The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim Sackton (CC-By-SA 2.0)

In a 6 to 3 decision, the Supreme Court upheld the privacy rights of donors to charitable organizations finding that the California Attorney General’s requirement that charitable organizations disclose their donors to his office unconstitutional. The Attorney General of California’s office required charitable organizations to file their IRS Form 990 with all its schedules with his office. IRS Form 990 Scheduled B requires disclosing the names and addresses of donors who give more than $5000 to an organization.

This ruling is a win for donors’ privacy and association rights for any charitable organization regardless of its ideological perspective. In deep-blue California, these were conservative organizations that brought suit. This decision could prevent similar laws and regulations in red states that could negatively impact progressive organizations.

Unfortunately, we have far too many examples of donors toward “unpopular” causes being unduly targeted, threatened, and even fired. A public’s supposed “right to know” does not trump the privacy and associational rights of donors.

Americans for Prosperity Foundation (AFPF) and the Thomas More Law Center (Thomas More) either refused to provide that document or provided a redacted copy. However, that requirement was not enforced until 2010. As a result, both organizations received deficiency letters, and the Attorney General’s office threatened to suspend their registrations as a charitable organization in California and fine their directors and officers. That resulted in both organizations filing a lawsuit in the Central District of California.

Chief Justice John Roberts wrote the court’s opinion except for Part II– B–1. That opinion was joined in full by Justices Brett Kavanaugh and Amy Coney Barrett. Justices Samuel Alito and Neil Gorsuch joined that opinion except for Part II-B-1. Alito wrote a concurring opinion that Gorsuch joined. Justice Clarence Thomas also joined except for Parts II-B-1 and III-B. He wrote an opinion concurring in part and concurring in the judgment. Justice Sonia Sotomayor wrote a dissenting opinion and was joined by Justices Stephen Breyer and Elena Kagan. 

The Supreme Court concluded that California’s disclosure requirement burdened the First Amendment rights of AFPF and Thomas More donors and was not narrowly tailored. 

The majority opinion cited court precedent, such as NAACP v. Alabama, protecting the associational rights of donors. 

Roberts, in his opinion, acknowledged that the state has a compelling interest in preventing fraud, but the Attorney General’s office went too far.

“There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end,” he wrote.

“California’s interest is less in investigating fraud and more in ease of administration,” Roberts added. 

“We have no trouble concluding here that the Attorney General’s disclosure requirement is overbroad. The lack of tailoring to the State’s investigative goals is categorical—present in every case—as is the weak- ness of the State’s interest in administrative convenience. Every demand that might chill association therefore fails exacting scrutiny,” he wrote. 

Roberts pointed out that the petitioners provided evidence of the harassment of organization staff and supporters. 

“The disclosure requirement ‘creates an unnecessary risk of chilling’ in violation of the First Amendment […] indiscriminately sweeping up the information of every major donor with reason to remain anonymous. The petitioners here, for example, introduced evidence that they and their supporters have been subjected to bomb threats, protests, stalking, and physical violence. […] Such risks are heightened in the 21st century and seem to grow with each passing year, as ‘anyone with access to a computer [can] compile a wealth of information about’ anyone else, including such sensitive details as a person’s home address or the school attended by his children,” he wrote.

Roberts then pointed out that numerous organizations from across the ideological perspective underscored the “gravity of the privacy concerns in this context.”

“We are left to conclude that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important,” he wrote in conclusion. 

Read the majority opinion, concurring opinions, and dissenting opinion below:


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