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Supreme Court Hears Major Donor Privacy Cases

In AFP v. Bonta, the Supreme Court Will Consider Whether the First Amendment Permits the Suspicionless Collection of Charitable Donor Information.

Arlington, Virginia—The U.S. Supreme Court today heard oral argument in the consolidated cases Americans for Prosperity Foundation v. Bonta (No. 19-251) and Thomas More Law Center v. Bonta (No. 19-255), which involve a First Amendment challenge to California’s practice of requiring all charities in the state to turn over a list of their large contributors, without any suspicion of wrongdoing. The Institute for Justice—the national law firm for liberty—filed an amicus brief in the case, urging the Court to hold California’s policy unconstitutional.

IJ Senior Attorney Paul Sherman said, “Charitable donors have many reasons why they may want to keep their identities private, spanning everything from the fear of harassment to the desire to avoid being inundated with charitable solicitations to the simple belief that charitable giving is a private matter. Today’s argument showed that California has no justification for its blanket policy of forcing charities to disclose their large donors to the state. The evidence in the case shows that 46 states police their charitable solicitation laws without this requirement and that California itself has used this information in at most 10 investigations.”

Charities that solicit contributions in California are required to register with the state and submit a copy of their IRS Form 990, but that document itself does not disclose the identity of any charitable donors. In 2010, the state began requiring charities to also submit a copy of Schedule B to Form 990, a document that lists the names and addresses of major donors to charitable organizations. The Americans for Prosperity Foundation and the Thomas More Law Center both challenged the requirement as a violation of the First Amendment. After a trial court held the disclosure requirement unconstitutional, the 9th U.S. Circuit Court of Appeals reversed.

Sherman added, “California’s defense that it will not make this information public rings hollow. Charities not only fear what will happen if this information becomes public, they also reasonably fear what the government itself might do with this information. If the government truly needs this information in a specific case, it can subpoena it as part of a legitimate investigation. What it cannot do is warehouse this information about tens of thousands of charities based on the possibility that it may someday be useful.”

Sherman concluded, “The 9th Circuit upheld these disclosures on the ground that they were fundamentally no different from the sorts of disclosures the Supreme Court has upheld in the context of campaign finance. That is a dangerous and expansive precedent that must be reversed. The Court has for decades provided the highest level of First Amendment protection to charitable activities while providing a shamefully low level of protection to First Amendment rights in the context of political campaigns. But the Court’s failure to properly defend the right of political speech should not become the exception that swallows the general rule that people have the right to privacy of association.”

About the Institute for Justice

Through strategic litigation, training, communication, activism, legislative outreach and research, the Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of society. IJ litigates to secure economic liberty, educational choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.

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