Americans for Prosperity Foundation v. Rodriguez asks the Supreme Court whether California can require charitable non-profits to disclose their donors before operating in California.
Protect The 1st and The Pacific Research Institute recently filed an amicus brief in this case. There, we demonstrated that the same right of confidentiality that the Supreme Court recognized in NAACP v. Alabama (1958) should apply to donors of all groups, equally.
Eight organizations have since filed amicus briefs supporting California’s regulation. Most of them are a variation on a theme: When it comes to the exposure and harassment of donors, there’s nothing to see here, folks, so move along now.
A group of legal historians, for example, filed a brief arguing that the record here “does not contain the overwhelming evidence mustered in the civil rights-era cases that providing list of members would likely lead to public disclosures and to real physical harm.” Another brief from a coalition of U.S. senators argues that “[t]here is simply no comparison between the violent oppression faced by individual members of groups supporting racial justice in the South in the Jim Crow 1950s and the lofty power enjoyed by the country’s secretive donor elite today.”
Briefs filed by other groups attempted to undermine the risks to privacy by arguing that, even though there were some lapses in confidentiality, they have been resolved. To them, the risk of harm is, at best, “speculative.”
These groups miss the point, and are wrong in any event. Examples from California itself show that the fears would-be donors have about donating are not speculative, but are instead logical responses to real harms. In 2009, for example, the California attorney general’s office mislabeled contributions and released them on the internet, including the confidential information of hundreds of donors to Planned Parenthood.
“California data security is demonstrably weak and hackable,” says Gene Schaerr, general counsel of Protect The 1st. “But even if donor identification is never revealed, a chilling effect still occurs when this information is available to powerful and ambitious politicians. Just the knowledge that a donor’s name may be misused – publicly exposed in a hack, or privately in a disclosure to a politician or regulator – would be enough to stifle speech.”
He continued, “These briefs are right to assert that there is no comparison between a donor to the NAACP in the Jim Crow era and a donor today. But one doesn’t have to face the worst possible threat to be intimidated. There has been no shortage of recent examples of people being threatened in our era of ‘cancel culture’ and ‘doxing.’”
Schaerr cites a list of recent “doxing” incidents in which the combination of a donor’s name and address, when combined with location devices and data from social media, led to harassment of donors, from abortion providers, to opponents of same sex marriage, to members of Black Lives Matter.
“Donors don’t have to face the same level of intimidation as the members of the NAACP to be scared away from exercising their core First Amendment rights,” Schaerr said. “With all of the risks that come with donor disclosure, there is ample reason to apply NAACP’s rule in this context, and thereby protect the First Amendment freedoms of association and speech from burdensome disclosure requirements.”