Washington, D.C. — The New Civil Liberties Alliance (NCLA) today filed an amicus curiae brief asking the entire U.S. Court of Appeals for the Ninth Circuit to rehear the recent decision in Americans for Prosperity Foundation v. Becerra concerning the privacy of donors to nonprofit organizations.
Earlier this year a three-judge panel of the court unanimously reversed a 2016 district court order that had permanently enjoined the state’s rules requiring charities that solicit contributions in California to file their donor lists with the state attorney general. The panel held that such disclosure is in the state’s interest to “police” charitable fraud.
NCLA believes instead that a unanimous U.S. Supreme Court got this issue right in the landmark 1958 civil rights-era case NAACP v. Alabama ex rel. Patterson. That is the case that famously prevented the NAACP from having to turn over its membership lists to the state attorney general of Alabama.
So too, here, nonprofits that solicit in California should not have to turn over their membership or donor lists on the say-so of the state attorney-general. Such suspicionless disclosures fly in the face of the fundamental rights to associate privately, conduct lawful activities freely, and contribute to organizations anonymously under the First Amendment to the Constitution that NAACP v. Alabama recognized.
In addition to NCLA’s concern about the constitutional rights at stake in this case, the organization is also troubled that the state attorney-general has invented a new, binding obligation on charities without any legislative action. The panel decision of the Ninth Circuit is a misguided assault on philanthropic freedom that could have negative widespread consequences nationwide.
NCLA Executive Director, Mark Chenoweth:
“The U.S. Supreme Court has long recognized that anonymity can be indispensable to preservation of freedom of association, particularly where a group espouses unpopular beliefs. If the Ninth Circuit lets a state attorney-general ‘insist on a list’ and seek disclosure of members or donors via administrative fiat, it will turn back the clock to the pre-civil rights era when dissident organizations labored at the mercy and sufferance of hostile state attorneys-general.”
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.