On Thursday, the U.S. Supreme Court struck down California’s law mandating that nonprofits turn over their lists of donors to the state. Back in 2015, then-Attorney General Kamala Harris (D-Calif.) demanded that two conservative nonprofits, Americans for Prosperity (AFP) and the Thomas More Law Center (TMLC), hand over their donor lists. This demand threatened to reveal the identities of donors, potentially subjecting them to threats and harassment.
By a 6-3 majority in Americans for Prosperity v. Bonta (2021), the Court struck down the donor disclosure requirement, ruling that the disclosure mandate violated the Free Association Clause of the First Amendment. The Court declared the law “facially invalid” because it “burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest.”
Chief Justice John Roberts delivered the opinion of the Court, although he did not join one part of the opinion. Justices Brett Kavanaugh and Amy Coney Barrett joined the opinion in full, while Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas joined most of the opinion. Alito and Thomas filed separate concurring opinions, and Gorsuch joined Alito’s opinion. Justice Sonia Sotomayor led her fellow Democrat-appointed justices in dissenting.
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The Court’s conservatives disagreed on the standard by which to judge California’s donor disclosure requirement. While most of the conservatives argued for the “exacting scrutiny” standard, Thomas favored “strict scrutiny.” Yet all of them agreed that California’s law violated the Constitution.
While California claimed the Kamala Harris donor disclosure mandate is necessary for fraud investigations, the Court noted that California has never used the schedule B information for investigations.
“The pertinent facts in these cases are the same across the board: Schedule Bs are not used to initiate investigations. That is true in every case. California has not considered alternatives to indiscriminate up-front disclosure. That is true in every case,” Roberts wrote in the majority opinion.
“In reality, then, California’s interest is less in investigating fraud and more in ease of administration. This interest, however, cannot justify the disclosure requirement,” he argued. “Our cases have said that disclosure requirements can chill association ‘[e]ven if there [is] no disclosure to the general public.'”
The justices cited the key legal precedent NAACP v. Alabama (1958), in which the Supreme Court struck down Alabama’s order that the NAACP hand over a list of its members. Alabama issued this order during the era of segregation when the Ku Klux Klan held tremendous power in the state. The Court rightly upheld the NAACP’s organizational privacy.
California’s Department of Justice also leaked sensitive donor lists from Planned Parenthood, exposing the confidential information of hundreds of donors.
“Narrow tailoring is crucial where First Amendment activity is chilled—even if indirectly—'[b]ecause First Amendment freedoms need breathing space to survive…,'” and California “falls far short of satisfying the means-end fit” that the Constitution requires, Roberts wrote.
“When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals,” Roberts ruled. “The risk of a chilling effect on association is enough, because First Amendment freedoms need breathing space to survive.”
Yet Sotomayor argued that the AFP case has nothing to do with the NAACP case. She mocked the Court’s opinion, ironically stating that “the same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support.”
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While Sotomayor acknowledged that “there is no question that petitioners have shown that their donors reasonably fear reprisals if their identities are publicly exposed,” she argued that those reprisals are unlikely and that the mandated Schedule B donor forms play an important role in “the investigation of charitable malfeasance.”
She claimed that AFP and TMLC had not demonstrated “an actual First Amendment burden” in the case.
Yet when Kamala Harris demanded AFP’s donor list, AFP staffers and donors testified about the threats and intimidation they had received before any forced disclosure.
“Our chief operating officer, my boss, Chris Fink, … testified about the threats to him and his family members. They’re just horrible, and I’ll just relate one typical thing that we showed in that courtroom,” Victor Benson, vice president and general counsel at AFP, explained back in 2016. “It was a video game produced by the Left, and the concept of the game is an active shooter goes into AFP headquarters, and you get points for killing AFP personnel.”
Meanwhile, the scandal-plagued Southern Poverty Law Center (SPLC) branded TMLC a “hate group,” placing it on a “hate map” with the Ku Klux Klan. This “hate map” inspired a terrorist attack in 2012.
Kamala Harris left the attorney general’s office in 2017 to join the U.S. Senate, but her successor, Xavier Becerra, continued to demand donor lists from TMLC and AFP.
The opposition of Sotomayor, Kagan, and Breyer seems particularly remarkable given the fact that many left-wing organizations filed amicus briefs in support of AFP and TMLC. The American Civil Liberties Union (ACLU), the Council on American-Islamic Relations (CAIR), the scandal-plagued Southern Poverty Law Center (SPLC), the NAACP Legal Defense Fund, the Human Rights Campaign, and more joined to defend free speech against Kamala Harris’ overreach.
Richard Thompson, TMLC’s president and chief counsel, hailed the ruling as a “landmark victory for the First Amendment.”
“The Supreme Court has confirmed that every American is free to peacefully support causes they believe in without fear of harassment or intimidation,” John Bursch, senior counsel at Alliance Defending Freedom (ADF), the firm that represented TMLC in the case, said in a statement. “Public advocacy is for everyone, not just those able to weather abuse.”
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“Forced donor disclosure is a threat to everyone and discourages both charitable giving and participation in the marketplace of ideas. The court correctly upheld the First Amendment’s promise of the freedom to associate with like-minded groups, which includes the right to donor privacy,” Bursch added.
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