Today, the Supreme Court voted 6-3 to uphold the right to donor privacy in Americans for Prosperity Foundation v. Bonta. Mountain States Legal Foundation had previously filed an amicus curiae—or “friend of the Court”—brief supporting the challengers in their fight against California’s extreme data collection mandate.
The Court’s opinion revitalizes protections for nonprofit donor lists which trace back 60 years. This time, the Court confronted whether California’s far-reaching demand under then-California Attorney General Kamala Harris (and continued by her successors) violated the First Amendment. The state had demanded that charities disclose their IRS Form 990 Schedule B—the list of donors to the nonprofit organization—as a precondition for being able to operate in California.
The Court clarified that demands for donor lists must be tailored to a particular pressing need from the government—not just a dragnet for data. That is because “[t]he deterrent effect feared by these organizations is real and pervasive.” A broad cross-section of advocacy groups had weighed in on the case, crossing ideological lines. Charities ranging from the ACLU and Human Rights Campaign to MSLF and the Cato Institute all came out to team up on the unconstitutional California law, noting how it chilled their advocacy.
For decades, the nation’s high court has made clear that it violates the First Amendment when a state tries to warehouse sensitive donor information. In NAACP v. Alabama, for example, the U.S. Supreme Court held that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” and that there is a “vital relationship between freedom to associate and privacy in one’s associations.” And in Bates v. Little Rock, the Court rejected a data collection scheme where Civil Rights groups were required to disclose their donors under the pretense of making sure all local taxes were paid.
Americans for Prosperity proved that they were subject to threats, harassment, and reprisals from those opposed to the nonprofit’s ideological mission. Worse, California didn’t even do a good job protecting the data it collected—it put the information on the state attorney general’s website. In times of cancel culture, this was very dangerous indeed. And there was even proof that the state did not even need the information—it had other tools to get donor lists if the state was actually investigating a particular charity for alleged fraud.
All California wanted was to have the information “just in case.” But making life easier for a government bureaucrat isn’t a strong enough reason to invade people’s privacy in what causes they support. As the Chief Justice said, “[m]ere administrative convenience does not remotely reflect the seriousness of the actual burden that the demand for Schedule Bs imposes on donors’ association rights.”
MSLF applauds the Court for clarifying the vital First Amendment rights of nonprofit organizations, which are vital to civil society. This is a major win for the First Amendment—but the fight won’t end here. Many states and cities demand intrusive donor information before people can speak. We need to continue the fight to protect the privacy of association in this era of polarized politics.