Donor Privacy under Attack by California Attorney General

Donor Privacy

Karen Donnelly

February 15, 2017 10:14 AM

The Ninth Circuit should reconsider its decision in Center for Competitive Politics v. Harris. The recent Americans for Prosperity v. Harris case now pending appeal before the Ninth Circuit raises the same constitutional question, to wit: Is California’s compelled disclosure of charitable organizations’ major donors facially unconstitutional?

Since NAACP v. Alabama, states know well that compelled disclosure of member or donor names stifles their ability to “pursue their collective effort to foster beliefs, which they admittedly have the right to advocate” and “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.”

There are many reasons we choose to give anonymously: privacy, religious beliefs, modesty, fear of reprisal personally or professionally, or other manifestations of public hostility. This is even more critical today in the wake of increased cybersecurity concerns and botched enforcement scandals that target certain groups because of political affiliation or ideology.

In the first of three recent cases on this issue,[1] the Center for Competitive Politics sought to enjoin the California Attorney General from requiring disclosure of the names and contributions of the Center’s major donors on IRS Form 990 Schedule B. While the IRS requires charitable organizations to file Schedule B with their annual return, Schedule B is exempt from public disclosure under IRC § 6104. Notwithstanding this important privacy protection for anonymous speech and association, the Ninth Circuit affirmed the federal district court’s denial of a preliminary injunction.

However, another federal district court in California reached a different outcome in two subsequent cases. After a trial on the merits in both Americans for Prosperity v. Harris and Thomas More Law Center v. Harris, the district court found that California’s Schedule B disclosure requirement is not substantially related to a compelling government interest and is not narrowly tailored. In light of the much denser record from a full trial on the merits in both Americans for Prosperity and Thomas More Law Center, the manifest weight of the evidence requires the finding that the disclosure requirement is facially unconstitutional. Limited by the Ninth Circuit’s earlier ruling in Center for Competitive Politics, however, the district court granted the injunction on the as-applied challenge rather than the facial challenge, notwithstanding its clear finding that the requirement is facially unconstitutional.

Unlike the Ninth Circuit in Center for Competitive Politics, the district court in Americans for Prosperity and Thomas More Law Center “had the benefit of holding [two separate] bench trial[s]” addressing the same issue, and as stated in Americans for Prosperity, “was left unconvinced that the attorney general actually needs Schedule B forms to effectively conduct its investigations.” In fact, the court found that “the attorney general was hard pressed to find a single witness who could corroborate the necessity of Schedule B forms in conjunction with their office’s investigations.”

In both cases, testimony indicated that the attorney general’s office seldom used Schedule B in investigations and that in “approximately 540 investigations conducted over the past 10 years … only five instances involved the use of a Schedule B.” Attorneys overseeing such investigations further testified that successful investigations can be completed without Schedule B (even where they know Schedule B is missing) and that the same information can be obtained through less restrictive means. The “testimony of multiple lawyers within the attorney general's office clearly indicate that the attorney general could have achieved its end by more narrowly tailored means.” Finding, therefore, that it is “indeed possible for the attorney general to monitor charitable organizations without Schedule B,” the attorney general is limited in pursuing its interests “by means which do not ‘broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’”

In addition, the district court in Americans for Prosperity spent significant time noting the numerous inadvertent disclosures of confidential donor information by the attorney general in contravention of the privacy protections afforded by the First Amendment and IRC § 6104 as well as assurances from the office that steps were in place to prevent disclosure. “Taken in the context of a proven and substantial history of inadvertent disclosures,” the court in Thomas More Law Center found “this inability to assure confidentiality increases the ‘reasonable probability’ that compelled disclosure of Schedule B would chill Plaintiff's First Amendment rights. Donors and potential donors would be reasonably justified in a fear of disclosure given such a context.” As NAACP v. Alabama made clear, the disclosure of donor names to a political office of attorney general, which increases the risk of abuse of enforcement power, could be just as devastating as that office’s leak of the confidential information to the media or to the public.

Given the voluminous record now before the Ninth Circuit and the lower court’s holdings in Americans for Prosperity and Thomas More Law Center, the Ninth Circuit would be “hard pressed” not to recognize that this disclosure requirement fails strict scrutiny and is therefore facially unconstitutional.

Organizations should not be forced to file a lawsuit and prove the likelihood of threats, harassment, etc., in order to free themselves of California’s unconstitutional burden on their First Amendment rights to speak and associate anonymously, even if on behalf of politically disfavored causes. That defies the very purpose and protection of the right to speak and associate anonymously.

As affirmed in NAACP v. Alabama more than 50 years ago, the First Amendment protects anonymous speech and association, and our democracy depends upon our ability to defend the same.


[1] In another case, Citizens United v. Schneiderman, the Second Circuit is slated to review a lower court’s ruling on this same issue. New York is the only other state presently withholding charitable fundraising registrations to those who do not provide Schedule B.


Karen Donnelly is a partner in the Kansas City office of Copilevitz & Canter. Her practice focuses on First Amendment law within the context of charitable and political speech. She represents nonprofit and for-profit clients within the nonprofit fundraising community in defense of First Amendment claims as well as other constitutional issues. She also represents clients in the defense of state and federal government investigations and other civil litigation.

Trending Articles

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards

by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

The Long, Short, Thick and Thin of It

by Avrohom Gefen

“Appearance discrimination” based on employees’ height and weight is the latest hot-button issue in employment law. Here’s a guide to avoid discrimination.

Woman stands in front of mirror holding suit jacket

Trailblazing Titans of the Industry: Announcing the 4th Edition Best Lawyers: Ones to Watch® in America

by Best Lawyers

Best Lawyers honor and celebrate these talented, innovative newer lawyers who are trailblazing their way to victories in courtrooms across the country.

Connected web above map of the U.S.

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Pearls of Wisdom: Celebrating 30 Editions of Best Lawyers’ Rankings

by Best Lawyers

In celebration of our landmark 30th edition, Best Lawyers’ leadership explains how the world’s original and most trusted legal awards maintain their esteem, integrity and reputation for excellence among the top legal entities and their clients.

Best Lawyers logo for 30th edition release with gold glitter in background

Vanguards of Victory: Best Lawyers: Ones to Watch in Canada 2024

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in Canada™ has been announced, and the lawyers showcased by these awards are rising to the challenge each day as advocates for clients all across the country.

Blue and black background with small squares connected by lines

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background


Thomson Rogers: Toronto Personal Injury Lawyers

by Thomson Rogers

Since establishment in 1935, Toronto-based firm Thomson Rogers has consistently delivered results for their clients struggling through complex litigation.

Top of a Staircase Featuring Two Large Black Doors with Bookshelves and Chairs on Each Side

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag


How Long Does a Felony Stay On Your Record in California

by Peter Blair

A felony can remain on your record for life in California. Some felonies qualify for expungement. Learn how to remove a felony conviction from your record in California.

Hand setting bird free out of a guarded fence

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US