Amicus Briefs: Americans for Prosperity Foundation v. Xavier Becerra
AMICUS BRIEFS SUMMARY
The question presented in this case is whether the holding of NAACP v. Alabama ex rel. Patterson will be applied to modern state attorneys-general who compel disclosure of supporter lists of unpopular organizations without articulating a substantial state interest in obtaining the information. That is, does this hard-won, bedrock civil rights era precedent still protect the vital relationship between the freedom to associate and privacy in one’s associations?
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CASE: Americans for Prosperity Foundation v. Xavier Becerra
COURT: 9th Cir.; SCOTUS
DOCUMENT: No.16-55727 & 16-55786; 19-251, 19-255
COUNSEL FOR AMICUS CURIAE: Philip Hamburger, Mark Chenoweth, Michael P. Degrandis, Margaret A. Little
FILED: October 5, 2018; September 25, 2019
October 5, 2018 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of the Petition for Rehearsing En Banc
September 25, 2019 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of the Petitioners
October 5, 2018 | NCLA: The U.S. Ninth Circuit Court of Appeals Must Not Allow California’s Attorney General to Turn Back the Clock on Civil Rights in America
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.
September 25, 2019 | NCLA Asks U.S. Supreme Court to Uphold Landmark Civil Rights Precedent
Washington, D.C. – Today, the New Civil Liberties Alliance filed an amicus brief supporting two Writs of Certiorari to the U.S. Supreme Court in Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra. The Petitioners in these related cases are asking the Supreme Court to reverse the U.S. Court of Appeals for the Ninth Circuit and protect First Amendment rights to free speech, free association, and privacy in one’s associations. NCLA is supporting these writs, because it is concerned that the Ninth Circuit decision below eviscerates the Supreme Court’s landmark 1958 precedent, NAACP v. Alabama ex rel. Patterson.
John Patterson, the attorney-general of Alabama, had demanded membership lists from the local NAACP chapter. The Supreme Court ultimately ruled that the NAACP did not have to divulge its members to the attorney-general because having to do so could deter people from joining the organization. In a parallel bit of modern intimidation, California’s attorney general Xavier Becerra, without authority from any state law, has invented a new, binding obligation on charities that solicit donations in his state. A dictate from his office demands that 501(c)(3) charitable organizations turn over Form 990, Schedule B from their federal tax returns, which is the schedule that lists all of an organization’s largest supporters, to his office.
The attorney-general lacks the power to require groups to turn over their supporter lists when they solicit for their various charitable endeavors. In fact, enforcing his ad hoc rule violates both the California Constitution and the United States Constitution. The Supreme Court should be alarmed that the Attorney General is so openly flouting—and the Ninth Circuit is so blatantly ignoring—the constitutional protections for privacy and associational freedom recognized by the Supreme Court in NAACP v. Alabama ex rel. Patterson.
NCLA believes the Ninth Circuit’s opinion offers little protection to unpopular minorities and erodes constitutional protections for political minorities. It not only undermines the rights of speech and associational freedom; it also impinges on the religious freedom of supporters who want to give anonymously in accordance with the teachings of their religion. This Court should grant the Petitions because the Ninth Circuit misapplied this Court’s long-standing civil rights precedent.
NCLA released the following statements:
“All Americans should be alarmed by the California Attorney General’s barefaced flouting of the constitutional protections for privacy and associational freedom. The Supreme Court acknowledged these protections 60 years ago in NAACP v. Alabama—one of the most significant decisions of the civil rights era. The Court should make it abundantly clear that NAACP is still the definitive authority on First Amendment rights and confirm once and for all that there is a vital, constitutionally protected relationship between the freedom to associate and privacy in one’s associations.”—Michael DeGrandis, NCLA Senior Litigation Counsel
“If charitable supporters are concerned that a charity is defrauding them, they can certainly make the state attorney-general aware of it and tell him how much they contributed to the charity in question. But for the attorney-general to demand supporter lists from ALL charitable organizations—without any suspicion of fraud—is overkill. A drastic action like throwing out the landmark civil rights precedent of NAACP v. Alabama raises obvious questions about the attorney general’s real intentions.”
—Mark Chenoweth, NCLA Executive Director and General Counsel
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.