First Amendment

SCOTUS Rules That California Violated the First Amendment by Routinely Demanding Donor Information From Advocacy Groups

Six justices agreed that the state's "dragnet for sensitive donor information" imposes "a widespread burden on donors' associational rights."

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The Supreme Court today ruled that California violated the First Amendment by demanding that all charitable organizations operating in the state disclose information about their major donors. Given the potential chilling effect on freedom of association and the state's weak justification for demanding donor information, Chief Justice John Roberts says in the majority opinion, California's regulation fails to satisfy "exacting scrutiny," the standard that the Court has applied in other compelled disclosure cases.

The decision vindicates a principle that the Court recognized 63 years ago in NAACP v. Alabama, which involved that state's demand for the civil rights organization's membership lists. In that case, the Court noted that such requirements can pose a grave threat to freedom of association, exposing supporters of controversial organizations to the risk of harassment, threats, and violence. "Compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action," the justices observed in 1958.

Advocacy groups that objected to California's nosiness argued that it posed a similar danger, and the Court agreed. "The Attorney General's disclosure requirement imposes a widespread burden on donors' associational rights," Roberts writes in an opinion that was joined in most respects by five other justices. "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. We therefore hold that the up-front collection of [donor information] is facially unconstitutional, because it fails exacting scrutiny in 'a substantial number of its applications…judged in relation to [its] plainly legitimate sweep.'"

California has for many years officially required that nonprofit groups, as a condition of raising money in the state, submit both IRS Form 990, which includes information about a tax-exempt organization's mission, leadership, and finances, and Schedule B of Form 990, which lists the names and addresses of individuals who have donated more than $5,000 to the organization in a given tax year. But California did not begin enforcing the latter requirement in earnest until 2010.

The Americans for Prosperity Foundation and the Thomas More Law Center refused to comply, arguing that the disclosure requirement was inconsistent with the First Amendment. A federal judge agreed, but the U.S. Court of Appeals for the 9th Circuit reversed that decision and upheld the Schedule B requirement. The two groups, joined by a remarkably diverse array of nonprofit organizations spanning a wide range of interests and political viewpoints, asked the Supreme Court to overturn the 9th Circuit's decision.

Roberts' majority opinion says the 9th Circuit erred by failing to require that California's regulation be "narrowly tailored" to serve a compelling government interest—in this case, prevention of charitable fraud. "There is a dramatic mismatch…between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end," Roberts says, noting that more than 100,000 charitable organizations are registered in California and that 60,000 renew their registrations each year.

"Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California's fraud detection efforts," Roberts says. "It does not. To the contrary, the record amply supports the District Court's finding that there was not '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.'" Should the attorney general decide to investigate a particular organization, Roberts notes, he can always obtain donor information via a subpoena or audit letter.

"California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints," the Court says. "California does not rely on Schedule Bs to initiate investigations, and in all events, there are multiple alternative mechanisms through which the Attorney General can obtain Schedule B information after initiating an investigation. The need for up-front collection is particularly dubious given that California—one of only three States to impose such a requirement—did not rigorously enforce the disclosure obligation until 2010."

Fears about the consequences of such compelled disclosure are hardly fanciful. The petitioners "introduced evidence that they and their supporters have been subjected to bomb threats, protests, stalking, and physical violence," Roberts notes. In that context, it is rational to worry that major donors could face similar reprisals, a prospect that might deter them from supporting groups that promote causes they favor.

Compounding that concern, California has been amazingly lax in protecting the donor information it collects, which is supposed to be confidential but in practice is not. The Americans for Prosperity Foundation "identified nearly 2,000 confidential Schedule Bs that had been inadvertently posted to the Attorney General's website, including dozens that were found the day before trial," Roberts notes. "One of the Foundation's expert witnesses also discovered that he was able to access hundreds of thousands of confidential documents on the website simply by changing a digit in the URL. The court found after trial that 'the amount of careless mistakes made by the Attorney General's Registry is shocking.' And although California subsequently codified a policy prohibiting disclosure…the court determined that '[d]onors and potential donors would be reasonably justified in a fear of disclosure given such a context' of past breaches."

Roberts says "the gravity of the privacy concerns in this context is further underscored by the filings of hundreds of organizations as amici curiae in support of the petitioners." Those organizations (which include this website's publisher, the Reason Foundation) "span the ideological spectrum, and indeed the full range of human endeavors: from the American Civil Liberties Union to the Proposition 8 Legal Defense Fund; from the Council on American-Islamic Relations to the Zionist Organization of America; from Feeding America–Eastern Wisconsin to PBS Reno." Roberts adds that "the deterrent effect feared by these organizations is real and pervasive, even if their concerns are not shared by every single charity operating or raising funds in California."

Justice Sonia Sotomayor, in a dissent joined by Stephen Breyer and Elena Kagan, faults the majority for deeming California's requirement facially unconstitutional rather than limiting its analysis to organizations that can demonstrate a well-grounded fear of reprisals. "The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support," she writes.

Sotomayor concedes "there is no question that petitioners have shown that their donors reasonably fear reprisals if their identities are publicly exposed," although she questions "the likelihood of that happening." If the Court "had simply granted as-applied relief to petitioners based on its reading of the facts," she says, "I would be sympathetic, although my own views diverge." Instead, she argues, "the Court jettisons completely the longstanding requirement that plaintiffs demonstrate an actual First Amendment burden before the Court will subject government action to close scrutiny."

The Institute for Justice, which backed the petitioners in this case, takes a different view. "Today's ruling reaffirms vital protections for the rights of privacy and association," says Institute for Justice senior attorney Paul Sherman. "California required tens of thousands of charities to disclose their most sensitive donor information and then mishandled that confidential information so badly that it was easily available to anyone with an internet connection. The Court correctly recognized what a grave threat this requirement posed to the rights of free speech and association."

NEXT: Brickbats: July 2021

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  1. How does this impact CRT?

    1. It doesn’t, but the ruling I referenced below clearly seems to indicate that the Supreme Court hasn’t yet been sufficiently subjected to through CRT conditioning yet.

      Alito wrote the majority opinion. Is he still allowed on Twitter after saying that?

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  2. Meanwhile, SCOTUS ruled that Arizona’s new voting laws are just fine the way they are–even if them impact different people differently.

    “The mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote”

    —-Majority Opinion

    https://www.reuters.com/world/us/voting-rights-breyers-future-spotlight-us-supreme-court-2021-07-01/

    1. Split 6-3 along partisan lines. Kagan’s dissent is embarrassing. “VRA Good”, quotes racist folk song lyrics from the 1890s, as if that were legal reasoning

      1. The Dukes of Hazzard gad Boss Hog. SCOTUS has Khagan.

    2. This ruling is important on the voting law front, with so many states writing their own rules for fear of having their power to do so subsumed by H.R. 1. It was a 6-3 ruling, and that should answer a lot of questions for similar challenges as they arise in other states.

      The timing of this ruling is, also, unintentionally hilarious in that so many progressives were claiming that ballot integrity is a ridiculous concern that serious people shouldn’t even consider–after the election board in New York double counted 135,000 ballots in election for mayor.

      “The board on Tuesday reported that 941,832 ranked-choice votes had been cast for mayor during last week’s primary, the first such election in which the ranked-choice method was used, while 799,827 were initially counted and reported on June 22

      https://news.yahoo.com/york-election-fiasco-spurs-republican-110000544.html

      There was a discrepancy. Mistakes were made. Everything is alright now. We’ll keep adding people’s third and fourth choices to the top two. When somebody wins, we’ll let you know. Trust us. We’re progressives, we’re experts, and we care about people.

      1. I don’t doubt that nothing nefarious is happening in NYC elections. They really could just be that incompetent.

        That said:
        1. I sure as hell wouldn’t want to be the software developer or qa guy on that voting system. Or any voting system. Screw being in the middle of that when a bug is found.

        2. Whether or not there is manipulation, this looks bad. Anything not open and transparent will give the losing side a way to cast doubt on the election results. Period.

        So, yeah, NYC is screwing the pooch here. Lots of people already distrustful are now even more so. Good job promoting democracy with that one guys!

        1. Could be or maybe they did not think they would be caught?

    3. I despise this ruling even though I disagree on the outcome because the ruling states essentially that the plantiffs failed to properly prove disparate impact, having used individual testimony instead of statistics. This means that this case will be brought once again within the year and within the 9th circuit to essentially gut the law again.

      The entire thesis of law invalidity based in disparate impact and not racist intent needs to be struck down.

      It was a very weak ruling.

      1. Even though I agree on the outcome *

    4. Important to the interpretation of that line are the specific statistics about disparity of impact actually substantiated by the trial court and cited by the majority opinion.

      Briefly, they found that almost nobody was impacted by the law change and even among those who were impacted, the disparity of impact across different racial groups was very small.

    5. Every day, for the rest of my life, I will thank whatever deities run the universe that Hillary Clinton did not get to appoint any supreme court justices.

  3. Sotomayor’s dissent basically says “Show me why you need your privacy and then we’ll talk…”

    1. It’s worse than that. She wants you to incur damages first.

    2. If the Court had simply granted as-applied relief to petitioners based on its reading of the facts, I would be sympathetic, although my own views diverge. But the Court’s decision is not nearly so narrow or modest. Instead, the Court jettisons completely the longstanding requirement that plaintiffs demonstrate an actual First Amendment burden before the Court will subject government action to close scrutiny. It then invalidates a regulation in its entirety, even though it can point to no record evidence demonstrating that the regulation is likely to chill a substantial proportion of donors.

      We get it lady, you don’t give a shit about individual rights.

      Sotomeyer refers to the courts ruling in regards to NAACP membership roles being solicited in her introduction. Ironically, I would assume, because there is no evidence those much more narrowly tailored requests were likely to chill a substantial proportion of members of other social organizations in the South.

    3. You need government permission to exercise your rights and you’d better have a good reason for wanting to exercise them.

  4. Today was a good day, the slightly more conservative court went the right way on voting and elections, and we know this because far left democrat dirtbags are shitting in their diapers about it.

    1. “The mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote”

      —-Majority Opinion

      The Court just shit-canned the central premise of social justice. They should be going nuts.

      Social justice is the relation of balance between individuals and society measured by comparing distribution of wealth differences, from personal liberties to fair privilege opportunities.”

      https://en.wikipedia.org/wiki/Social_justice

      1. Social Justice Worriers

      2. Youre reading more into it than the courts will. It focused heavily on wrong proof instead of just trashing disparate impact generally.

        1. That statement, in the majority opinion, contradicts the central premise of equality of outcome. Are they about to overturn the CRA?

          No.

          But if you’re depending on the Supreme Court to back any particular law in the future on the basis of equality of outcome, the majority just told you, they don’t look at the world through that prism–so you better pack it.

          If the progressives aren’t mad as hell, they should be.

          1. Ken, the progs are almost always mad as hell. You don’t participate in and/or condone looting a store for tennis shoes while living a blissful Zen existence.

          2. The implication of this decision is that Section 2 claims against state voting laws must be based upon disparate treatment claims, and the evidence of disparate impact on minority groups is insufficient.

            From the opinion.

            1. Do you think progressives should be glad to hear that?

              Do you think progressives are glad the Court upheld Arizona’s laws on that basis?

              “The mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote”

              —-Majority Opinion

              Whatever else you read in the opinion, it also says that–and upholds Arizona’s laws on that basis. If it isn’t a total and complete refutation of everything social justice warriors might want, it does, at least, stick a stiff arm in the face of their central premise. There isn’t a social justice warrior alive who would make that statement I quoted.

              No, it doesn’t overturn the CRA, but it’s unreasonable to expect the Court to do so on the basis of this case. If the Court doesn’t want this decision to be cited as a reason to start getting rid of affirmative action, redistricting oversight, etc., etc. nationally, it makes sense to point out that they aren’t deciding in favor of Arizona’s voting law–because they’re overturning the basic assumptions of what constitutes racism at this time.

              That being said, the statement I quoted is a slap in the face of social justice warriors, and progressives are right to be upset about getting slapped in the face.

              1. P.S. No, they didn’t overturn the CRA, but if Hillary Clinton had appointed the last three Supreme Court justices instead of Trump, we wouldn’t see a statement like the one I quoted in the majority opinion.

    2. far left democrat dirtbags are shitting in their diapers about it
      Yeah, now they’re going to have to rely even more heavily on intelligence agencies for their opposition research.

  5. Great ruling, and really disappointing it wasn’t a 9-0 verdict. Sotomayor in particular, I would expect to understand the civil rights implications better, or at least apply them in a less partisan fashion.

    1. Sotomayor in particular, I would expect to understand the civil rights implications better, or at least apply them in a less partisan fashion.

      LOL and LOL again!

    2. She does, she just does not want to preclude the California government from targeting its enemies without those enemies explicitly asking for protection because she likes the chilling effect in this case, because it is not going to donors from woke charities who are going to suffer.

  6. Now do practically every criminal law. Are they narrowly tailored? Of course they aren’t. Fuckng bs.

    1. Gee, you’re dumb.

      1. Does he belong to a church that scriptures have been discredited and worship perverts?

        You shouldn’t be insulting others intelligence magic underwear boy!

    2. I think they do treat every criminal law like that with respect to the first amendment.

      1. That’s untrue. Just look at the way criminal laws differ across state lines. There are enormous differences in the way people are punished. The laws are no where close to being “narrowly tailored” or even rational. There’s a giant blank check to punish people when it comes to criminal laws. But the cherrypicking mfers suddenly discover limits on state power when it’s about regulating big money or some corporation.

        1. You don’t have the first fvckin clue what you are babbling about, that is apparent.

        2. can you define enormous and how that word is truly applicable in how you use it above with a some specific examples and average outcomes per state rather then cherry picking one example or another?

  7. Roberts’ majority opinion says the 9th Circuit erred by failing to require that California’s regulation be “narrowly tailored” to serve a compelling government interest—in this case, prevention of charitable fraud fucking with conservative organizations.

    FTFY

  8. >>California has been amazingly lax in protecting the donor information it collects

    feature. and was there punishment for the 1A violation?

    1. They lost, isn’t that punishment enough for poor old California.

  9. “From 1999 to 2008, of the Ninth Circuit Court rulings that were reviewed by the Supreme Court, 20% were affirmed, 19% were vacated, and 61% were reversed; the median reversal rate for all federal appellate courts was 68.29% for the same period.”

    Since 2007, the 9th Circuit had a reversal rate of 78 percent. That puts it in second place behind the 6th Circuit (79.7 percent). The circuit with the lowest rate of overturned decisions is the First Circuit at 50 percent. Since 2007, SCOTUS has released opinions in 993 cases.

  10. Joe Biden absurdly claimed “severe damage” has been done to the Voting Rights Act after SCOTUS upheld the AZ election law, and Biden repeated Elena Kagan’s false claim that SCOTUS upheld “a significant race-based disparity in voting opportunities.”
    https://dailycaller.com/2021/07/01/joe-biden-condemns-supreme-court-arizona-voting-law-decision/

    And yet, the new law in AZ is far less restrictive than election laws in DE, NY and many other Blue states.

    Nothing like a racist (i.e. Biden eulogized KKK Grand Wizard Robert Byrd and sponsored crime laws in the 1990s that imprisoned more blacks and Latinos than whites for longer sentences) falsely accusing Republicans of being racists.

  11. …In that case, the Court noted that such requirements can pose a grave threat to freedom of association, exposing supporters of controversial organizations to the risk of harassment, threats, and violence

    CA is trying to pull the same shit with Newsom’s recall petition signers:

    https://www.google.com/amp/s/www.kcra.com/amp/article/proposal-would-let-recall-targets-see-who-signed-petition/36099882

  12. Of course they did. CA Democrats, especially the Attorney General, care absolutely nothing about Constitutional rights. They *hate* the Constitution. It gets in their way. Newsom and Company believe they are above the law and a country unto themselves who may do whatever they wish to their “subjects” with impunity.

  13. So privacy is constitutional for someone giving money to a corporation

    Is privacy constitutional for a woman making personal medical decisions?

    Discuss

    1. LOL Butthurt JFree with the whataboutism parade. You’re not an authority anywhere, so why don’t you shove it? 😀

      1. Ah – so the important reason to be a DeRp is to decide which Top Men get to decide which privacy to keep private and which to default to the state’s decision-making.

        1. JFree dancing with the strawman because no real person would ever want to dance with him. It’s getting delicious, JFree. 😀

    2. Like whether or not she has gotten vaccinated?

  14. I remember der Rev barking about this. Hopefully he’s gonna haul his vanquished marxist ass in here and delight us with something exquisite from the whinery.

  15. Everybody knows why the state government of California wants to collect these lists. Everybody, including the three leftist judges. That’s what makes their dissent so disturbing.

  16. If the donors paid by credit card, anyone serious about getting info on the donor shouldn’t have much trouble getting it. My advice: donate cash, anonymously.

  17. I don’t understand why the cash flow of charities and churches is allowed to be secret.

    It seems like designed corruption in our fictional economy.

    What other purpose does this secrecy serve?

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