BLOGWhat the Ninth Circuit Got Wrong About this Donor Information Case

By Ryan Everson Posted on: | December 09, 2019

In March 2012, California officials contacted Thomas More Law Center (TMLC), a law firm that defends religious liberty, marriage and family, and the sanctity of human life. The state demanded TMLC hand over private information on its top donors to the California Attorney General’s Office. TMLC was perplexed. It had never been required to turn over this information before.

TMLC was very concerned for its donors. Those who gave to TMLC presumably didn’t think their names and addresses would be handed over to an agency that regularly made confidential information publicly available on the internet, including a list of Planned Parenthood’s donors.

TMLC knew that the First Amendment’s promise of “free association” was being compromised, so it filed a lawsuit against the California Attorney General. After a District Court judge ruled in favor of TMLC in April 2016, the California Attorney General appealed to the United States Court of Appeals for the Ninth Circuit, which reversed the ruling.

Alliance Defending Freedom (ADF) filed a cert petition to the U.S. Supreme Court on behalf of TMLC. ADF is hoping the high court will reverse the Ninth Circuit’s ruling, which puts donors to all kinds of charities with contentious views at risk of harassment, boycotts, death threats, or worse.

The Ninth Circuit’s decision is problematic and wrong, largely because it didn’t rely on the proper Supreme Court decisions or precedents.


The Ninth Circuit Should Have Used This Precedent

When the Ninth Circuit ruled against TMLC, it cited several Supreme Court cases, including Doe v. Reed and Davis v. FEC, that involved disclosing the donors to political campaigns or referendum efforts.

These decisions give the government substantial power to collect and publish donor information. But they all considered disclosures in the context of elections—as in donors supporting political candidates or ballot propositions. TMLC is a nonprofit that does not engage in elections or supporting politicians, so different rules apply.

The Ninth Circuit should have applied NAACP v. Alabama, which the Supreme Court decided in 1958. In that case, the high court ruled unanimously that Alabama could not force the National Association for the Advancement of Colored People to give its membership lists to the state because doing so would threaten their First Amendment right of association, and subject them to harassment.

So too for TMLC and its donor lists.

The Ninth Circuit tried to dismiss this key Civil Rights Era precedent by noting that “between 100 and 150 members declined to renew their NAACP membership, citing disclosure concerns,” while suggesting that TMLC had not proven enough of its donors would stop funding its advocacy. But this distinction has no basis in fact.


Donors Could Be Harassed or Intimidated

The California Attorney General currently forces nonprofits to hand over the names and addresses of those who donate $5,000 or more a year, or donors whose total contributions amount to over 2 percent of the nonprofit’s annual contributions. Because these contributions are so large, TMLC will be harmed if even a few people stop donating because of the state’s policy.

And this law doesn’t just affect California residents. It impacts donors across the country who give to any nonprofit that solicits donations in California—the nation’s most populous state.

Many donors would surely change how they give if they knew about California’s attempt to obtain their names and contact information—not to mention the California Attorney General’s atrocious mishandling of such information. In 2009, employees mislabeled nearly 1,800 confidential Schedule B tax documents as “public.” In a separate incident, all of the Registry of Charitable Trusts’ confidential documents were available on the internet and could be accessed simply by altering a single digit at the end of the URL.

Some government authorities—like the IRS—may have a consistent record of keeping donors’ confidential info secure. But the California Attorney General’s Office is certainly not one of them, and its poor practices are putting people’s jobs and lives at risk. That’s why ADF has asked the U.S. Supreme Court to hear the case.

The high court should recognize the flaws in the Ninth Circuit’s decision and rule in favor of TMLC.

In our current political climate, all people, regardless of their political views, should value donor privacy. Charities should not be hindered by burdensome government requirements that threaten the privacy and safety of their donors. And all Americans should be free to contribute to causes they are passionate about without fear of reprisal.

Ryan Everson

Communication Integrity Specialist

Ryan serves as the Communication Integrity Specialist at Alliance Defending Freedom.

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