests applied
by the U.S. Supreme Court in the First Amendment context. We agree
with the majority that we should not adopt the tiers of scrutiny applicable
in First Amendment jurisprudence, supra ¶ 26, but we contend that Arizona

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

does not need a new free speech test for the Speak Freely Clause because
we already have one. The Speak Freely Clause contains its own
limitation—“being responsible for the abuse of that right.” It is
straightforward and does not lend itself to outcome manipulation. Courts
merely determine whether words or actions were an “abuse” of the right to
speak freely when the Arizona Constitution was adopted. Defamation
was an abuse of the right at that time. So was fraud. So was bribery. So
was conspiracy. So was nuisance. But anonymous speech about political
issues was not an abuse of the right, a point the majority does not dispute.

¶236 Although the majority’s standard is indeed Arizona-specific,
it is neither moored to the Speak Freely Clause nor our jurisprudence
interpreting the Clause. Nor is it an improvement to the federal standard
applied in this circumstance. In fact, this standard appears less protective
than the exacting scrutiny standard the U.S. Supreme Court uses to review
compelled disclosure laws under the First Amendment. See Citizens
United, 558 U.S. at 366–67 (explaining that disclosure requirements are
subjected “to ‘exacting scrutiny,’ which requires a ‘substantial relation’
between the disclosure requirement and a ‘sufficiently important’
governmental interest” (quoting Buckley, 424 U.S. at 64, 66)).

¶237 The majority’s framework, which is based on inapplicable
constitutional provisions and a nebulous and sweeping “legitimate exercise
of [the government’s] general regulatory powers, including its police
power,” supra ¶ 36, is inconsistent with our repeated declaration that the
Speak Freely Clause has greater scope than the First Amendment. See
Mountain States, 160 Ariz. at 354–55; Brush & Nib Studio, 247 Ariz. at 282
¶ 46.

¶238 “[S]tate courts are absolutely free to interpret state
constitutional provisions to accord greater protection to individual rights
than do similar provisions of the United States Constitution.” Arizona v.
Evans, 514 U.S. 1, 8 (1995). When examining the Speak Freely Clause in a
context where there is no other applicable state constitutional directive, as
here, we certainly should not apply a lower level of protection than the First
Amendment provides. But the majority has done just that. Our analysis
embraces this Court’s independent interpretation of Arizona’s robust free
speech rights. Indeed, “Arizona courts have relied on [the Speak Freely
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

Clause] to define and protect the rights of Arizonans when the First
Amendment falls short.” Rebecca White Berch et al., Celebrating the
Centennial: A Century of Arizona Supreme Court Constitutional Interpretation,
44 Ariz. St. L.J. 461, 471 (2012).

¶239 The nebulous and sweeping police power justification for
intrusions on speech nullifies the sole textual limitation in the Speak Freely
Clause for “abuse of that right” and swallows the rule by authorizing
government restraint on and suppression of non-abusive speech.

c. A Rule 12(b)(6) Dismissal Is Improper

¶240 The majority claims “Defendants have shown as a matter of
law that…the Act’s disclosure requirements meaningfully further election
integrity and transparency.” Supra ¶ 78. We are not persuaded this
early-stage dismissal of the lawsuit is tenable, either under the exacting
scrutiny standard or the majority’s framework. Plaintiffs’ complaint
should not have been dismissed under Rule 12(b)(6).

¶241 The Act contains a “purpose and intent” section, which
identifies its intent “to prevent corruption” and provide more information
so voters can “mak[e] informed election decisions.” See Act, § 2 (A)–(C).
But Plaintiffs have sufficiently alleged that the Act’s provisions do not
meaningfully further those purposes, and even if they did, the state must
regulate in the area of free speech “with great precision and an even hand.”
AZ Petition Partners, 255 Ariz. at 257 ¶ 12.

¶242 The Act’s lack of an earmarking requirement—that is,
covering only those persons who designate their funds for a specific
political purpose—both amplifies the compelled speech defect and dilutes
the government’s informational and anti-corruption interests. In
Wyoming Gun Owners, the court discussed the role earmarking can play in
sufficiently tailoring a donor disclosure law, noting the Wyoming donor
disclosure law did not contain an earmarking system. 83 F.4th at 1248
(citing Indep. Inst. v. Williams, 812 F.3d 787, 797 (10th Cir. 2016) (reasoning
that a Colorado law’s requirement that organizations “need only disclose
those donors who have specifically earmarked their contributions for
electioneering purposes” helped render the statute’s scope “sufficiently
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

tailored”)). As the Wyoming Gun Owners court explained, “[i]nstituting an
earmarking system better serves the state’s informational interest; it
directly links speaker to content, whereas the Secretary’s solution dilutes
the statutory mission. The Secretary does not explain why this solution is
beyond Wyoming’s reach.” Id. The absence of such a mechanism in the
Act demonstrates a lack of narrow tailoring.

¶243 Moreover, what is the government’s interest in disclosing the
Detailed Personal Information of a person who donated to a non-profit
without any intent for his or her funds to be used for any form of campaign
media spending, much less for the particular candidate or ballot measure
that ultimately appeared in campaign media? With a lack of earmarking
and the nature of fund transfers, what is the connection to tie donors
(particularly upstream Indirect Donors) to any candidate, ballot measure,
or message? Without a sufficient link between the speaker and content,
any government informational or anti-corruption interest is significantly
diminished or altogether eliminated. It can also give rise to inherently
misleading messages about “who is speaking about a candidate [or ballot
measure] shortly before an election.” See Citizens United, 558 U.S. at 369.

¶244 Further, the Act renders the Commission the custodian of lists
of civically engaged citizens who have donated any amount over $2,500
during a two-year election cycle, making those lists ripe for release and
weaponization by political opponents. What is the government’s
informational and anti-corruption interest in a $2,501 donor (over the
course of two years) being publicly disclosed, particularly an upstream
Indirect Donor who never earmarked the funds for the particular candidate
or ballot measure that ultimately appeared in campaign media? How
does this provision prevent corruption? The majority does not answer
these questions but instead dismisses these issues as “speculative” and
claims the public records issue is not alleged to arise in a substantial number
of cases. But we do not look at each constitutional infirmity in isolation;
we must look at whether the Act’s collective constitutional infirmities arise
in a substantial number of applications or create a chilling effect on
protected speech.

¶245 In addition, the Act requires disclosure for campaign media
spending for initiatives and referenda. § 16-971(2)(a)(iv). But, unlike
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

with candidates, the government’s anti-corruption interests for initiatives
and referenda are non-existent. “In candidate elections, the Government
can identify a compelling state interest in avoiding the corruption that
might result from campaign expenditures. Disclosure of expenditures
lessens the risk that individuals will spend money to support a candidate
as a quid pro quo for special treatment after the candidate is in office.”
McIntyre, 514 U.S. at 356. But with referenda and other issue-based ballot
measures, the question is different because the “interest in avoiding the
appearance of corruption . . . has no application.” Id. at 354, 356.

¶246 Plaintiffs have sufficiently alleged at this early stage that the
Act’s requirements for covered persons to disclose information about third
parties (not a person merely disclosing their own information) do not
meaningfully further the government’s interests. But with the dismissal
of their case under Rule 12(b)(6), Plaintiffs were improperly denied the
opportunity to obtain information from Defendants and third-parties
related to whether the Act’s disclosure requirements meaningfully further
anti-corruption and informational interests. They were also denied the
ability to inquire about less restrictive alternatives, such as (1) a law
allowing disclosure of persons who earmark their funds for campaign
media in support of a particular candidate, ballot measure, or message; or
(2) specific recordkeeping requirements that would assist investigations
into violations of state or federal law, such as criminal investigations into
bribery of public officials. See, e.g., A.R.S. § 13-2602 (making bribery of a
public official, including a person who has not yet assumed office, a class 4
felony).

¶247 In sum, Plaintiffs have plausibly alleged the Act violates the
Speak Freely Clause in a substantial number of applications. Plaintiffs
have satisfied the notice pleading standard and their claim for facial
invalidity should not have been dismissed under Rule 12(b)(6). Plaintiffs
should not be faulted for not alleging more—effectively proving their
case—at this early stage. But the majority does just that.

5. As-Applied Challenge Under The Speak Freely Clause

¶248 Plaintiffs argue the Act is unconstitutional as applied to them
under the Speak Freely Clause. An as-applied challenge assumes a law is
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

generally constitutionally valid and enforceable, but to prevail, Plaintiffs
must show the law has been or is likely to be unconstitutionally applied to
them. See Smith v. Fontes, 260 Ariz. 201, 206–07 ¶ 26 (2025); McCullen v.
Coakley, 573 U.S. 464, 486 n.4 (2014).

¶249 We have interpreted and applied the Speak Freely Clause in
a manner that differs from the majority. Nonetheless, for all the reasons
outlined above, we agree Plaintiffs have sufficiently alleged that the Act, as
applied to them, violates the Speak Freely Clause. Accordingly, we agree
with the reversal of the trial court’s Rule 12(b)(6) dismissal of Plaintiffs’
as-applied Speak Freely Clause claim.

D. The Private Affairs Clause

1. Facial Challenge Under The Private Affairs Clause

¶250 “No person shall be disturbed in his private affairs, or his
home invaded, without authority of law.” Ariz. Const. art. 2, § 8.
Plaintiffs allege the Act is facially unconstitutional because it compels the
disclosure of information related to persons’ confidential charitable
donations.

¶251 The Arizona Constitution does not define the term “private
affairs.” In Mixton, this Court reviewed dictionaries at the time of
statehood to determine the ordinary meaning of “private affairs” at the time
of adoption. 250 Ariz. at 290–91 ¶ 33. Those dictionaries defined
“private” as “affecting or belonging to private individuals, as distinct from
the public generally,” or as “peculiar to one’s self; personal; alone; secret;
not public; secluded; unofficial.” Id. (quoting Black’s Law Dictionary (2d
ed. 1910) and New Websterian Dictionary (1912)). And the term “affairs”
was understood to mean “a person’s concerns in trade or property;
business.” Id. at 291 ¶ 33 (quoting Black’s Law Dictionary (2d ed. 1910)).

¶252 Notably, when interpreting the meaning of the Private Affairs
Clause in Mixton, this Court expressly recognized the value of anonymous
speech in preserving our liberty. Id. at 298 ¶¶ 68–69 (explaining “we
embrace the principle of anonymous speech and recognize its inestimable

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

contribution to our liberty”); see also Mobilisa, 217 Ariz. at 109 (recognizing
the constitutional right to speak anonymously). Relatedly, the U.S.
Supreme Court has “recognized the vital relationship between freedom to
associate and privacy in one’s associations.” NAACP, 357 U.S. at 462.

¶253 Plaintiffs have sufficiently alleged at this early stage that a
person’s donation to a non-profit organization with whom that person
agrees and supports is the type of activity that falls within the public
meaning of “private affairs” in 1911, as a personal matter that reflects one’s
financial priorities and individual values. See Mixton, 250 Ariz. at 290
¶ 33; id. ¶ 34 (addressing delegates’ discussion of “records, books and files”
in the context of the Private Affairs Clause); id. ¶ 35 (discussing
contemporaneous editorial comments made to the Arizona Republican about
the “dangers of sweeping legislative investigations involving unfettered
state access to a corporation’s business records for political or nefarious
purposes”). Although a separate organization receives the person’s
donated funds, we cannot overlook the fact that people routinely donate in
a private manner. People often wish to preserve the confidentiality of
their donations for reasons rooted in privacy—e.g., personal humility,
religious values, desire to avoid public attention, protection from other
solicitations, or avoiding personal or professional reprisals.

¶254 In Mixton, the Court concluded the defendant voluntarily
shared his IP address and subscriber information with third-party service
providers who own and routinely use such information. Id. at 295 ¶ 51.
The IP address and subscriber information were not “private affairs”
because the defendant “did not plausibly endeavor to elude identification”
and did not maintain a reasonable expectation of privacy. Id. at 293–94
¶ 44, 298 ¶¶ 68–69. But here, we are merely at the 12(b)(6) stage and there
is no evidence that donors have affirmatively and voluntarily waived their
privacy rights or failed to take efforts to maintain a reasonable expectation
of privacy. And as discussed, Plaintiffs have raised legitimate concerns
that the opt-out system fails to ensure donors can make an informed
decision about voluntarily waiving their privacy protections.

¶255 Accordingly, for purposes of this Rule 12(b)(6) motion to
dismiss, we decline to conclude in a sweeping manner that people lack a

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

reasonable expectation of privacy in their donations to charitable
organizations. See id. at 292–93 ¶ 41 (discussing whether “society is
prepared to accept such an expectation of privacy as reasonable”); see also
NAACP, 357 U.S. at 466 (recognizing “the right of the members to pursue
their lawful private interests privately and to associate freely with others”).

¶256 The majority argues that “[e]lections are matters of profound
public concern” and efforts to influence them have long been considered
public acts. Supra ¶ 110. But the Act sweeps up both Direct Donors and
upstream Indirect Donors who simply donated to a non-profit of their
choice without ever designating their funds to be used in any type of
campaign media, much less for a specific candidate or ballot measure.
Indeed, the majority does not dispute, nor could they, that many upstream
Indirect Donors never intended their donations to be used for campaign
media. All of this undermines the claim that people swept up by the Act’s
disclosure requirements are the type of people seeking to influence an
election.

¶257 The text of the Private Affairs Clause provides only one
limitation. A person’s private affairs may be disturbed where there is
“authority of law.” But Defendants have not identified any “lawful
authority,” such as a search warrant or other compulsory process associated
with a particular law enforcement investigation, that would authorize the
government to obtain the donation information here. Indeed, in this
regard the Speak Freely Clause and the Private Affairs Clause fit neatly
together: an “abuse” of the right to speak freely would presumably give rise
to “authority of law” to arrest the abuse. Again, merely donating to a
non-profit that one agrees with and supports—a hallmark of healthy civic
engagement—is the antithesis of the requisite unlawful activity our courts
have required to justify governmental intrusion into one’s private affairs.

¶258 The majority contends “without authority of law” recognizes
that the right to private affairs “may yield where state interests are
sufficient to outweigh the privacy interest at stake,” and “the Act itself may
qualify as ‘authority of law’ sufficient to justify a disturbance of those
affairs.” Supra ¶¶ 111–12. Ultimately, the majority never reaches the
issue of whether Plaintiffs have sufficiently alleged “authority of law,” but
we do not understand how the Clause could be subject to limitation by the
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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

very laws it was designed to forbid. And what will be a “sufficient”
enough state interest to outweigh a person’s privacy interests?
Regardless, Plaintiffs have adequately alleged at this early stage that state
interests are insufficient to justify the intrusion into their private affairs, and
they should be permitted to take discovery on the issue.

¶259 “[I]n a typical facial challenge, we require the challenger to
demonstrate that under no set of circumstances can the law be enforced in
a constitutional manner.” AZ Petition Partners, 255 Ariz. at 258 ¶ 17.
Although this is a difficult standard to meet, this case currently stands at
the 12(b)(6) motion to dismiss stage. For the reasons discussed, Plaintiffs
have not “failed to state a claim upon which relief can be granted.” See
Ariz. R. Civ. P. 12(b)(6). They have met the notice pleading standard and
should be allowed the opportunity to prove the substantive merits of their
claim in the context of a motion for summary judgment or at trial.

2. As-Applied Challenge Under The Private Affairs
Clause

¶260 Plaintiffs also claim the Act is unconstitutional as applied to
them under the Private Affairs Clause. In this as-applied challenge,
Plaintiffs must show the law has been or is likely to be unconstitutionally
applied to them. See Smith, 260 Ariz. at 206–07 ¶ 26; McCullen, 573 U.S.
at 486 n.4. According to the complaint, the individual Plaintiffs donate to
charitable organizations in a confidential manner because they wish to
maintain their anonymity in their charitable giving. They do so because
they are fearful of the risks of harassment, retaliation, and other harms to
themselves and their families and employers if they are publicly identified
in connection with their charitable donations.

¶261 For the same reasons discussed above, the individual
Plaintiffs have sufficiently alleged: (1) their confidential donations to
non-profit organizations constitute “private affairs” that they have
attempted to maintain as private; (2) they have not affirmatively and
voluntarily waived their privacy protections; and (3) they have a reasonable
expectation of privacy in such information. They have also sufficiently
alleged a lack of “authority of law” for the government to obtain this

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JUSTICE KING, joined by VICE CHIEF JUSTICE LOPEZ and
JUSTICE BOLICK, Concurring in Part and Dissenting in Part

information. Accordingly, the as-applied Private Affairs Clause claim was
erroneously dismissed for failure to state a viable claim under Rule 12(b)(6).

CONCLUSION

¶262 We agree with the majority that Plaintiffs’ Speak Freely
Clause as-applied claim should not have been dismissed for failure to state
a claim. But Plaintiffs’ other claims under the Speak Freely and Private
Affairs Clauses also should not have been dismissed. By dismissing their
claims at this preliminary stage, Plaintiffs were unjustly denied the
opportunity to engage in discovery and litigate the substantive merits of
their claims. With great respect for our colleagues, we dissent.

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