Ninth Circuit remains hostile to free association for conservative groups

September 11, 2018 | By JEREMY TALCOTT
first amendment

This morning the Ninth Circuit released this opinion in Americans for Prosperity Foundation v. Becerra, a case about whether California can demand confidential donor forms from nonprofit organizations operating within the state.

Twice the district court has found that the law violates  donors’ First Amendment rights of free speech and association, and twice the Ninth Circuit has overturned those opinions. Today’s opinion ignored the clear evidence that California had little legitimate use for the donor form, which it had never used as an investigatory tool. The panel also ignored evidence of the public harassment that conservative donors have faced in recent years, particularly those of the American for Prosperity Foundation. According to the panel, there was little risk of harassment since the documents were supposed to remain confidential once given to the government agency. Of course, the district court had correctly noted that California had failed for years to keep any of the documents confidential, accidentally releasing thousands of donor lists over the web.

We filed this amicus brief arguing that disclosure to government is itself a significant First Amendment injury. We also pointed out that forced disclosure of donor lists in California could harm nonprofit groups nationwide, because California citizens collectively donate more than any other state. Nonprofit organizations will be forced the unappealing choice of forgoing seeking donations in California or having their list of most significant donors (from any state) handed over to the State of California.

The decision is perhaps not surprising in the Ninth Circuit, since the groups that felt most threatened in California by the disclosure requirement were conservative nonprofits. But people on all sides would do well to remember that there is never a guarantee that the “right” people will be in power, and information (once disclosed) can never be hidden from future bad actors in government. Social pressures change, and today’s majority opinion may be tomorrow’s fringe belief subject to retaliation. After all, the seminal case on donor privacy involved the NAACP, which sought to keep its member lists private from hostile government officials in Alabama.

While at any given time a disclosure requirement might only create a risk of harassment for a few groups, that is always subject to change, and a First Amendment right to donate privately protects everyone, now and in the future. We hope that this case is headed to the Supreme Court, which has consistently enforced free speech principles in recent terms (see, e.g., PLF’s victory last term in MVA v. Mansky).