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.

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