SCOTUS, The California Attorney General, and Free Speech


Thursday, July 15, 2021

This term, the Supreme Court heard Americans for Prosperity Foundation (AFPF) v. Bonta, a case regarding the freedom of association under the First Amendment. 

The case stems from a requirement that charities in California disclose a list of their donors to the state Attorney General’s Office. This requirement has been in place for decades, but some charities refused to provide the California Attorney General’s Office with the required donor information. AFPF has refused to give a list of its donors to the state due to concerns about potential harassment. 

Since AFPF is a center-right charitable organization, its work can be controversial in a progressive state like California. Naturally, many of AFPF’s supporters wish to keep their donations anonymous to avoid controversy. In theory, California’s donor disclosure mandate recognizes the sensitivity of the donors’ information. However, the state has a history of frequently leaking supposedly confidential information to the public.

In light of the leaks, AFPF decided against giving the  California Attorney General’s Office their donors’ identities. In response, the Attorney General threatened to strip the AFPF of their status as a charity and fine their leadership. In an effort to protect the privacy of their donors and freedom of association, the AFPF filed suit.

The District Court held a bench trial in 2016, during which the Attorney General claimed that the collection of donor information was a compelling governmental interest because it allowed the state to investigate potential incidents of charitable fraud. If the donor mandate were considered a compelling governmental interest by the District Court, it would more likely be deemed constitutional.

Fortunately, the Court was skeptical of the Attorney General’s claims and it found little evidence that the collected donor information was used to investigate charitable fraud. Even worse, the District Court trial revealed that the confidential information of over 1,000 donors had been posted publicly on the Attorney General’s website. Moreover, the Court found that the mandated collection was “more burdensome than necessary,” ruling in favor of the AFPF. However, a Ninth Circuit panel heard an appeal to the District Court’s ruling, siding with the California Attorney General.

In a 6-3 ruling along ideological lines, the Supreme Court reversed and remanded the Ninth Circuit’s judgment. Writing for the majority, Chief Justice Roberts cited the Court’s precedent in NAACP v. Patterson, a unanimous ruling which held that it was unconstitutional for the state to subpoena NAACP membership lists because it burdened freedom of association. Similarly, Justice Roberts argued that the California Attorney General’s collection of donor lists had a chilling effect on the ability of Californians to exercise their First Amendment rights.

The Court held California’s disclosure mandate to a standard of exacting scrutiny, which states that there must be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Although the Court recognized that the state has an important interest in preventing charitable fraud, citing the District Court trial, the majority argued that the disclosure mandate burdened Californians’ freedom of association under the First Amendment. Furthermore, the court held that the disclosure requirement was not narrowly tailored to fit the state’s interest, siding with the plaintiff.

Although an ideologically diverse coalition of charities, from the ACLU and the NAACP to the Becket Fund, filed amicus curiae or “friend of the court” briefs supporting the AFPF’s freedom of association argument, some mainstream media outlets painted the ruling as a victory for conservative groups. The Supreme Court’s decision will certainly help conservative charities raise funds without their donors fearing harassment but, as some legal commentators noted, the decision also represents a broad victory for associational privacy under the First Amendment. Regardless of their politics, no individual should fear harassment because of the charities to which they choose to donate.

The Supreme Court’s ruling has significant implications beyond California’s unconstitutional donor disclosure requirement. Congressional Democrats’ so-called For the People Act includes a provision that would similarly require large donations to the political campaigns of nonprofit organizations to be reported. Although the Act has stalled in the Senate, if the bill were signed into law, it would likely face a similar exacting scrutiny standard, per the Supreme Court’s holding in AFPF v. Bonta. While the Court’s recent ruling far from guarantees that this provision of the For the People Act would be struck down, the exacting scrutiny standard of review outlined by the majority poses a constitutional barrier to the Democrats’ legislation.

Ben Snead lives in Portland, Oregon, and is pursuing an undergraduate degree in Political Science at the University of Oregon's Clark Honors College. During his free time, Ben enjoys going on hikes and road trips in the Pacific Northwest.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Ben Snead

Ben Snead lives in Portland, Oregon, and is pursuing an undergraduate degree in Political Science at the University of Oregon's Clark Honors College. During his free time, Ben enjoys going on hikes and road trips in the Pacific Northwest.

ben.snead on Instagram @ben.snead

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