September 11, 2018

Ninth Circuit remains hostile to free association for conservative groups

By Jeremy Talcott Attorney

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).

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Americans for Prosperity Foundation v. Becerra

The California Attorney General – first Kamala Harris, now Xavier Becerra – demanded that Americans for Prosperity, a nonprofit 501(c)(3) organization of a politically conservative bent, submit an unredacted IRS Form 990 Schedule B that contains the names and addresses of all donors who give $5,000 or more in a year. The group refused because such disclosure threatens the donors’ First Amendment right of association. After a trial, the court agreed with the group and enjoined the Attorney General from collecting the unredacted form. The Attorney General appealed and PLF filed an amicus brief supporting the rights of donors to remain free to associate without risk of intimidation based on their philanthropy.

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