Americans for Prosperity Foundation v. Xavier Becerra, Attorney General of California

In this amicus brief, the ACLU, the ACLU Foundation, the NAACP Legal Defense and Educational Fund, the Knight First Amendment Institute at Columbia University, the Human Rights Campaign, and PEN America argue that California’s blanket demand for tax documents identifying the major donors to nonprofit organizations infringes the First Amendment right to associational privacy, in light of the state’s demonstrated inability to maintain the confidentiality of that information.

In the landmark decision of NAACP v. Alabama, which concerned Alabama’s attempt to obtain and publicize the NAACP’s membership lists, the Supreme Court recognized that government demands to unmask the members and donors of nonprofit organizations, especially dissident groups, threatens to chill associational freedoms.

When the government discloses associational information to the general public, it increases the risk that supporters of unpopular groups will be subjected to threats, harassment, and reprisals. Because the risk of chilling associational freedoms is especially acute under these circumstances, public-disclosure requirements are subject to more stringent judicial scrutiny than limited disclosures to the government on a reliably confidential basis.

Although California purports to keep donor information confidential, the record in this case reveals a disturbing pattern of widespread, though inadvertent, disclosure; for example, California inadvertently published more than 1,700 Schedule B forms on a public website, over a period ranging from 2012 until the eve of trial in this case.

In light of this record, California’s disclosure demand must be treated as a de facto public-disclosure requirement. Donors to nonprofit groups across the political spectrum reasonably fear that their private information will become public if it’s handed over to the State, and will limit their associations accordingly, causing significant financial harm to the nonprofit organizations they support.

While there are some circumstances, including the campaign finance context, where the chill caused by public-disclosure requirements is justified by a compelling government interest in informing the public or forestalling corruption, this is not one of those cases. California has other tools at its disposal, such as targeted subpoenas, to enforce its laws and prevent charitable fraud, without requiring every nonprofit that solicits contributions in the state to disclose its major donors.

Our brief therefore urges the Supreme Court to address the serious First Amendment issues presented by the specific circumstances in this case, without issuing a sweeping ruling about the constitutionality of disclosure requirements in other contexts where they may be more appropriate.