The Case of the Eloquent Amici: ACLU, NAACP, Human Rights Campaign, PEN, Knight First Amendment Institute Oppose California Donor Disclosure Requirement

We recently reported on the ideological breadth and quality of the coalition of civil liberties organizations filing amicus briefs on behalf of the Americans for Prosperity Foundation and the Thomas More Law Center in a donor privacy case before the U.S. Supreme Court. These petitioners ask the Court to lift the burdensome donor reporting requirements of the California Attorney General’s office, which would easily reveal the identities of nonprofit donors, chilling speech and subjecting these donors to harassment.
 
Now five additional highly respected organizations have stepped forward to file a joint amicus in Americans for Prosperity v. Becerra. They include:
 

• The American Civil Liberties Union and its Foundation, which has a long history of participating in cases concerning associational privacy.
  

• The NAACP, which won the foundational NAACP v. Alabama case in 1958 that saved the organizations’ supporters from harassment and worse under Jim Crow.
  

• The Knight First Amendment Institute at Columbia University that is “committed to protecting against the compelled disclosure of personal expressive or associational information that would chill core political activity.”
  

• The Human Rights Campaign, the largest national lesbian, gay, bisexual, and transgender advocacy organization.

• The PEN American Center, Inc., a nonprofit that represents and advocates for the freedom to write and freedom of expression, both in the United States and abroad. Members includes more than 7,500 journalists, novelists, poets, essayists, and other professionals.

• While these five organizations support campaign finance disclosures of various political expenditures, they nonetheless recognize the dangers in expanding routine disclosure requirements to all nonprofits regardless of such campaign-related activities. Their filing describes what the overbroad California requirement puts at risk and how much is at stake for speech of all sorts.

Here are some of the most relevant excerpts:

Speech Chilled by Threat of Government Reprisal and Personal Retaliation
 
“The disclosure law at issue here, at least as it has been implemented by California, risks undermining the freedom to associate for expressive purposes. That freedom, in turn, is fundamental to our democracy, and has long been protected by the First and Fourteenth Amendments. A critical corollary of the freedom to associate is the right to maintain the confidentiality of one’s associations, absent a strong governmental interest in disclosure. If the State could categorically demand disclosure of associational information, the ability of citizens to organize to defend values out of favor with the majority would be seriously diminished. As this Court recognized in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), the compelled disclosure of an expressive association’s members or supporters threatens to chill free association, because people may refrain from exercising those freedoms rather than expose themselves to government reprisal or private retaliation.”
 
California’s Disturbing Record
 
“California’s blanket demand for nonprofit organizations’ IRS Form 990 Schedule B documents, which include the names and addresses of major donors, is not designed to facilitate public disclosure; indeed, California is ostensibly committed by law to maintaining the confidentiality of nonprofits’ Schedule B forms. But in light of California’s record of inadvertently publicizing these sensitive documents, its demand should be treated as a de facto public-disclosure requirement, triggering a more stringent form of exacting scrutiny. The record in this case discloses a disturbing pattern of failures to keep the forms confidential. California’s assurances that previous mistakes will not be repeated is unlikely to persuade donors that their information, once handed over to the State, will remain confidential. The resulting chill to First Amendment interests harms donors, nonprofit organizations, and civil society writ large.
 
“The breaches of confidentiality here were massive … ‘[b]y altering the single digit at the end of the URL’ corresponding to each file on the Registry website, Petitioner’s expert witness ‘was able to access, one at a time, all 350,000 of the Registry’s confidential documents.’” 
 
No Legitimate Reason for Requirement
 
“California argues that it needs blanket, pre-investigation access to nonprofit organizations’ Schedule B forms in order to ‘polic[e] charitable fraud and self-dealing’ … The District Court did not find this interest especially compelling. Noting that California had not identified ‘even a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General’s investigative, regulatory or enforcement efforts,’ it found that California’s disclosure requirement ‘demonstrably played no role in advancing the Attorney General’s law enforcement goals for the past ten years.’”

In sum, these five respected organizations argue in one eloquent voice that California has no legitimate reason to request donor names and addresses, has a proven track record of disclosing this nonpublic information, and that the result likely has been to chill speech and discourage participatory democracy.