Arizona Charts New Path for the Right to Speak Freely

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A divided Arizona Supreme Court issued a major free speech ruling at the end of June, upholding a proposition that established strong election disclosure requirements meant to curb dark money. Interpreting a state constitutional provision that every person may “freely speak, ” the Arizona high court laid out a state-specific framework for free speech challenges. In doing so, it also parted ways with the U.S. Supreme Court’s analysis in Citizens United v. Federal Election Commission, concluding that corporate campaign contributions are not a form of protected expression under the state constitution. The majority and dissent are both well worth a read.

At issue in Center for Arizona Policy v. Arizona Secretary of State was the Voters’ 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 substantial sums on elections to disclose their donors, including tracing donations back to their original sources. Groups must also inform donors that their contributions could be used for campaign spending and give them an opportunity to opt out. 

Two organizations and two individuals challenged the law under the Arizona Constitution’s right to speak freely, as well as the state’s right to privacy. The plaintiffs didn’t raise any federal claims — likely because the U.S. Supreme Court has consistently approved of election disclosure laws. But they argued that the state constitution requires a more stringent review than the U.S. Constitution. 

In a 4–3 decision, the Arizona high court upheld the disclosure law but also departed from the U.S. Supreme Court’s framework for evaluating free speech claims. 

The court critiqued federal First Amendment law’s reliance on tiers of scrutiny, which it argued “sort[s] cases into rigid categories and then appl[ies] a one-size-fits-all test regardless of the actual burden on expression.” Instead, the court adopted an Arizona-specific framework, which evaluates whether the challenged act concerns protected expression, and if so, whether it prevents people from freely engaging in that expression. 

The court focused particularly on history, concluding that the state constitution guarantees those free speech rights that Arizonans enjoyed before adopting their constitution prior to statehood in 1912. The court emphasized that free speech was understood at that time to coexist with reasonable regulations under the state’s so-called police powers, which empower it to secure residents’ health, safety, and the general welfare.

In applying this framework to compelled disclosure laws, the court set forth a new two-part test, concluding that the Voters’ Right to Know Act is constitutional because it meaningfully furthers election integrity or transparency and doesn’t unreasonably burden or hinder protected expression. 

In its analysis, the court highlighted that election disclosure requirements are “deeply rooted in Arizona’s history.” At the same time, the Progressive Era disclosure standards in place at the time Arizona joined the United States also didn’t set the outer bounds of what the state could regulate today. Rather, the majority said, this history “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 majority and dissent disagreed on much, including whether this Arizona test is weaker than the federal standard — which requires “exacting scrutiny” of disclosure laws — or just different. The dissent argued, among other things, that the majority’s police powers justification for limits on speech is “nebulous and sweeping” and invites government suppression. For its part, the majority argued that its approach “makes the analytical sequence stronger and more transparent” than the federal standard “and assures that the burden on free expression receives the explicit attention the Speak Freely Clause demands.”

The majority opinion also contained some notable dicta. The court observed that corporate campaign contributions are not a form of protected expression under the Arizona Constitution — putting the Speak Freely Clause directly at odds with the U.S. Supreme Court’s First Amendment analysis in Citizens United. The Arizona high court pointed to another state constitutional provision barring corporations from making contributions “for the purpose of influencing any election or official action.” The only way to harmonize this provision with Arizona’s Speak Freely Clause, the court argued, is to conclude that corporate campaign contributions are not a form of protected expression. 

As a practical matter, Citizens United still trumps contrary state law. But the court’s analysis is an example of how state-level rights can function very differently than their federal counterparts. And of course, just as today’s dissents can be tomorrow’s majority opinions, state constitutional rulings can also be a building block for the evolution of federal law. 

The fight over the Voters’ Right to Know Act isn’t over: Although the Arizona Supreme Court upheld the law against a facial challenge, it also allowed the plaintiffs to move forward with a claim that the law, as applied to them, unconstitutionally chilled their speech. To win, they will need to prove concrete, serious harm. Other ongoing state litigation challenges other provisions of the law. 

But as other states consider similar disclosure regimes, Center for Arizona Policy is almost certain to be an influential ruling, suggesting a different way for state courts to assess free speech rights.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Alicia Bannon, Arizona Charts New Path for the Right to Speak Freely, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 17, 2026), https://statecourtreport.org/our-work/analysis-opinion/arizona-charts-new-path-right-speak-freely