A little over a year after RNLA wrote about the 9th Circuit’s decision in Americans for Prosperity Foundation v. Becerra, the Supreme Court granted certiorari to determine whether private non-profit organizations could be compelled to disclose their major donors under the First Amendment’s freedom of association.
While the 9th Circuit Court of Appeals upheld the practice enforced by former California Attorney General and current Vice-President Kamala Harris and President Bidens’ DHHS nominee, current California Attorney General Xavier Becerra, the Biden-Harris Administration isn’t so sold.
A quick recap of the case: California’s Attorney General requires all private non-profits to disclose their major donors, which in itself violates of the Supreme Court’s holding in NAACP v. Alabama ex rel. Patterson that groups have a First Amendment right to protect the names of their members and supporters.
But as irony would have it, two California Attorney Generals – Harris and Becerra – not only continued the unconstitutional practice but failed miserably to keep this information private, resulting in a whopping 1,778 instances of inadvertent disclosures of donor data. After being threatened for not disclosing their major donors, AFPF sued to protect its donors' privacy under the First Amendment's freedom of association.
California’s disclosure requirements have a vast array of groups up in arms, including numerous groups on the Left that rely on the privacy of their donors.
And despite some who would like to pretend that associational privacy is some right wing cause, the facts continue to disagree. Supporting 1st A rights this week in AFPF v Becerra: ACLU, NAACP, PETA, HRC, SPLC, & many more. The 1st A needn't be partisan. https://t.co/E7Hatn5ZVQ— Casey Mattox (@CaseyMattox_) March 4, 2021
The ACLU joined with the NAACP Legal Defense and Educational Fund, the Human Rights Campaign, and other groups to submit a brief to the Supreme Court condemning the forced disclosure of donors:
“The disclosure law at issue here, at least as it has been implemented by California, risks undermining the freedom to associate for expressive purposes. That freedom, in turn, is fundamental to our democracy ad has long been protected by the First and Fourteenth Amendments. A critical corollary of the freedom to associate is the right to maintain the confidentiality of one’s associations, absent a strong governmental interest in disclosure.”
But perhaps best of all, the Biden-Harris Administration’s brief asks the Supreme Court to reject the 9th Circuit’s ruling and reprimands then-Attorney General Harris’ and current Attorney General Becerra’s handling of sensitive donor information:
"[W]here [Harris’s and Becerra’s] history of not maintaining [donor] information as securely as it should have raises a serious concern…the overall deterrent effect on the exercise of First Amendment rights should be assessed as a function of both variables: the probability of public disclosure and the severity of the harms such disclosure could produce."
By the Biden-Harris Administration's own standard, Harris and Becerra blatantly violated the First Amendment. The brief then exposes Harris’ coercive methods as Attorney General of requiring disclosure:
"Charitable organizations that fail to comply are not merely denied a subsidy but also barred from operating and fundraising in the State…When petitioners did not comply with the requirement, [Harris] informed them not only that they might lose their state tax exemptions but also that they could be barred from operating or soliciting contributions in California."
What’s at stake? According to Becerra, apparently nothing. In his brief, Becerra refused to acknowledge that forced disclosure and failed security could result in any “public harassment or other negative consequences.” But what really is at stake is freedom of association and donors’ ability to give to causes they care about without the fear of being harassed. In an age of cancel-culture, this is all too real of a reality.