October 11, 2018

PLF supports en banc rehearing of Ninth Circuit ruling in compelled disclosure law challenge

By Mollie Williams Legal Fellow

We filed an amicus brief in the Ninth Circuit supporting en banc rehearing in the case of Americans for Prosperity Foundation v. Becerra. We argue that the panel’s decision to uphold California’s donor disclosure law invites donor harassment, undermines free speech, and harms nonprofits nationwide. We urge the court to reconsider this case because of these important issues.

Last month, the Ninth Circuit held that California’s demand that nonprofits hand over their confidential donor information does not violate the First Amendment. According to the panel, the government’s general investigatory interest in donor information outweighed substantial evidence established in the district court that the disclosure created a risk of donor harassment.

We argued in our amicus that by accepting the government’s interest at face value despite the donor harassment evidence, the panel’s decision strays from important First Amendment precedent and undermines Americans’ constitutional right to freely associate. To put it simply, the panel’s watered-down review of this First Amendment challenge not only flies in the face of Supreme Court precedent upholding the freedom to associate confidentially, but also makes this right vulnerable to government infringement.

Rehearing this case is also important because the donor disclosure requirement harms nonprofits nationwide. California’s size and wealth mean that the disclosure requirement has great reach. Nonprofits will be discouraged from soliciting in California to avoid handing over the confidential information of their donors. Nonprofits play an important role in society by providing individuals with platforms to express their political, philosophical, or philanthropic beliefs. Without donor confidentiality and anonymity, donors will retreat and will in turn jeopardize the operation of nonprofits.

Finally, it is important to remember that the panel’s decision undermines the rights of all Americans whether on the left or on the right or somewhere in between. Although at this moment conservative groups feel most threatened by California’s disclosure law, history reminds us that those in power changes often and quickly. Thus, it is in the interest of every American to preserve the constitutional right to speak freely. Let’s hope the Ninth Circuit rehears this case and reaffirms that the First Amendment protects the right of all individuals to donate confidentially.

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