California’s Office of the Attorney General wants to force nonprofit organizations to disclose donors’ identifying information. The Thomas More Society, a non-for-profit national public interest law firm, disagrees. The United States Supreme Court heard two cases from the federal Court of Appeals for the Ninth Circuit on April 26, 2021. Thomas More Society attorneys filed an amicus curiae “friend of the court” brief supporting the Americans for Prosperity Foundation and the Thomas More Law Center (unrelated to the Thomas More Society) in their assertion that the First Amendment prohibits states from mandating 501(c)(3) nonprofit organizations from disclosing donor information without a compelling interest.

The lawsuits were brought against the California Attorney General (a seat recently held by Vice President Kamala Harris and newly appointed Health and Human Services Secretary Xavier Becerra) by two conservative donor-supported national organizations.

The Americans for Prosperity Foundation helps equip, educate, and empower millions of Americans to improve their lives and their communities around them, and the Thomas More Law Center defends and promotes America’s Judeo-Christian heritage and moral values through education and litigation.

The California Attorney General is attempting to require nonprofits who raise money in California to disclose their Schedule B information from their IRS 990 Forms, which reveal the names and addresses of top donors. Although California says it keeps this information confidential, the state has already leaked (allegedly without intent) thousands of Schedule B forms since the state Attorney General first started trying to enforce the requirement in 2010. If allowed to stand, the regulation would be a severe blow to the Thomas More Society’s work and mission.

“The California Attorney General’s Office is engaging in a reckless violation of our First Amendment rights and those of our donors,” stated Thomas More Society Counsel Michael McHale. “Given how active we are in challenging the California government, whether in fighting back against its unjust criminal pursuit of pro-life hero David Daleiden, or in challenging its now-debunked COVID-19 ban on religion all the way to the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, there is little doubt this requirement is intended to destroy organizations like ours. We support the challengers one hundred percent.”

The conservative plaintiffs filed a federal lawsuit in 2014. The district court agreed with them and struck down the requirement as violating the First Amendment right to Freedom of Association, because it imposes a major disincentive on donors to contribute to (and thus associate with) 501(c)(3) organizations. But a Ninth Circuit panel reversed the lower court, upheld the disclosure requirement, and treated public interest organizations more like political campaigns, which have less protection under the First Amendment (including that the government need not have a compelling interest to require donor information from political campaigns).

While the Ninth Circuit refused to rehear the case en banc (by the full court), five judges filed a blistering dissent and highlighted that supporters and leaders of the plaintiff organizations have previously suffered harassment, threats, violence, and economic boycotts. Donors would almost certainly suffer the same fate in today’s extreme cancel culture.

The Thomas More Society amicus brief states that the Ninth Circuit decision:

…blatantly violates the Supreme Court’s blackletter rule that outside of the electoral context, forced disclosure of donors’ identifying information (where, as here, there is evidence it will result in hostilities toward members or donors) requires three things: (1) “a compelling government interest”; (2) “a substantial relation between the sought disclosure and that interest”; and (3) “narrow tailoring so the disclosures do not infringe on First Amendment rights more than necessary.”

McHale detailed the primary reasons that the amicus opposes the Ninth Circuit decision and asks the high court to find for the petitioners, Americans for Prosperity Foundation and the Thomas More Law Center:

• Disclosure of donors’ identity would likely cause them significant public disgrace given the evidence of threats, violence, and economic reprisals already shown to employees and supporters of controversial organizations.
• Protecting donor confidentiality serves private interests because “the mere possibility of disclosure” would almost certainly, and quite reasonably, impede the willingness of donors to contribute to 501(c)(3) organizations that hold or promote views deemed highly controversial in modern society.
• Donor confidentiality serves critical public interests by ensuring that 501(c)(3) organizations have the financial support to help resolve social ills in our society. Many of these organizations rely entirely on donor support and would face financial ruin should their donors face the prospect of their own economic peril if their identities are disclosed. As such, protecting donors’ confidentiality helps ensure their uninhibited support of 501(c)(3) organizations that provide critical services not otherwise available to the public.
• The Ninth Circuit’s solution unacceptably leaves donor confidentiality up to individual judicial whim.

“The IRS holds the responsibility for validating tax-deductibility of donor support and the eligibility of organizations for the 501(c)(3) designation,” added McHale. “It has a history of keeping nonprofits’ Schedule B information confidential, while California, to no one’s surprise, does not. California’s incompetence in this regard is systemic, and thus its demand for our donors’ identities is a blatant violation of the First Amendment. We’re optimistic that a majority of the Supreme Court agrees, and we look forward to seeing this restriction tossed in the ever-growing ash-heap of California laws that violate the First Amendment rights of pro-life, pro-family, and pro-religious liberty organizations like ours.”

Read the Brief of the Thomas More Society as Amicus Curiae in Support of Petitioners in Americans for Prosperity Foundation v. Xavier Becerra, Attorney General of California and Thomas More Law Center v. Xavier Becerra, Attorney General of California, filed in the Supreme Court of the United States on March 1, 2021, here.