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In late June, a divided Arizona Supreme Court issued a major free speech ruling, upholding a proposal to create stronger election disclosure requirements aimed at curbing dark money. The Arizona High Court interpreted the state constitution’s provision that everyone is “free to speak,” creating a state-specific framework for free speech challenges. In doing so, it broke away from the US Supreme Court’s analysis. Citizens United v. Federal Election Commissionconcluded that corporate campaign contributions are not a form of expression protected by the state constitution. It’s worth reading for both the majority and the opposition.
There is a problem with Arizona Policy Center vs. Arizona Secretary of State The law was the Voter Right to Know Act, passed as Proposition 211 by more than 70 percent of Arizona voters in 2022. Among other things, the law requires political nonprofits and other groups that spend large amounts of money in elections to disclose their donors, including tracing the original source of their donations. Organizations must also notify donors that their donations may be used for campaign spending and give them an opportunity to opt out.
Two organizations and two individuals challenged the law based on the Arizona Constitution’s right to free speech and the state’s right to privacy. Plaintiffs did not file a federal complaint, likely because the U.S. Supreme Court has consistently approved election disclosure laws. But they argued that state constitutions required more rigorous scrutiny than the U.S. Constitution.
In a 4-3 decision, the Arizona High Court upheld the Freedom of Information Act, but also departed from the U.S. Supreme Court’s framework for evaluating free speech claims.
The court criticized the First Amendment’s reliance on a graduated review, arguing that it “sorts cases into rigid categories and applies a one-size-fits-all test without regard to their actual expressive burden.” Instead, the court adopted an Arizona-specific framework to assess whether the challenged conduct involved protected expression and, if so, whether it would prevent people from freely participating in that expression.
The court focused specifically on history, concluding that the state constitution guarantees the right to free speech that Arizonans enjoyed prior to statehood in 1912. At the time, the court emphasized that free speech was understood to coexist with reasonable regulation based on the state’s so-called police powers, empowered to ensure the health, safety, and general welfare of the population.
In applying this framework to forced disclosure laws, the court established a new two-part test, concluding that the Voter Right-to-Know Act is constitutional because it meaningfully promotes election integrity and transparency and does not unduly burden or impede protected expression.
In its analysis, the court emphasized that election disclosure requirements are “deeply rooted in Arizona’s history.” At the same time, Progressive-era disclosure standards that were in place when Arizona joined the United States outside This is the limit of what the state can regulate today. Rather, the majority said, this history “embodies a living principle: that citizens have a right to know who is funding efforts to influence their votes, a principle that has not been fossilized by the application of the national era.”
The majority and dissenters disagreed on a number of points, including whether the Arizona test was weaker or simply different from the federal standard that requires “rigorous scrutiny” under the Freedom of Information Act. Opponents argued, among other things, that the majority’s police powers to justify restricting speech are “vague and broad” and open to government repression. The majority, on the other hand, argued that its approach “makes analytical procedures stronger and more transparent than the federal standard, ensuring that burdens on free expression receive the explicit consideration that the Free Speech Clause requires.”
The majority opinion also contained several notable orders. The court held that corporate campaign contributions are not a form of protected expression under the Arizona Constitution, putting the Free Speech Clause in direct conflict with the Supreme Court’s First Amendment analysis. citizens united. The Arizona high court pointed to another state constitutional provision that prohibits corporations from making donations “for the purpose of influencing elections or public acts.” The only way to reconcile this provision with Arizona’s free speech clause, the court argued, was to conclude that corporate campaign contributions were not a form of protected expression.
As a practical matter, citizens united Still, the violation of state law takes precedence. But the court’s analysis is an example of how state-level rights can operate very differently than federal-level rights. And, of course, just as today’s dissenting opinion can become tomorrow’s majority opinion, so too can state constitutional rulings become the basis for the evolution of federal law.
The fight over the Voter Right to Know Act is far from over. The Arizona Supreme Court upheld the law on a face challenge, but allowed the plaintiffs to proceed with their argument that the law would be unconstitutional and would chill speech if applied to them. To win, you must prove specific and serious harm. Other ongoing state lawsuits also challenge other provisions of the law.
But as other states consider similar disclosure regimes, Arizona Policy Center It is almost certainly a seminal decision, suggesting a different way for state courts to evaluate free speech rights.
Alicia Bannon is the editor-in-chief state court report. She is also the director of justice programs at the Brennan Center for Justice.
Recommended quote: Alicia Bannon Arizona charts a new path for the right to speak freelySᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 17, 2026), https://statecourtreport.org/our-work/analysis-opinion/arizona-charts-new-path-right-speak-freely
