Giving without fear

A Supreme Court split on ideological lines Thursday struck down a California law that required charities to disclose personal information about major donors to the state’s attorney general. In the high court’s last decision of the term, the justices ruled 6-3 that the California law violated donors’ First Amendment right to freely associate with organizations and groups they support.

Writing for the majority, Chief Justice John Roberts concluded major donors faced substantial privacy concerns, noting supporters of the two organizations that sued have experienced bomb threats, protests, stalking, and physical violence.

Americans for Prosperity Foundation (APF) and Thomas More Law Center—both conservative nonprofits—challenged the requirement that charities renewing their registration with the state file copies of their IRS Form 990. Portions of the registration form are publicly available from the IRS, but Schedule B, which discloses the names and addresses of donors who contributed more than $5,000 in a tax year, is confidential. Nonprofits in California say they should not have to hand over Schedule B to the state attorney general’s office, which has shown it cannot protect donor information with the same level of security that the federal government provides.

“During the course of litigation, [APF] 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,” the court wrote in its decision.

Some states have passed laws protecting donors from just this level of personal information sharing.

While united in result, conservatives broke ranks on the path to get there. Roberts, joined by Justices Brett Kavanaugh and Amy Coney Barrett, embraced the “exacting scrutiny” standard, which requires the state to prove a sufficiently important governmental interest and that its law is narrowly tailored. Justice Clarence Thomas would have opted for a higher “strict scrutiny” standard. Justice Samuel Alito, in an opinion joined by Justice Neil Gorsuch, said they didn’t need to pick a standard, since California’s “blunderbuss approach” would fail either one.

California authorities argued the state’s interest in collecting donor information was justified to prevent fraud by charities. But Roberts said there was 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.”

The chief justice highlighted the district court’s finding that California could not give a single example where the donor information sought had helped with a fraud investigation. Roberts also quipped that “the state’s assurances of confidentiality are not worth much.” Even Justice Sonia Sotomayor’s dissenting opinion, joined by the other liberal justices, acknowledged the charities “have unquestionably provided evidence that their donors face a reasonable probability of threats, harassment, and reprisals if their affiliations are made public.”

Organizations from across the ideological and political spectrum supported Americans for Prosperity Foundation and Thomas More Law Center, from the liberal American Civil Liberties Union to the conservative American Center for Law and Justice.

Jonathan Keller, president of the California Family Council, which joined a friend-of-the-court brief in the case, recalled the chilling effect of public disclosure on his organization. In 2008, the California Family Council was involved in the campaign for Proposition 8, a ballot initiative to define marriage in the state as between one man and one woman. After donor information was posted by a major media outlet, potential board of directors members declined to join while others rotated off—all because of the disclosure. Others expressed concerns about harassment and threats if they contributed to the organization.

While donor information in that situation was publicly available because the California Family Council was conducting political activities, Keller said the incident was an example of what could happen to charitable, nonpolitical nonprofits.

“These tax documents that are normally supposed to be private and used only in extraordinary circumstances of enforcement were really being weaponized as political tools—an early form of cancel culture,” said Keller, adding that, “Everyone should be free to peacefully support causes they believe in without fear of harassment or intimidation.”