What would it take for the American Civil Liberties Union, the Independent Womens Law Center and the People for the Ethical Treatment of Animals (and Gun Owners of America), the People for the Ethical Treatment of Animals (and Gun Owners of America) and the Human Rights Campaign, the Proposition 8 Legal Defense Fund, to all be fighting the same enemy in the same trench? Nothing less than the First Amendment's implicit right to freedom of association. This is what the Supreme Court ruled.The Supreme Court ruled Thursday in Americans for Prosperity Foundation (v. Bonta) that California had violated this right by requiring that charities disclose the major donors of their beneficiaries as a condition to fundraising in California.California law requires charities that solicit donations to register with the state. They must also submit reports including their federal IRS Form 9990. Although most information on Form 990 is available to the public, federal law mandates that Schedule B which lists substantial donors of an organization be kept secret.Americans for Prosperity, the Thomas More Law Center and others refused to give their Schedule Bs to California. Instead, California sued them. They argued that the risk of public disclosure of sensitive information violates the right to association, particularly when California doesn't actually use it for investigating charitable misconduct.The Supreme Court unanimously ruled in 1958's landmark case NAACP v. Alabama that disclosure of members of a group may be as effective as any form of government action.The legal standard to be used in these compelled disclosure cases was an important issue in this case. The closer the connection between the government's desire to do something and the reason it is doing so, the tougher the standard.District court used a standard known as exacting scrutiny. It requires that government actions be significantly related to a sufficient important governmental interest.This rigorous standard is meant to reduce the chance that government actions might prevent people from exercising their First Amendment freedoms of association.After applying a less strict version of the stringent scrutiny standard, the U.S. Court of Appeals of the 9th Circuit reversed district's decision. This did not require a narrowly tailored connection. The Supreme Court agreed that the action of the state must be limited to the government's interest.The Supreme Court determined that there was a dramatic mismatch between California's dragnet for sensitive donors information and its stated objective to prevent charitable fraud. California not only failed to comply with its Schedule B disclosure requirements, but also did not use the information in its investigations into charities.The Supreme Court ruled that California's true reason for requesting this information was convenience. They wanted to have it close by in case they might need it. This was not enough to justify the disclosure of donor information.Justice Sonia Sotomayor joined Justices Stephen Breyer, Elena Kagan in writing in disapproval that the majority had abandoned the court precedents rather than applied them. She claimed that reporting and disclosure requirements under previous decisions do not directly impact associational rights.Instead of the majority stating that an upfront disclosure requirement violates the First Amendment automatically, the dissenters will examine whether any plaintiff's freedom to association was actually affected.The majority noted the many organizations that supported the plaintiff groups and filed briefs in support of them. They stressed the serious privacy concerns any advocacy group would face if donors were disclosed.Chief Justice John Roberts stated that the deterrent effect these organizations fear is pervasive and real. He also cited ample evidence of Schedule B disclosures made by the state and evidence that these organizations, their staff and supporters could be subject to harassment, intimidation or hostility upon making such disclosures. The Supreme Court ruled that California's confidentiality assurances are worthless.Roberts ended the court's opinion by stating this important point: The First Amendment protects freedom of association. This protection is not limited to actual restrictions on individuals' ability to form groups to achieve common goals. It is possible for association to be hampered by the threat of being stifled.This is a freedom that we can all share.Do you have a comment about this article? Send us an email at [email protected] with your comments. We may publish them in our We Hear You section. Include the URL of the article or the headline, along with your name and the town/state.
