Americans for Prosperity Foundation v. Bonta
594 U.S. 595 (2021)
Rule of Law:
California’s requirement that charities disclose their major donors to the state Attorney General is facially unconstitutional under the First Amendment because it burdens donors’ associational rights and fails exacting scrutiny by not being narrowly tailored to an important government interest.
Facts:
- California law authorizes its Attorney General's Office to supervise and regulate charitable fundraising within the state.
- To operate and raise funds in California, charities must register and renew their registrations annually with the Attorney General.
- The California Attorney General requires renewing charities to file copies of their Internal Revenue Service Form 990, including Schedule B, which discloses the names and addresses of donors who contribute more than $5,000 in a tax year.
- Petitioners Americans for Prosperity Foundation and Thomas More Law Center are tax-exempt charities that solicit contributions in California and are subject to these requirements.
- Since 2001, both petitioners renewed their registrations and filed Form 990s but declined to file unredacted Schedule Bs to preserve donor anonymity.
- Prior to 2010, the Attorney General did not rigorously enforce the Schedule B disclosure obligation, but enforcement efforts increased significantly in 2010.
- In 2012 and 2013, petitioners received deficiency letters, and the Attorney General threatened to suspend their registrations and fine their directors and officers for continued noncompliance.
- Petitioners and their supporters have historically faced threats, harassment, protests, stalking, and physical violence when their affiliations became publicly known in other contexts.
Procedural Posture:
- Petitioners Americans for Prosperity Foundation and Thomas More Law Center each filed separate lawsuits in the Central District of California, alleging the disclosure requirement violated their First Amendment rights.
- The District Court granted preliminary injunctions prohibiting the Attorney General from collecting petitioners' Schedule B information.
- The Ninth Circuit Court of Appeals vacated the preliminary injunctions and remanded, holding that Circuit precedent required rejection of the facial challenge, and narrowed the injunction to allow collection but not public disclosure, applying "exacting scrutiny" to the as-applied claims.
- On remand, the District Court held bench trials, entered judgment for petitioners, and permanently enjoined the Attorney General from collecting their Schedule Bs, finding the requirement not narrowly tailored under exacting scrutiny and that California could not ensure confidentiality.
- The Ninth Circuit again vacated the District Court's injunctions, reversed the judgments, and remanded for entry of judgment in favor of the Attorney General, holding that the District Court erred by imposing a narrow tailoring requirement and that the disclosure regime satisfied exacting scrutiny.
- The Ninth Circuit denied rehearing en banc.
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Issue:
Does a state law requiring charitable organizations to disclose the identities of their major donors to the state Attorney General, even if kept confidential, violate the First Amendment right to free association by failing to be narrowly tailored to an important government interest?
Opinions:
Majority - Chief Justice Roberts
Yes, California’s disclosure requirement violates the First Amendment right to free association because it burdens donors' rights and is not narrowly tailored to an important government interest, failing exacting scrutiny. The Court affirmed that exacting scrutiny applies to compelled disclosure requirements, derived from cases like NAACP v. Alabama, and clarified that this standard requires the disclosure regime to be narrowly tailored to the government’s asserted interest, even if not the least restrictive means. Citing Shelton v. Tucker, the Court explained that a substantial relation to an important interest is insufficient if the means broadly stifle fundamental liberties. California's blanket demand for Schedule Bs, despite the important interest in preventing charitable fraud, presents a "dramatic mismatch" with that interest. The Court found that Schedule Bs are not an integral part of fraud detection, are rarely used to initiate investigations, and that evidence did not support claims that alternative means (like subpoenas) are inefficient. Instead, the State's primary interest appeared to be administrative convenience, which is insufficient to justify a burden on First Amendment rights. The Court found the requirement facially overbroad because its lack of tailoring and the weakness of the administrative convenience interest are categorical, present in every application. The Court noted that even confidential disclosure can chill association, and the risks of reprisal are heightened in the digital age, especially for organizations with controversial stances, as evidenced by the experiences of the petitioners and numerous amici.
Concurring - Justice Thomas
Yes, California's disclosure requirement violates the First Amendment. Justice Thomas agreed with the majority's judgment but would apply strict scrutiny rather than exacting scrutiny to laws compelling disclosure of protected First Amendment association, arguing that the right to assemble includes the right to associate anonymously. He expressed doubts about the origins and application of the overbreadth doctrine, stating that courts lack the power to invalidate a law in all circumstances merely because a substantial number of its applications are unconstitutional, or to issue advisory opinions. However, he joined the majority's Part III-A, understanding the Court's reasoning as based on fundamental legal problems with the law that will, in practice, prevent its lawful application against a substantial number of entities, including the petitioners, and noting that the judgment was not dependent on the overbreadth determination.
Concurring - Justice Alito
Yes, California's disclosure requirement is facially unconstitutional. Justice Alito agreed with the Chief Justice that California’s "blunderbuss approach" fails exacting scrutiny, which he emphasized has "real teeth" by requiring both narrow tailoring and consideration of alternative means. He noted that because the law fails exacting scrutiny, it necessarily fails the more stringent strict scrutiny. However, he was not prepared to definitively state that a single standard (exacting scrutiny) applies to all compelled disclosure requirements, pointing out that earlier seminal cases predated modern strict scrutiny doctrine and anticipated its principles, and Buckley v. Valeo should not be read to broadly limit those earlier decisions. He concluded that the choice between exacting and strict scrutiny did not affect the outcome in these cases and therefore did not need to be resolved.
Dissenting - Justice Sotomayor
No, California's disclosure requirement should be allowed. Justice Sotomayor argued that the majority discarded decades of precedent by not requiring plaintiffs to demonstrate an actual burden on associational rights before demanding narrow tailoring, nor showing that the law burdens a substantial proportion of those affected for a facial challenge. She contended that under existing precedent, a plaintiff must show a "reasonable probability" of objective harms (threats, harassment, reprisals) from disclosure. In this case, California's requirement is a nonpublic reporting requirement with security measures, and the petitioners failed to show that their donors would face such harms from confidential submission to state officials. Given the "modesty" of any First Amendment burden, she argued California's requirement should be justified by a "correspondingly modest showing" that it furthers the important government interest in preventing charitable fraud. She highlighted that Schedule B is integral to identifying self-dealing, inflated valuations, and other misconduct, acting as a "roadmap" for investigations, and that alternatives like subpoenas are inefficient, burdensome, and risk tipping off wrongdoers. She criticized the facial invalidation, noting that most charities are uncontroversial and most donors prefer publicity, meaning no "substantial number" of applications are unconstitutional.
Analysis:
This case significantly clarifies the "exacting scrutiny" standard for First Amendment challenges to compelled disclosure, explicitly incorporating a "narrow tailoring" requirement. This elevates the standard beyond mere "substantial relation" to an important interest, making it more challenging for governments to justify broad disclosure mandates. The ruling may lead to more successful facial challenges against disclosure regimes that prioritize administrative convenience over protecting associational privacy, potentially impacting campaign finance, lobbying, and other areas where donor identities are collected. It reinforces the importance of protecting anonymous association, especially in an era of heightened digital risks and political polarization, by requiring states to demonstrate a concrete need and precise fit for any disclosure requirement that could chill First Amendment activity.
