Supreme Court Decides Americans for Prosperity Foundation v. Bonta

On July 1, 2021, the U.S. Supreme Court decided Americans for Prosperity Foundation v. Bonta, holding that California’s requirement that all charities identify their major donors to the State facially violates the First Amendment.

California’s attorney general promulgated a regulation requiring charities renewing their registrations in California to file copies of certain federal tax forms — including Schedule B to IRS Form 990, which identifies the names and addresses of donors who have contributed more than $5,000 in a particular tax year. California is one of three states to impose such a requirement. California law requires that such information be kept confidential, but errors in the Attorney General’s office had previously led to thousands of charities’ donor lists being posted online. Although the Attorney General’s office rarely used Schedule Bs to audit or investigate charities, it preferred to collect them up front rather than on a case-by-case basis, both for reasons of convenience and to avoid the risk that a charity might respond to a specific investigative request by hiding or destroying evidence.

The Americans for Prosperity Foundation and the Thomas More Law Society are politically conservative charities that, along with their supporters, “have been subjected to bomb threats, protests, stalking, and physical violence.” For many years, they have declined to identify donors to the State as required by the regulation, fearful that disclosure would subject their donors to the risk of reprisals and make them less likely to contribute. Until 2010, California took no action in response, but in that year the Attorney General threatened to suspend the charities’ registrations and fine their officers and directors.

The charities responded by filing suit, alleging that the disclosure requirement violated their First Amendment right to free association. After trials, the district court agreed and enjoined the Attorney General from collecting the plaintiffs’ Schedule Bs, holding that the disclosure requirement was not narrowly tailored. The Ninth Circuit vacated that judgment, holding that the First Amendment does not require narrow tailoring in this context, that the disclosure requirement sufficiently serves California’s interests in investigative efficiency and effectiveness, and that the Attorney General had adopted remedial security measures that eliminated any significant burden on donors’ associational rights.

The Supreme Court reversed by a 6–3 vote and struck down the disclosure requirement. The Court first held that disclosure requirements of this kind must, at the least, pass “exacting scrutiny,” under which they must be “narrowly tailored” to further “a sufficiently important governmental interest.” Under that standard, the Court held “that California’s blanket demand for Schedule Bs is facially unconstitutional.” Although California “has an important interest in preventing wrongdoing by charitable organizations,” the Court held that a blanket disclosure requirement is not narrowly tailored to advance that interest, since Schedule Bs are rarely if ever used in investigating, regulating, or prosecuting charities. The Court concluded that California’s concerns about “tipoff” were unsubstantiated, and in any event could not justify “the State’s indiscriminate collection of Schedule Bs in all cases.” And the Court held that California’s interest “in ease of administration” did “not remotely reflect the seriousness of the actual burden that the demand for Schedule Bs imposes on donors’ associational rights,” and so also could not justify the requirement.

Since “every demand that might chill association therefore fails exacting scrutiny,” the Court found it appropriate to strike down the regulation on its face. The Court recognized that not every Schedule B request will chill association, but it concluded that many of them will, noting the broad array of amici from across the political spectrum who supported the petitioners’ position. Since the disclosure requirement “fails exacting scrutiny in a substantial number of its applications judged in relation to its plainly legitimate sweep,” the Court found it to be facially invalid.

Chief Justice Roberts authored the opinion of the Court, joined by Justices Alito, Gorsuch, Kavanaugh, and Barrett, and joined in part by Justice Thomas. Portions of Chief Justice Roberts’ opinion were for a plurality only, joined by Justices Kavanaugh and Barrett. Justice Thomas authored an opinion concurring in part and in the judgment. Justice Alito authored an opinion concurring in part and in the judgment, joined by Justice Gorsuch. Justice Sotomayor authored a dissent, joined by Justices Breyer and Kagan.