U.S. Supreme Court

Donor disclosure requirement violates First Amendment rights of association, SCOTUS rules

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The U.S. Supreme Court ruled 6-3 Thursday that California's donor disclosure requirement violates the First Amendment.

The high court struck down a policy of the California attorney general’s office that requires nonprofits to disclose names and addresses of major donors.

The disclosure requirement “imposes a widespread burden on donors’ associational rights,” Chief Justice John G. Roberts Jr. wrote in the majority opinion.

“When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals,” Roberts wrote. “The risk of a chilling effect on association is enough.”

Writing at his Election Law Blog, Rick Hasen, a professor at the University of California at Irvine School of Law, said the decision will make it harder to uphold campaign disclosure rules.

Roberts’ opinion was joined in full or mostly joined by the court’s other conservative justices: Brett M. Kavanaugh, Amy Coney Barrett, Neil M. Gorsuch, Clarence Thomas and Samuel A. Alito Jr.

Roberts said California has an important interest in preventing wrongdoing by charities, but there is “a dramatic mismatch” between that interest and the donor disclosure policy.

“California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints,” Roberts said.

The state failed to consider alternatives to “indiscriminate upfront disclosure,” Roberts said.

Roberts cited NAACP v. Alabama, a 1958 Supreme Court case holding that Alabama could not require the NAACP to disclose its membership list.

The two charities that challenged the California requirement both back conservative values: the Americans for Prosperity Foundation and the Thomas More Law Center. They had alleged that disclosure would make their donors less likely to contribute and subject them to the risk of reprisals.

Roberts noted that hundreds of organizations had submitted amicus briefs supporting the challenge to donor disclosure. The groups “span the ideological spectrum,” Roberts said.

Justice Sonia Sotomayor dissented, in an opinion joined by Justices Stephen G. Breyer and Elena Kagan.

Sotomayor said the Supreme Court typically requires plaintiffs to demonstrate a First Amendment burden before demanding that a law be narrowly tailored to support a governmental interest.

But today, the high court is requiring that disclosure requirements be narrowly tailored even when a plaintiff demonstrates no burden, she said.

“The same scrutiny the court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support,” Sotomayor said.

Roberts’ opinion was joined in full by Kavanaugh and Barrett.

Three other justices who joined Roberts’ opinion—Alito, Gorsuch and Thomas—did not join one section calling for an “exacting scrutiny” standard of review, SCOTUSblog reported in early coverage.

Alito explained the dispute in a concurrence joined by Gorsuch.

Roberts would hold that the exacting-scrutiny standard in election law cases applies to all First Amendment challenges to compelled disclosure. Thomas would apply strict scrutiny. Alito wasn’t prepared at this time to hold that a single standard applies to all disclosure requirements.

The consolidated cases are Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta.

See also:

ABAJournal.com: “SCOTUS will consider challenges to charitable donor disclosure requirements”

ABAJournal.com: “SCOTUS case on disclosure of nonprofit donor names raises First Amendment questions”

ABAJournal.com: “Right of association isn’t infringed by disclosure of charitable donors to state, 9th Circuit says”

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