Daily Journal: The High Court upholds nonprofit donors’ constitutional right to privacy

July 16, 2021 | By JEREMY TALCOTT

To anyone considering donating to a nonprofit organization (and I know a few good ones!), I have some great news: The U.S. Supreme Court has upheld your constitutional right to privacy of association. On July 1, in a 6-3 opinion in Americans for Prosperity Foundation v. Bonta, 2021 DJDAR 6702, the Supreme Court struck down California’s attempt to demand disclosure of the names of certain donors from every single nonprofit that solicited funds within the state. While the case was brought by a pair of conservative organizations, Americans for Prosperity Foundation and Thomas More Law Center, the opinion is a victory for individuals and organizations across the ideological spectrum.

As Chief Justice John Roberts noted in his majority opinion, the petitioners received amicus support from hundreds of diverse organizations, representing “the full range of human endeavors: from the American Civil Liberties Union to the Proposition 8 Legal Defense Fund; from the Council on American-Islamic Relations to the Zionist Organization of America; from Feeding America — Eastern Wisconsin to PBS Reno.” Fortunately for donors of these organizations — and any of the other 60,000 organizations that renew their registrations in California each year — donor identities will remain protected. The chief justice’s opinion struck down the requirement facially as an unconstitutional burden on First Amendment freedoms.

First, the opinion recognized the severe “chilling effect” that disclosure laws can have on the freedom of association. Because disclosure of a donor’s identity can potentially subject her to social or economic reprisals — or even violence — there is a “vital relationship between freedom to associate and privacy in one’s associations.” Without such privacy, many individuals may choose not to associate. This also indirectly harms protected First Amendment speech and expression, which is “undeniably enhanced by group association.”

The Supreme Court also recognized that disclosure to the government alone constitutes a First Amendment injury. Though disclosure to the public at large might increase the potential for harassment of individuals, the relevant inquiry was instead whether the disclosure “may have the effect of curtailing the freedom to associate.” Nor was it relevant if some donors did not mind — or even preferred — disclosure to the government. Instead, the question was whether disclosure raised “an unnecessary risk of chilling” protected association. And the court recognized that each disclosure to the government constitutes a separate injury. Even though California was seeking copies of a form already disclosed to the IRS, its burden was not lessened to show an independent basis for demanding the information and to narrowly tailor to that need.

However, the opinions left ambiguous one important question: Just what is the proper test for the lower courts to apply when reviewing disclosure laws? Unfortunately, the court fractured on this point. Chief Justice Roberts held that exacting scrutiny was the appropriate standard, requiring that such laws were “narrowly tailored” to a “sufficiently important government interest” — but only managed to get two other votes on the point. Justice Thomas, in his concurrence, wrote that he would have required that the law pass strict scrutiny by being the least restrictive means of meeting a compelling interest.

Justice Samuel Alito, joined by Justice Neil Gorsuch, would have waited to resolve the question of which scrutiny applied since the law at issue was unconstitutional under either. Alito also seemed to express some doubts as to whether the same standard should apply for all disclosure requirements, leaving room for future clarification by the court.

The six justices all agreed as to some narrow tailoring requirement, however, which the California disclosure requirement failed. The chief justice likened California’s requirement to a “dragnet” that would obtain the sensitive information of tens of thousands of individuals annually, while the information would only be relevant to a small handful of cases each year. Given how little California relied on the information, the blanket disclosure requirement was not “in proportion to the interest served.”

The three dissenters — Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan — would have applied a less rigorous version of Exacting Scrutiny, requiring only a “substantial relation” to a “sufficiently important government interest,” without requiring narrow tailoring. Further, the dissenters would have only extended such constitutional protections to claimants that could show a serious “risk of retaliation.”

The best way to ensure that constitutional protections are available to those who often need them most — individuals with unpopular ideas or minority viewpoints, for example — is to guarantee those protections to all. In one of the final opinions of this term, the Supreme Court did just that. If you’re so inclined, you can even take advantage of this constitutional right yourself — just find a worthy organization and donate. Thanks to Americans for Prosperity v. Bonta, no one (and especially not the state of California) has to know.

This op-ed was originally published by Daily Journal on July 16, 2021.