In the coming months, the United States Supreme Court will grant or deny certiorari in Americans for Prosperity Foundation v. Becerra, a case from the Ninth Circuit that has gathered an impressive amount of attention due to its First Amendment implications and threat to donor privacy.
Since 2010, California’s Attorney General has required nonprofit organizations renewing charitable fundraising registration in the state to annually provide a list of the names and addresses of its donors who give more than $5,000. This de facto law endangers not only the identities of the prominent donors many nonprofit organizations rely on but also the ability of these donors to contribute anonymously in the future to freely support issues they deeply care about.
After being threatened by the California Attorney General that noncompliance would result in denial of registration, loss of tax-exempt status, and the issuance of potential penalties and fines against the organization’s officers, Americans for Prosperity Foundation brought suit to challenge the practice. While the District Court ruled in favor of Americans for Prosperity Foundation, the Ninth Circuit upheld California’s requirement and along with it jeopardized a half-century of Supreme Court precedent concerning donor privacy.
In NAACP v. Alabama ex rel. Patterson, the Supreme Court established that state-compelled disclosure of a nonprofit’s membership list is unconstitutional absent a compelling governmental interest. But Buckley v. Valeo held that campaign finance contributions are the exception to this rule due to the compelling government interest in preserving the integrity of the electoral process. The standard created by the Court in NAACP v. Alabama is one that California’s requirement fails to meet, and donor privacy may pay the price if the Ninth Circuit’s decision stands.
The consequences of California’s requirement are obvious: the disclosure of an individual’s identity to government creates a substantial First Amendment injury because it will always chill lawful, constitutionally protected speech and association, as the Pacific Legal Foundation explains it its amicus brief. Thousands of nonprofit organizations rely on the donations from those whose identities are at risk due to the California requirement. Additionally, these donors often depend on their gifts remaining anonymous, for if their identities were revealed to the public, they would face the very real possibility of being harassed, threatened, and intimidated because of their association.
The Buckeye Institute explains the consequences of the Ninth Circuit’s ruling in its amicus brief in support of granting certiorari:
Under the Ninth Circuit’s holding, the tens of thousands of charities and exempt organizations that fundraise from any of California’s nearly 40 million residents will have to choose between continuing those efforts and disclosing their significant donors. This ruling undeniably makes donating to these organizations less attractive, chilling the organizations’ and their donors’ First Amendment freedom to associate.
The Institute for Justice furthers this argument in its amicus brief in support of granting certiorari:
If allowed to stand [and certiorari be denied], the decision below will stifle protected activity and chill people throughout the Ninth Circuit from associating, depriving both themselves and society of the benefits of expressive association.
But beyond the Ninth Circuit, this decision presents the potential of chilling speech throughout the country, threatening the very foundations of the First Amendment the Supreme Court has upheld for decades.
As the Institute for Free Speech advocates:
Certiorari should be granted so that this Court may return its campaign finance precedents to their proper context and restore the general rule that the compelled disclosure of donors to nonprofit organizations can rarely be squared with the First Amendment.