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On Monday, the Supreme Court heard arguments in the key First Amendment case Americans for Prosperity v. Rodriguez, which centers on the State of California’s requirement that nonprofit organizations disclose their donor information to the state. Back in 2015, then-Attorney General Kamala Harris (D-Calif.) demanded that two conservative nonprofits, Americans for Prosperity (AFP) and the Thomas More Law Center (TMLC), hand over their donor lists. This demand threatened to reveal the identities of donors, potentially subjecting them to threats and harassment.
Legal representatives for AFP and TMLC said the Supreme Court justices’ questions and remarks suggested they are likely to strike down California’s requirement as an unconstitutional violation of the First Amendment.
“The justices appreciated very well that membership and donations to an organization are protected by a right to privacy in association, not just a right to associate,” Kathleen Sullivan, legal counsel for Americans for Prosperity Foundation, said on a press call after the oral arguments on Monday.
She noted that the justices cited many friend-of-the-court briefs written by ideological opponents of AFP and TMLC that nonetheless support these conservative organizations’ rights to donor anonymity. The American Civil Liberties Union (ACLU), the National Association for the Advancement of Colored People (NAACP), and the Human Rights Campaign (HRC) proved particularly noteworthy in this regard.
Many of the justices cited the key legal precedent NAACP v. Alabama (1958), in which the Supreme Court struck down Alabama’s order that the NAACP hand over a list of its members. Alabama issued this order during the era of segregation when the Ku Klux Klan held tremendous power in the state. The Court rightly upheld the NAACP’s organizational privacy.
“In particular, the justices seem to understand that what is not controversial today may be controversial tomorrow,” and that views that are now commonly-held were controversial in the past, Sullivan noted.
The justices also grasped the inherent “paradox” of requiring “an organization that is fearful that its donors may be chilled” to “come forward to the government and apply for an exemption.”
John Bursch, legal counsel at Alliance Defending Freedom (ADF) and a lawyer for TMLC, cited specific statements or questions that the justices made during oral arguments.
He noted that Justice Neil Gorsuch suggested that a ruling for California might allow the government to demand the addresses of donors that nonprofits use when they send out Christmas cards. Justice Brett Kavanaugh cited the fact that the ACLU, the NAACP, and HRC came forward in opposition to Kamala Harris’s donor disclosure mandate.
Justice Clarence Thomas “explained that the government used confidential census data information to locate Japanese citizens for internment,” Bursch noted. “Sotomayor noted that donors may not have faith in California” because the state had leaked the records of more than 1,700 donors.
When California’s lawyers argued that most non-profits would not object to providing donor lists, Justice Amy Coney Barrett said, “That’s not how the First Amendment works.” She noted that speech zones on college campuses may violate the First Amendment even if most students support speech zones.
While California claims the Kamala Harris donor disclosure mandate is necessary for fraud investigations, Bursch noted that “California has never used the schedule B information that it collects in advance” for its investigations, and it “never has a problem getting that information after the fact.”
California’s lawyers have claimed that it is advantageous for the state to have donor information at its fingertips. Bursch wryly noted, “It might also be advantageous to the government to allow officials to warrantlessly go into homes. That would certainly deter criminals from acting, but the violations [to Americans’ constitutional rights] are outrageously disproportionate.”
Brian Hauss, an attorney with the ACLU, joined Sullivan and Bursch on the call, even though the ACLU does not represent any of the parties in the case.
“Certainly, we don’t see eye to eye with the petitioners in this case on every issue,” Hauss began in a massive understatement. “However, First Amendment rights apply to everyone.”
Hauss noted that, since the information of 1,700 donors had been leaked from California before — including Planned Parenthood donors — “it is entirely reasonable for donors to fear that their private information will become public.”
“California cannot require charities to disclose the identities of their donors if the state cannot guarantee that that information will remain confidential,” the ACLU lawyer insisted. He warned that “this de facto public disclosure requirement… will ultimately diminish civil society.”
California’s lawyers argued that if the Supreme Court strikes down Kamala Harris’ donor disclosure requirement, the ruling may hamper the Internal Revenue Service’s (IRS) ability to enforce the disclosures mandated in campaign finance law.
Hauss tore apart this argument. The current case is “worlds apart from campaign finance,” he noted. “California has not shown that the state’s blanket disclosure … played a decisive role in the state’s investigations.”
“California has no interest in national donor lists,” Sullivan, the AFP lawyer, added. “This is not a case about tax collection, this is a case about charitable fraud.”
Sullivan noted that “the argument was very rich in distinctions between the IRS and California.” Oral arguments suggested that if the IRS were the party in question, it would win the argument on disclosure, while California seems likely to fail.
One of the parties in the case, the Thomas More Law Center (TMLC), faces accusations that it is an “anti-LGBT hate group” from the far-Left smear factory the Southern Poverty Law Center (SPLC). The SPLC puts TMLC on a “hate map” with chapters of the Ku Klux Klan.
As I documented in my book Making Hate Pay: The Corruption of the Southern Poverty Law Center, the SPLC routinely places mainstream conservative and Christian groups on the “hate group” list. In 2012, an attempted terrorist targeted the Family Research Council, using the SPLC “hate map.” A sexual harassment and racial discrimination scandal at the SPLC led former employees to confess that the SPLC exaggerates hate in order to bilk donors, a strategy arguably in keeping with its co-founder’s history.
PJ Media asked the panel whether the SPLC’s accusation against TMLC makes Kamala Harris’ donor disclosure mandate more dangerous, especially considering the Democrats’ reliance on the SPLC, the Democrats’ new domestic “war on terror” after the Capitol riot, and Michigan’s reliance on the SPLC “hate map” to target conservatives in launching a “hate crimes unit.”
Bursch, TMLC’s lawyer, condemned the SPLC’s accusations as utterly baseless and unfounded, but he did note that the SPLC’s smear against TMLC does highlight the threat of Kamala Harris’ donor disclosure mandate.
“Substantively, no government, no company should be using that discredited hate list or hate map,” Bursch said. “The SPLC routinely puts groups like Alliance Defending Freedom… on that list simply because they disagree with their views.”
“It does highlight the risk that the government will take that type of evidence” and weaponize it to chill speech. “That’s precisely what’s at issue in this case.”
Bursch noted that TMLC has faced routine threats from ideological opponents, including “intimidation, death threats, hate mail, boycotts, and even an assassination threat.”
“Certainly, the government should not be putting anyone on a watch list, particularly those who are here to safeguard our country’s freedoms,” Bursch concluded.