An amicus curiae brief filed by Protect The 1st warns the Supreme Court of the physical, monetary and reputational dangers to individuals and the exercise of free speech if the court upholds a requirement by the Attorney General of California to disclose the identities and addresses of donors to nonprofit organizations.
This disclosure demand, enforced by Attorney General Xavier Becerra (now President Biden’s nominee to head the Department of Health and Human Services) against the Thomas More Law Center, a Catholic organization, and Americans for Prosperity, a libertarian nonprofit, is based on a purported need to prevent fraud in charities.
The attorney general pledges to keep this information in confidence. Yet in 2009, his office inadvertently mislabeled contributions made by individuals, releasing them on the internet. In one instance, California released the confidential information of hundreds of donors to Planned Parenthood.
“California has a checkered history of playing fast and loose with highly sensitive donor information,” said Gene Schaerr, general counsel of Protect the 1st. “Its carelessness has already exposed countless donors to abuse by state actors and by private individuals who may disagree with the donors’ view.”
In its brief before the U.S. Supreme Court, Protect The 1st, joined by the Pacific Research Institute, notes the increasing sharp and violent divide between ideological extremes in the United States. The brief asks the court to apply the same logic to this case that it applied to NAACP v. Alabama (1958), which recognized that the release of donor identities would have subjected the NAACP’s donors and members to violent abuse.
In NAACP, the court reasoned that the “indispensable liberties” of “speech, press, or association,” make it crucial that possible infringement be closely scrutinized even when the infringement is unintended. Thus, the court held that any legislation that “would have the practical effect ‘of discouraging’ the exercise of constitutionally protected political rights” is a matter of great concern under the First Amendment.
In the case now before the Supreme Court, a district court judge in California had ruled in favor of the nonprofit groups. The San Francisco-based 9th U.S. Circuit Court of Appeals in 2018 reversed that decision, prompting the current appeal to the Supreme Court.
Protect The 1st’s brief cites many recent examples in which supporters and donors on all political sides have been “doxed,” or had their addresses, social media accounts and phone numbers listed for online and physical mobs to punish them.
“The instances of targeted violence, organized by social media and online technologies, is growing,” Schaerr said. “Given that one judge has said that ‘California’s computerized registry of charitable corporations was shown to be an open door for hackers,’ upholding the California rule would be tantamount to storing gunpowder in a cigar store.”