EFF to Supreme Court: States Face High Burden to Justify Forcing Groups to Turn Over Donor Names

Throughout our nation’s history—most potently since the era of civil rights activism—those participating in social movements challenging the status quo have enjoyed First Amendment protections to freely associate with others in advocating for causes they believe in. This right is directly tied to our ability to maintain privacy over what organizations we choose to join or support financially. Forcing organizations to hand membership or donor lists to the state threatens First Amendment activities and suppresses dissent, as those named, facing harassment or worse, have to decide between staying safe or speaking out.

In a California case over donor disclosures, we’ve urged the Supreme Court to apply this important principle to ensure that the bar for public officials seeking information about people’s political and civic activities is sufficiently high. In an amicus brief filed last week, EFF, along with four other free speech advocacy groups, asked the court to compel the California Attorney General to better justify its requirement that nonprofits to turn over to the state the names of their major donors.

The U.S. Court of Appeals for the Ninth Circuit in 2018 upheld California’s charitable donation reporting requirement, under which nonprofits must give state officials the names and addresses of their largest donors. The court, ruling in Americans For Prosperity Foundation v. Becerra, rejected arguments that the requirement infringes on donors’ First Amendment right to freely associate with others, and said the plaintiffs hadn’t shown specific evidence to back up claims that donors would be threatened or harassed if their names were disclosed.

The decision goes against years of Supreme Court precedent requiring the government, whether or not there’s direct evidence of harassment, to show it has a compelling interest justifying donor disclosure requirements that can divulge people’s political activities. Joined by the Freedom to Read Foundation, the National Coalition Against Censorship, the People United for Privacy Foundation, and Woodhull Freedom Foundation, we urged the Supreme Court to overturn the Ninth Circuit decision and rule that “exacting scrutiny” applies to any donor disclosure mandate by the government. By that we mean the government must show its interest is sufficiently important and the requirement carefully crafted to infringe as little as possible on donors’ First Amendment rights.

Even where there’s no specific evidence that donors are being harassed or groups can’t attract funders, the court has found, states wishing to intrude on Americans’ right to keep their political associations private must always demonstrate a compelling state interest in obtaining the information.

This principle was at the center of the Supreme Court’s unanimous landmark 1958 decision blocking Alabama from forcing the NAACP to turn over names and addresses of its members. The court never questioned the NAACP’s concerns about harassment and retaliation, let alone suggest that the organization had the burden of making some threshold showing confirming the nature or specificity of its concerns. The Ninth Circuit said California’s disclosure requirement posed minimal First Amendment harms because the Attorney General must keep the donor names confidential. It faulted the plaintiffs for not producing evidence that donors would be harassed if their names were revealed and not identifying donors whose willingness to contribute hinged on whether their identities would be disclosed by the Attorney General.

The court is wrong on both counts.

First, pledging to keep the names confidential doesn’t eliminate the requirement’s speech-chilling effects, we said in our brief. Groups that challenge or oppose state policies have legitimate fears that members and donors, or their businesses, could become targets of harassment or retaliation by the government itself. It’s easy to imagine that a Black Lives Matter organization, or an organization assisting undocumented immigrants at the border, would have justifiable concerns about turning their donor or membership information to the government, regardless of whether the government shares that information with anyone else. If allowed to stand, the Ninth Circuit’s decision gives the government unchecked power to collect information on people’s political associations.

Second, the burden is on the government to show it has a compelling interest connected to the required information before forcing disclosures that could put people in harm’s way. As we stated in our brief: “Speaking out on contentious issues creates a very real risk of harassment and intimidation by private citizens and critically by the government itself. Furthermore, numerous contemporary issues—ranging from the Black Lives Matter movement, to gender identity, to immigration—arouse significant passion by people with many divergent beliefs. Thus, now, as much as any time in our nation’s history, it is necessary for individuals to be able to express and promote their viewpoints through associational affiliations without personally exposing themselves to a political firestorm or even governmental retaliation.”

The precedent established by this case will affect the associational rights of civil rights and civil liberties groups across the country. We urge the Supreme Court to affirm meaningful protections that nonprofits and their members and contributors need from government efforts to make them hand over donor or member lists.