The Supreme Court May Soon Rule on Donor Privacy

For those following donor-privacy issues, there was an important development in the case known as Americans for Prosperity Foundation v. Becerra in mid-December. The current status of this litigation is that the plaintiffs have petitioned the U.S. Supreme Court to take up the case for review, challenging the decision from the Ninth Circuit, which ruled against the plaintiffs. There have been 22 amicus briefs filed in support of AFP et al.’s petition for writs of certiorari, including one from The Philanthropy Roundtable.

The question before the court? “Whether California’s requirement that charitable organizations that fundraise in the State disclose to the state Attorney General’s office the identities of their substantial contributors violates the constitutional freedom of association.”

In considering this petition, the Court asked the Solicitor General what the federal government’s position is on this question. After a long wait, the Solicitor General has now issued that opinion in his own amicus brief. Bottom line: The Solicitor General supports granting the petition.

“The court of appeals erred in holding that the compelled disclosure of petitioners’ substantial contributors need not satisfy narrow tailoring. As this Court’s precedents make clear, compelled disclosures that carry a reasonable probability of harassment, reprisals, and similar harms are subject to exacting scrutiny, which requires a form of narrow tailoring. That distinguishes the disclosures here from those required to participate in voluntary tax-benefit programs; indeed, respondent does not even administer the California tax laws. And given the district court’s factual findings that respondent routinely discloses Schedule B forms, thereby creating a risk of harassment, and that those forms have proved unnecessary to respondent’s regulatory enforcement duties, the compelled disclosures here are subject to narrow tailoring but lack a reasonable fit to the asserted governmental interest. The court of appeals’ contrary holding compromises important associational interests, protected by the First Amendment, is of nationwide importance given California’s outsized role, and is in tension with decisions of this Court and other courts of appeals. The petitions for writs of certiorari should therefore be granted.”

Given this development, it is very likely that the Supreme Court will soon take up this important case. It’s pivotal for philanthropic freedom on the donor-privacy front. And this news comes at a good time given Vice President-elect Kamala Harris’s connection to the policy being challenged in the case, as this article from National Reviewexplains. Note also that the defendant, Xavier Becerra, has been tapped by Biden’s team to serve as the new secretary of health and human services.

We at the Roundtable will continue to take all the steps we can to advocate for the protection of donors’ information. Donors have many important reasons for wanting to keep their charitable giving private, whether for safety reasons or to keep the focus on issues rather than on themselves. Read more from the Roundtable here.

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