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Transparency is for Government—Privacy is for People

February 24, 2021

February 24, 2021
By Timothy Sandefur

The Supreme Court is poised to decide a crucial case involving the privacy rights of people who donate to nonprofit groups. In a brief filed today, the Goldwater Institute and the Rio Grande Foundation argue that a California rule that forces nonprofit groups to turn over confidential donor information to the state violates the First Amendment by exposing donors to retaliation and even violence.

The case arises from a decision nearly a decade ago by California’s then-Attorney General, Kamala Harris, to force nonprofits doing business in the state to turn over the names, addresses, and employer information of their donors when filing annual financial reports. Although these groups had previously been allowed to submit these reports with redactions to prevent this private information being accidentally made public, Harris’s office announced that that would no longer be allowed. If a nonprofit group—even one not involved in politics—wanted to operate in California, it had to surrender this information in order, Harris said, to make it easier for the Attorney General to ensure that these organizations were following state regulations.

That was an odd assertion, since Harris could easily get this information in other ways that would better preserve donor privacy—through an audit, for example, or a subpoena. But Harris and her successor, Xavier Becerra, insisted that it was more “efficient” to demand the information this way.

They promised to keep the information private—but several groups, including the Thomas More Law Center and Americans for Prosperity, were skeptical of that promise. They feared that the Attorney General might inadvertently release the information, or put it in an online database that could be easily hacked. And their fears proved justified. A federal judge later found that Harris’s office posted nearly 2,000 of these confidential documents on a publicly accessible website. “The Attorney General’s current approach to confidentiality,” the judge wrote, “obviously and profoundly risks disclosure” of personal information.

That’s dangerous because posting people’s names, addresses, and employer identities on the internet runs the risk of making them targets for attack by people who disagree—sometimes violently—with the political positions of groups people donate to. In the wake of California’s Proposition 8 (prohibiting same-sex marriage), scores of donors to the yes campaign suffered vandalism, boycotts, and even physical violence, since their home addresses were posted on a state-run website. One organization even took information that the state required people to disclose and made maps of donors’ homes, in order to encourage retaliation.

The danger of retaliation is what led the Supreme Court in the 1950s to declare that state laws forcing organizations to disclose their donor information are virtually always unconstitutional. In a series of decisions—most famously NAACP v. Alabama (1958)—the justices ruled that people have not only the First Amendment right to donate to groups they agree with, but also the right to keep their support confidential. Forcing them to put their names and addresses on a government list, the Court said, not only risked violence, but also frightened donors away. When told that they would have to risk violent retribution or ostracism for donating to a political group or an ideological nonprofit, many people would prefer to remain silent—a phenomenon lawyers call a “chilling effect.” The NAACP case held that government could demand this private information—and risk the chilling effect—only when it had the most “compelling” reason for doing so.

In January, the Supreme Court announced that it would review the California case after the Ninth Circuit Court of Appeals upheld the Attorney General’s demand. The lower court concluded that the Attorney General’s need for “efficiency” was a good enough reason to force groups such as the Thomas More Law Center to turn over their donors’ private information. But as we argue in our brief today, “efficiency” has never been considered an important enough reason to justify forcing people to surrender their privacy.

What’s more, many courts have upheld laws that force people to turn over their private information on the theory that doing so serves the “informational interest”—in other words, that government can educate voters about who supports one side or another in an election or a public debate. That was the theory a federal trial court used when upholding a Santa Fe, New Mexico, ordinance that forced the Rio Grande Foundation to turn over its donor lists when it announced its opposition to a citywide ballot initiative to impose a two-cent sales tax on sugared soft drinks. That case is currently on appeal.

In today’s heated political climate, activists and politicians are increasingly demanding that people surrender their privacy when they donate to causes they believe in. The theory is that this encourages “transparency.” But transparency is for government. Privacy is for people. Forcing people to give up their privacy as the price of expressing their opinions is more likely to silence political debate than to make it less biased. As the Supreme Court has observed, “Anonymity is a shield from the tyranny of the majority.” We’re urging the Court to make clear that people have the right to both their confidentiality and their freedom of speech.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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