Frequently Searched

A Potential Supreme Court Showdown over Donor Privacy

April 2, 2019

April 2, 2019
by Matt Miller

The First Amendment associational rights of nonprofit donors could be headed back to the Supreme Court soon.

On Friday, the Ninth Circuit declined to grant en banc review of a three-judge panel’s decision in Americans for Prosperity Foundation (AFP) v. Becerra. The case is about whether the government can demand the donor lists of 501(c)(3) nonprofit groups. Specifically, the California Attorney General sought the Foundation’s “990 Schedule B” form, which is a confidential form that nonprofits submit to the federal government listing their top donors. The plaintiff objected to giving the form to California, alleging that inadvertent—or malicious—disclosure of the information would lead to harassment and intimidation of the group’s donors, and claiming a First Amendment right to keep the information private.

Following a bench trial, the trial court correctly ruled that the plaintiffs had shown that their donors are likely to be subjected to harassment and intimidation if their names are made public, holding that “in light of these threats, protests, boycotts, reprisals, and harassment directed at those individuals publicly associated with AFP, the Court finds that AFP supporters have been subjected to abuses that warrant relief[.] … [T]his Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

The Ninth Circuit panel, however, reversed the trial court’s decision. According to the panel, it was sufficient that the Attorney General promised to keep the information confidential, and that the organization’s donors were unlikely to be harassed so long as the information did not leak. “The risk of inadvertent disclosure of any Schedule B information in the future is small,” wrote the panel. “[A]nd the risk of inadvertent disclosure of the plaintiffs’ Schedule B information in particular is smaller still. To the extent the district court found otherwise, that finding was clearly erroneous.”

Was the finding of the district court “clearly erroneous?” In a word: No. Earlier in the case, the Ninth Circuit had itself found that “plaintiffs [ ] have raised serious questions as to whether the Attorney General’s current policy actually prevents public disclosure.” Although the Attorney General claimed to have tightened up its security procedures, the trial court still found those assurances lacking. Indeed, “During the course of this litigation, AFP conducted a search of the Attorney General’s public website and discovered over 1,400 publicly available Schedule Bs.”

Despite this, the Ninth Circuit panel concluded that it could trust that the Attorney General’s past mistakes would not be repeated, and therefore ruled that the plaintiff nonprofit had not demonstrated that its donors were likely to be harmed by disclosing its Schedule Bs to California. Now, the full Ninth Circuit has declined to re-hear the case.

This positions the case for a strong petition for certiorari to the U.S. Supreme Court. The Ninth Circuit’s decision echoes an increasingly strident line of argument from courts that are hostile to donor privacy: Nonprofits and their donors do not enjoy a general right to associational privacy under the First Amendment. They are only entitled to privacy if they can show—in this particular instance—that their specific donors will be subjected to ideological harassment and intimidation. This is, to borrow a phrase, clearly erroneous. As the Supreme Court held over 60 years ago in NAACP v. Alabama, there is a “vital relationship between freedom to associate and privacy in one’s associations.” The reason for this is simple: If supporters’ names are made public, those supporters are at increased risk for harassment and intimidation, “particularly where a group espouses dissident beliefs.”

NAACP v. Alabama remains good law and controlling precedent. Efforts by the Ninth Circuit and other courts to cabin and minimize the decision should be rejected. And it now appears that the only way for that to happen is for someone—perhaps AFP—to return to the Supreme Court. A cert petition is surely forthcoming. It merits watching closely.

Matt Miller is a Senior Attorney at the Goldwater Institute.

 

 

More on this issue

Donate Now

Help all Americans live freer, happier lives. Join the Goldwater Institute as we defend and strengthen freedom in all 50 states.

Donate Now

Since 1988, the Goldwater Institute has been in the liberty business — defending and promoting freedom, and achieving more than 400 victories in all 50 states. Donate today to help support our mission.

We Protect Your Rights

Our attorneys defend individual rights and protect those who cannot protect themselves.

Need Help? Submit a case.

Get Connected to Goldwater

Sign up for the latest news, event updates, and more.

Wait! Don’t close this yet!

We are grateful for your support of the Goldwater Institute’s efforts to advance and defend liberty throughout the United States. For over 36 years, we’ve been defending the rights of Americans to live their lives free from government interference.

And Goldwater is unique in that we direct our efforts to the 50 states where we introduce and advance innovative ideas that expand freedom. And we fight in courtrooms and capitals nationwide to defend individual liberty.

In 2024 alone, we scored over 50 policy and litigation victories defending liberty!

And that’s just the beginning.

Our plans for 2025 include:

  • Stopping pernicious DEI and other woke programs in America’s universities.
  • Ensuring that patients suffering from rare and terminal diseases have access to cutting-edge, lifesaving medical treatments, without having to first seek permission from the government.
  • Defending parental rights across the United States so that parents can send their kids to the school that best fits their needs, free from leftist indoctrination.
  • Eliminating government interference in the fundamental right of individuals to own property and use it as they see fit.
  • And much, much more

We seek to restore the presumption of liberty; that people are free to act without first asking permission from the government.

But we cannot do this without you. Will you join us as we fight to preserve and advance liberty throughout the country? As we seek new and innovative ways to defend freedom in all 50 states?

And there’s great news: Thanks to a generous Goldwater supporter, your donation today will be doubled!

So please, join us in fighting to advance liberty and score real wins for freedom from coast to coast!