Americans for Prosperity Foundation v. Bonta, 594 U.S. ___ (2021)
Charitable organizations soliciting funds in California generally must register with the Attorney General and renew their registrations annually by filing copies of their IRS Form 990, on which tax-exempt organizations provide the names and addresses of their major donors. Two tax-exempt charities that solicit contributions in California renewed their registrations and filed redacted Form 990s to preserve their donors’ anonymity. The Attorney General threatened the charities with the suspension of their registrations and fines. The charities alleged that the compelled disclosure requirement violated their First Amendment rights and the rights of their donors. The Ninth Circuit ruled in favor of the Attorney General.
The Supreme Court reversed. California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest. Compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as other forms of governmental action. Exacting scrutiny requires that a government-mandated disclosure regime be narrowly tailored to the government’s asserted interest, even if it is not the least restrictive means of achieving that end.
A dramatic mismatch exists between the Attorney General's asserted interest and the disclosure regime. While California’s interests in preventing charitable fraud and self-dealing are important, the enormous amount of sensitive information collected through the disclosures does not form an integral part of California’s fraud detection efforts. California does not rely on those disclosures to initiate investigations. There is no evidence that alternative means of obtaining the information, such as a subpoena or audit letter, are inefficient and ineffective by comparison. Mere administrative convenience does not “reflect the seriousness of the actual burden” that the disclosure requirement imposes on donors’ association rights. It does not make a difference if there is no public disclosure, if some donors do not mind having their identities revealed, or if the relevant donor information is already disclosed to the IRS.
California's requirement that charities disclose the names and addresses of major donors is facially invalid as burdening donors’ First Amendment rights and not narrowly tailored to an important government interest.
SUPREME COURT OF THE UNITED STATES
Syllabus
AMERICANS FOR PROSPERITY FOUNDATION v. BONTA, ATTORNEY GENERAL OF CALIFORNIA
certiorari to the united states court of appeals for the ninth circuit
No. 19–251. Argued April 26, 2021—Decided July 1, 2021[1]
Charitable organizations soliciting funds in California must disclose the identities of their major donors to the state Attorney General’s Office. Charities generally must register with the Attorney General and renew their registrations annually. The Attorney General requires charities renewing their registrations to file copies of their Internal Revenue Service Form 990, a form on which tax-exempt organizations provide information about their mission, leadership, and finances. Schedule B to Form 990—the document that gives rise to the present dispute—requires organizations to disclose the names and addresses of their major donors. The State contends that having this information readily available furthers its interest in policing misconduct by charities.
The petitioners are two tax-exempt charities that solicit contributions in California. Since 2001, each petitioner has renewed its registration and has filed a copy of its Form 990 with the Attorney General, as required by Cal. Code Regs., tit. 11, §301. To preserve their donors’ anonymity, however, the petitioners have declined to file unredacted Schedule Bs, and they had until recently faced no consequences for noncompliance. In 2010, the State increased its enforcement of charities’ Schedule B disclosure obligations, and the Attorney General ultimately threatened the petitioners with suspension of their registrations and fines for noncompliance. The petitioners each responded by filing suit in District Court, alleging that the compelled disclosure requirement violated their First Amendment rights and the rights of their donors. Disclosure of their Schedule Bs, the petitioners alleged, would make their donors less likely to contribute and would subject them to the risk of reprisals. Both organizations challenged the constitutionality of the disclosure requirement on its face and as applied to them. In each case, the District Court granted preliminary injunctive relief prohibiting the Attorney General from collecting the petitioners’ Schedule B information. The Ninth Circuit vacated and remanded, reasoning that Circuit precedent required rejection of the petitioners’ facial challenge. Reviewing the petitioners’ as-applied claims under an “exacting scrutiny” standard, the panel narrowed the District Court’s injunction, and it allowed the Attorney General to collect the petitioners’ Schedule Bs so long as they were not publicly disclosed. On remand, the District Court held bench trials in both cases, after which it entered judgment for the petitioners and permanently enjoined the Attorney General from collecting their Schedule Bs. Applying exacting scrutiny, the District Court held that disclosure of Schedule Bs was not narrowly tailored to the State’s interest in investigating charitable misconduct. The court found little evidence that the Attorney General’s investigators relied on Schedule Bs to detect charitable fraud, and it determined that the disclosure regime burdened the associational rights of donors. The District Court also found that California was unable to ensure the confidentiality of donors’ information. The Ninth Circuit again vacated the District Court’s injunctions, and this time reversed the judgments and remanded for entry of judgment in favor of the Attorney General. The Ninth Circuit held that the District Court had erred by imposing a narrow tailoring requirement. And it reasoned that the disclosure regime satisfied exacting scrutiny because the up-front collection of charities’ Schedule Bs promoted investigative efficiency and effectiveness. The panel also found that the disclosure of Schedule Bs would not meaningfully burden donors’ associational rights. The Ninth Circuit denied rehearing en banc, over a dissent.
Held: The judgment is reversed, and the cases are remanded.
903 F.3d 1000, reversed and remanded.
The Chief Justice delivered the opinion of the Court with respect to all but Part II–B–1, concluding that California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest. Pp. 6–7, 9–19.
(a) The Court reviews the petitioners’ First Amendment challenge to California’s compelled disclosure requirement with the understanding that “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462. NAACP v. Alabama did not phrase in precise terms the standard of review that applies to First Amendment challenges to compelled disclosure. In Buckley v. Valeo, 424 U.S. 1, 64 (per curiam), the Court articulated an “exacting scrutiny” standard, which requires “a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” Doe v. Reed, 561 U.S. 186, 196. The parties dispute whether exacting scrutiny applies in these cases, and if so, whether that test imposes a least restrictive means requirement similar to the one imposed by strict scrutiny.
The Court concludes that exacting scrutiny requires that a government-mandated disclosure regime be narrowly tailored to the government’s asserted interest, even if it is not the least restrictive means of achieving that end. The need for narrow tailoring was set forth early in the Court’s compelled disclosure cases. In Shelton v. Tucker, 364 U.S. 479, the Court considered an Arkansas statute that required teachers to disclose every organization to which they belonged or contributed. The Court acknowledged the importance of “the right of a State to investigate the competence and fitness of those whom it hires to teach in its schools,” and it distinguished prior decisions that had found “no substantially relevant correlation between the governmental interest asserted and the State’s effort to compel disclosure.” Id., at 485. But the Court invalidated the Arkansas statute because even a “legitimate and substantial” governmental interest “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Id., at 488. Shelton stands for the proposition that a substantial relation to an important interest is not enough to save a disclosure regime that is insufficiently tailored. Where exacting scrutiny applies, the challenged requirement must be narrowly tailored to the interest it promotes. Pp. 6–7, 9–11.
(b) California’s blanket demand that all charities disclose Schedule Bs to the Attorney General is facially unconstitutional. Pp. 12–19.
(1) The Ninth Circuit did not impose a narrow tailoring requirement to the relationship between the Attorney General’s demand for Schedule Bs and the identified governmental interest. That was error under the Court’s precedents. And properly applied, the narrow tailoring requirement is not satisfied by California’s disclosure regime. In fact, a dramatic mismatch exists between the interest the Attorney General seeks to promote and the disclosure regime that he has implemented.
The Court does not doubt the importance of California’s interest in preventing charitable fraud and self-dealing. But the enormous amount of sensitive information collected through Schedule Bs does not form an integral part of California’s fraud detection efforts. California does not rely on Schedule Bs to initiate investigations, and evidence at trial did not support the State’s concern that alternative means of obtaining Schedule B information—such as a subpoena or audit letter—are inefficient and ineffective compared to up-front collection. In reality, California’s interest is less in investigating fraud and more in ease of administration. But “the prime objective of the First Amendment is not efficiency.” McCullen v. Coakley, 573 U.S. 464, 495. Mere administrative convenience does not remotely “reflect the seriousness of the actual burden” that the demand for Schedule Bs imposes on donors’ association rights. Reed, 561 U. S., at 196 (internal quotation marks omitted). Pp. 12–15.
(2) In the First Amendment context, the Court has recognized a “type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (internal quotation marks omitted). The Attorney General’s disclosure requirement is plainly overbroad under that standard. The regulation lacks any tailoring to the State’s investigative goals, and the State’s interest in administrative convenience is weak. As a result, every demand that might deter association “creates an unnecessary risk of chilling” in violation of the First Amendment. Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 968. It does not make a difference in these cases if there is no disclosure to the public, see Shelton, 364 U. S., at 486, if some donors do not mind having their identities revealed, or if the relevant donor information is already disclosed to the IRS as a condition of federal tax-exempt status. California’s disclosure requirement imposes a widespread burden on donors’ associational rights, and this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important. Pp. 15–19.
Roberts, C. J., delivered the opinion of the Court, except as to Part II–B–1. Kavanaugh and Barrett, JJ., joined that opinion in full, Alito and Gorsuch, JJ., joined except as to Part II–B–1, and Thomas, J., joined except as to Parts II–B–1 and III–B. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined. Sotomayor, J., filed a dissenting opinion, in which Breyer and Kagan, JJ., joined.
JUDGMENT ISSUED. |
Judgment REVERSED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, except as to Part II– B–1. Kavanaugh and Barrett, JJ., joined that opinion in full, Alito and Gorsuch, JJ., joined except as to Part II–B–1, and Thomas, J., joined except as to Parts II–B–1 and III–B. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined. Sotomayor, J., filed a dissenting opinion, in which Breyer and Kagan, JJ., joined. VIDED. |
Argued. For petitioners: Derek L. Shaffer, Washington, D. C. For United States, as amicus curiae: Elizabeth B. Prelogar, Acting Solicitor General, Department of Justice, Washington, D. C. For respondent: Aimee A. Feinberg, Deputy Solicitor General, Sacramento, Cal. VIDED. |
Motion of Thomas More Law Center to file a reply brief out of time GRANTED. |
Reply of Thomas More Law Center submitted. |
Motion to file the reply brief out of time filed by petitioner Thomas More Law Center (in 19-255). (Distributed) |
Motion to file the reply brief out of time filed by petitioner Thomas More Law Center (in 19-255). (Distributed) |
to file reply brief out of time of Thomas More Law Center submitted. |
Reply of petitioner Americans for Prosperity Foundation filed (in 19-251). (Distributed) |
Reply of Americans for Prosperity Foundation submitted. |
Amicus brief of Campaign Legal Center, et al. submitted. |
Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. |
Motion of petitioners for divided argument is DENIED; motion of petitioners for enlargement of time for oral argument is GRANTED, and the time is allotted as follows: 30 minutes for petitioners, 10 minutes for the Acting Solicitor General, and 30 minutes for respondent. |
Brief amicus curiae of National Council of Nonprofits filed. (Distributed) |
Brief amici curiae of Legal Historians filed. VIDED. (Distributed) |
Brief amici curiae of U.S. Senators filed. (Distributed) |
Amicus brief of Legal Historians not accepted for filing. (April 06, 2021 - Corrected brief submitted.) |
Brief amicus curiae of CharityWatch filed. VIDED. (Distributed) |
Brief amici curiae of Scholars of the Law of Non-Profit Organizations filed. VIDED. (Distributed) |
Brief amici curiae of Public Citizen and Public Citizen Foundation filed. VIDED. (Distributed) |
Brief amici curiae of States of New York, et al. filed. VIDED. (Distributed) |
Amicus brief of Campaign Legal Center, et al. not accepted for filing. (April 19, 2021) |
Amicus brief of Campaign Legal Center, et al. not accepted for filing. (Corrected brief submitted) |
Brief amici curiae of Campaign Legal Center, et al. filed. VIDED. (April 17, 2021). (Distributed) |
Amicus brief of Campaign Legal Center, et al. submitted. |
Brief amici curiae of U.S. Senators filed (in 19-251). (Distributed) |
Brief amicus curiae of National Council of Nonprofits filed. VIDED. (Distributed) |
CIRCULATED |
Brief amicus curiae of The California Association of Nonprofits filed. VIDED. (Distributed) |
Brief of Matthew Rodriquez, Acting Attorney General of California not accepted for filing. (Corrected and reprinted brief submitted - March 25, 2021) |
Brief of respondent Matthew Rodriquez, Acting Attorney General of California filed (Mar. 25, 2021). VIDED. |
Record requested. |
The record from the U.S.C.A. 9th Circuit is electronic and located on Pacer. |
Application (20A148) granted by Justice Kagan to file respondent's consolidated brief on the merits in excess of the word limit. The brief may not exceed 15,000 words. VIDED. |
Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. VIDED. |
SET FOR ARGUMENT on Monday, April 26, 2021. VIDED. |
Motion for divided argument and enlargement of time for oral argument filed by petitioners. VIDED. |
Application (20A148) to file respondent's consolidated brief on the merits in excess of the word limit, submitted to Justice Kagan. VIDED. |
Brief amici curiae of Hispanic Leadership Fund, et al. filed. VIDED. |
Brief amicus curiae of New Civil Liberties Alliance filed. VIDED. |
Brief amicus curiae of Proposition 8 Legal Defense Fund filed. VIDED. |
Brief amicus curiae of American Center for Law and Justice filed. VIDED. |
Brief amici curiae of Association of National Advertisers (ANA) and the ANA Non-Profit Federation filed. VIDED. |
Brief amici curiae of Free Speech Coalition, et al. filed. VIDED. |
Brief amici curiae of American Civil Liberties Union, Inc., et al. filed. VIDED. |
Brief amicus curiae of Liberty Justice Center filed. VIDED. |
Brief amici curiae of The Chamber of Commerce of the United States of America, et al. filed. VIDED. |
Brief amicus curiae of The Legacy Foundation filed. VIDED. |
Amicus brief of The Electronic Frontier Foundation, et al. not accepted for filing. (March 02, 2021) (efiling will be resubmitted) |
Brief amicus curiae of Philanthropy Roundtable filed. VIDED. |
Amicus brief of Philanthropy Roundtable, Independent Women's Forum, and People United for Privacy Foundation not accepted for filing. (March 02, 2021) (efiling will be corrected with proper filing party) |
Brief amicus curiae of Center for Equal Opportunity filed. VIDED. |
Brief amicus curiae of Citizen Power Initiatives for China filed. VIDED. |
Brief amicus curiae of The Floyd Abrams Institute for Freedom of Expression at Yale Law School in support of neither party filed. VIDED. |
Brief amicus curiae of The American Legislative Exchange Council filed. VIDED. |
Brief amici curiae of Judicial Watch, Inc., et al. filed. VIDED. |
Brief amicus curiae of Institute for Free Speech filed. VIDED. |
Brief amicus curiae of Independent Women's Law Center filed. VIDED. |
Brief amici curiae of The National Association of Manufacturers, et al. filed. VIDED. |
Brief amicus curiae of Institute for Justice filed. VIDED. |
Brief amicus curiae of Senator Mitch McConnell filed. VIDED. |
Brief amici curiae of Cato Institute, et al. filed. |
Amicus brief of Philanthropy Roundtable, Independent Women's Forum, and People United for Privacy Foundation not accepted for filing. (March 02, 2021 - corrected brief to be submitted.) |
Brief amici curiae of The Buckeye Institute, et al. filed. VIDED. |
Brief amicus curiae of Freedom Foundation filed. |
Brief amici curiae of Citizens United and Citizens United Foundation filed. VIDED. |
Brief amici curiae of The Electronic Frontier Foundation, et al. filed. VIDED. |
Brief amicus curiae of Thomas More Society filed. VIDED |
Brief amicus curiae of China Aid Association filed. VIDED |
Brief amici curiae of The Nonprofit Alliance Foundation, et al. filed. VIDED. |
Brief amici curiae of State of Arizona, et al. filed. VIDED. |
Brief amicus curiae of The Becket Fund for Religious Liberty filed. VIDED. |
Brief amicus curiae of United States supporting vacatur and remand filed. VIDED. |
Brief amici curiae of Congressman John Sarbanes and Democracy 21 in support of neither party filed. VIDED. |
Brief amici curiae of Protect The 1st and Pacific Research Institute filed. VIDED. |
Brief amici curiae of National Taxpayers Union Foundation, et al. filed. VIDED. |
Brief amicus curiae of Randy Elf filed. VIDED. |
Brief amicus curiae of American Target Advertising, Inc. filed. VIDED. |
Brief amici curiae of Public Interest Legal Foundation and Foundation for Michigan Freedom filed. VIDED. |
Brief amici curiae of Concerned Women for America, et al. filed. VIDED. |
Brief amicus curiae of Council on American-Islamic Relations filed (in 19-251). |
Brief amici curiae of Pacific Legal Foundation, Southeastern Legal Foundation, and Center for Constitutional Jurisprudence filed. VIDED. |
Brief amicus curiae of Goldwater Institute and Rio Grande Foundation filed. VIDED. |
Brief amicus curiae of James Madison Center for Free Speech filed. VIDED |
Brief of petitioner Thomas More Law Center filed (in 19-255). |
Joint appendix filed (in 19-255). |
Brief of petitioner Americans for Prosperity Foundation filed (in 19-251). |
Joint appendix filed (in 19-251). (Statement of costs filed) |
Joint appendix filed (in 19-255). (Statement of costs filed.) |
Blanket Consent filed by Petitioner, Americans for Prosperity Foundation |
Blanket Consent filed by Petitioner, Thomas More Law Center (in 19-255). |
Petition GRANTED. The petition for a writ of certiorari in No. 19-255 is granted. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED. |
Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 19-251. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 19-251. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.” |
DISTRIBUTED for Conference of 1/8/2021. |
Supplemental brief of respondent Xavier Becerra, in his official capacity as the Attorney General of California filed. VIDED. (Distributed) |
Brief amicus curiae of United States filed. VIDED. |
The Solicitor General is invited to file a brief in this case expressing the views of the United States. |
DISTRIBUTED for Conference of 2/21/2020. |
DISTRIBUTED for Conference of 1/24/2020. |
DISTRIBUTED for Conference of 1/17/2020. |
DISTRIBUTED for Conference of 1/10/2020. |
Reply of petitioner Americans for Prosperity Foundation filed. |
Brief of respondent Xavier Becerra, in his official capacity as the Attorney General of California in opposition filed. VIDED. |
Motion to extend the time to file a response is granted and the time is further extended to and including November 25, 2019. |
Motion to extend the time to file a response from October 25, 2019 to November 25, 2019, submitted to The Clerk. |
Brief amicus curiae of The National Association of Manufacturers filed. |
Brief amicus curiae of New Civil Liberties Alliance filed. VIDED. |
Brief amici curiae of Public Interest Legal Foundation, Center for Constitutional Jurisprudence, Foundation for Michigan Freedom and Texas Public Policy Foundation filed. VIDED. |
Brief amicus curiae of Hispanic Leadership Fund filed. VIDED. |
Brief amici curiae of Pacific Research Institute, Project for Privacy and Surveillance Accountability filed. |
Brief amicus curiae of American Center for Law and Justice filed. VIDED. |
Brief amici curiae of Cato Institute, et al. filed. VIDED. |
Brief amicus curiae of Proposition 8 Legal Defense Fund filed. VIDED |
Brief amicus curiae of The Buckeye Institute filed. |
Brief amici curiae of Philanthropy Roundtable, et al. filed. VIDED. |
Brief amicus curiae of Judicial Watch, Inc. filed. |
Brief amicus curiae of American Target Advertising, Inc. filed. |
Brief amicus curiae of Institute for Free Speech filed. VIDED. |
Brief amici curiae of Free Speech Coalition, et al. filed. VIDED. |
Brief amici curiae of States of Arizona et al. filed. |
Brief amicus curiae of Public Integrity Alliance filed. |
Brief amici curiae of 24 Family Policy Organizations filed. VIDED. |
Brief amici curiae of The Chamber of Commerce of the United States of America, et al. filed. VIDED. |
Brief amicus curiae of Council on American-Islamic Relations filed. |
Brief amicus curiae of Pacific Legal Foundation filed. |
Brief amicus curiae of Institute for Justice filed. VIDED. |
Brief amicus curiae of Liberty Justice Center filed. |
Motion to extend the time to file a response is granted and the time is extended to and including October 25, 2019. |
Motion to extend the time to file a response from September 25, 2019 to October 25, 2019, submitted to The Clerk. |
Blanket Consent filed by Petitioner, Americans for Prosperity Foundation. |
Petition for a writ of certiorari filed. (Response due September 25, 2019) |
Application (18A1224) granted by Justice Kagan extending the time to file until August 26, 2019. |
Application (18A1224) to extend the time to file a petition for a writ of certiorari from June 27, 2019 to August 26, 2019, submitted to Justice Kagan. |