Why did over 60 organizations write 13 friend-of-the court briefs asking the Supreme Court to hear a case? Because the case in question will affect all of them and, more importantly, their donors.
Nonprofit organizations rely on the generosity of people who want to advance their chosen causes. But California is jeopardizing donors’ privacy rights.
In 2010, the California Attorney General’s Office changed its policies to require nonprofit organizations across the country that fundraise in the state to disclose the names and addresses of their largest donors.
Because California is the nation’s most populous state, this will affect thousands of donors to charities of all stripes. One such organization is Thomas More Law Center (TMLC), a legal nonprofit that defends religious freedom, family values, and the sanctity of life.
For years, TMLC raised funds in California without any issues. But after the California Attorney General implemented a new requirement for all charities, it told TMLC to hand over its major donors’ names and addresses or stop fundraising in California altogether. The Attorney General did this even though his employees admitted that providing all major donors’ information up front was not necessary to properly regulate nonprofits.
Alliance Defending Freedom (ADF) has asked the U.S. Supreme Court to hear TMLC’s case. And over 60 organizations—including libertarian think tanks, a nonprofit fund for Hispanic leaders, 24 family policy organizations, a leading network of charitable donors, free-speech advocates, and even the U.S. Chamber of Commerce—are asking the Supreme Court to do the same.
Here are 3 key facts from these friend-of-the court briefs.
1. Supreme Court precedent already defends donor privacy.
In ruling against TMLC, the U.S. Court of Appeals for the Ninth Circuit failed to apply the Supreme Court’s decision in NAACP v. Alabama ex rel. Patterson.
In the 1950’s Alabama tried to force the NAACP to turn over its membership lists, which could have been used by white supremacists to target members and force them to withdraw support. In NAACP v. Alabama, the Supreme Court ruled against the state, recognizing that releasing the identities of NAACP supporters was a constitutional violation that threatened their jobs and physical safety.
As New Civil Liberties Alliance warned in its brief supporting TMLC, the Supreme Court “should already be alarmed that the California Attorney General is so openly flouting the constitutional protections for privacy and associational freedom recognized by the Supreme Court in NAACP v. Alabama.”
2. The information California requests is likely to become public knowledge.
The strong possibility of California leaking donor information is too great a risk to bear. It’s especially dangerous for donors, employees, and clients of nonprofits like TMLC, who have faced intimidation, death threats, hate mail, boycotts, and even an assassination attempt from ideological opponents.
The Hispanic Leadership Fund wrote in its brief that, while intentional leaking by government officials is certainly possible, “data breaches and accidental disclosures pose perhaps a greater risk than intentional abuse. Before this information is disclosed, the government should have to prove it has a compelling need for the information. California cannot even come close to making that showing.”
The California Attorney General’s office hardly ever uses donor information for any purpose. It never launches investigations based on the information. But it does leak confidential records like a sieve. For example, the California Attorney General’s Office negligently posted nearly 1,800 IRS Form 990 Schedule Bs online, including one listing Planned Parenthood Affiliates of California’s supporters.
People on both sides of the aisle have reason to oppose the California Attorney General’s policy. And in today’s toxic cultural environment, it is dangerous to expose donors to the potential danger of having their names and addresses leaked online.
This brings us to the final point.
3. Forced disclosure is a threat to everyone and discourages charitable giving.
We’ve already seen what happens when public officials reveal donors with the intent of doing harm. It ruins careers and corrodes civil discourse. Everyone should be free to express their views and fund like-minded nonprofits without fear. But, if states like California continue to force organizations like TMLC to hand over their donors’ names and addresses, many will be afraid to express their views.
The Arizona-based think tank the Goldwater Institute, put it this way in its friend-of-the-court brief:
“Not only does the trend of forcing organizations to disclose confidential donor information chill the free speech rights of both these individuals and these organizations, but it also exacerbates the dangerously undemocratic tendency to short-circuit debate over the merits of public policy proposals, and to focus instead on personal animosities and personal demonization rather than persuasion.”
California has made it risky for people to donate to nonprofits engaged in public advocacy. Many donors won’t accept the risk, which means many nonprofit organizations will not survive. Worse, civil discourse between differing viewpoints could cease to exist.
The Supreme Court should take up TMLC’s case. After all, all Americans should be free to support causes they believe in without fear of harassment or intimidation. Thankfully, many organizations across the ideological spectrum feel the same way.
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