Washington, D.C. — The en banc Ninth Circuit Court of Appeals declined to rehear Americans for Prosperity Foundation v. Becerra late last week, dismissing one of the most important legacies of the Civil Rights Movement in the process.

In October 2018, the New Civil Liberties Alliance (NCLA) filed a brief as amicus curiae in AFPF v. Becerra, asking the entire Ninth Circuit to rehear the case to vindicate civil liberties protected by the First Amendment, including the freedom of association. The Ninth Circuit denied rehearing, though the dissenting judges agreed with much of NCLA’s argument.

NCLA’s brief asserted that the California Attorney General’s demand for disclosure of nonprofit donor lists is unconstitutional under the controlling precedent set by the Supreme Court’s unanimous 1958 NAACP v. Alabama decision. That is the famous case in which the Supreme Court rejected the Attorney General of Alabama’s demand for the NAACP’s membership list.

NCLA argued that “the NAACP Court applied a straightforward and rigorous test that simply asks whether an organization’s members have previously encountered ‘public hostility’ when their membership has been revealed . . . . If so, then the state must show that disclosure has a ‘substantial bearing’ on the state’s asserted interest in obtaining the list of names.”

This heightened scrutiny for compelled membership disclosure is essential to protecting liberty because, as the NAACP Court said, the “[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

The AFPF dissenters took up this theme, explaining that “[c]ontroversial groups often face threats, public hostility, and economic reprisals if the government compels the organization to disclose its member and contributor list.” Thus, “[t]he Supreme Court has long recognized this danger and held that such compelled disclosures can violate the First Amendment right to association.” The dissent called for application of the Supreme Court’s “clear [NAACP] test for cases like this one.”

Instead of applying NAACP’s heightened scrutiny, the Ninth Circuit panel denied rehearing because it incorrectly applied a lesser standard. In so doing, the dissent concluded that the panel’s “watered-down standard” has the practical effect of allowing the government to “put the First Amendment associational rights of members and contributors at risk for a list of names it does not need, so long as it promises to do better in the future to avoid public disclosure of the names.”

“This decision is a travesty of justice and marks a dark day for civil rights in modern America. Attorney General Becerra—just like the Attorney General of Alabama in the 1950s—has no legitimate need for the donor lists of every nonprofit organization. He is creating a problem, not solving one. By condoning Becerra’s fishing expedition, the Ninth Circuit has turned back the clock to the pre-civil rights era when dissident organizations labored at the mercy and sufferance of hostile state attorneys-general. This poorly reasoned decision has set the standard for protecting Americans’ freedom of association so low that any state attorney general can simply offer self-serving assertions about the needs of law enforcement to nullify citizens’ demonstrable concerns regarding the threats and reprisals they face for expressing their unpopular beliefs.” – Mark Chenoweth, NCLA Executive Director and General Counsel

ABOUT NCLA 

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 unchecked 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.