[EL] Question about AFP v. Bonta and "exacting scrutiny"

[Kogan, Vladimir]

A question I'm hoping the folks here can help me with: My understanding is that one of the criticisms of the majority opinion in Americans for Prosperity v. Bonta (2021) is that it changes the definition of "exacting scrutiny" to require narrow tailoring even in the absence of evidence that there are any real First Amendment burdens as a result of the required disclosures. The dissenting opinion really hammers on this point, and I know Rick Hasen has written on this before as well.

I'm curious how that criticism can be squared with McIntyre v. Ohio Elections Commission (1995). As far as I understand, poor old Mrs. McIntyre did not present any evidence that she faced a risk of physical harm or boycotts. The only burden was the disclosure itself - being forced to add her name to her handbill when she didn't feel like doing so. Yet Justice Stevens' majority opinion seemed to apply the same definition of "exacting scrutiny" as the AFP v. Bonta majority, including the requirement for narrow tailoring: "When a law burdens core political speech, we  apply 'exacting scrutiny,' and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest."

Am I missing something important in the criticism of the AFP v. Bonta opinion?

Thanks in advance!

Vlad Kogan

[The Ohio State University]
Vladimir Kogan, Associate Professor and Director of Undergraduate Studies
Department of Political Science
2004 Derby Hall | 154 N. Oval Mall, Columbus, OH 43210-1373
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