Policy Report

Preserving Donor Privacy in North Carolina

posted on in Law & Regulation

Executive Summary

Donor privacy protects our expressive rights, especially with regard to matters of public policy. Unfortunately, entrenched political interests have often successfully undermined that protection by forcing policy and advocacy organizations to disclose the names of their supporters. To preserve our right to free expression, we must resist these attacks on donor privacy by supporting organizations that are challenging donor disclosure demands in court, by opposing laws and administrative orders that require donor disclosure, and by encouraging the enactment of laws that affirmatively protect donor privacy.

Introduction

Freedom of speech, freedom of the press, the right to assemble, and the right to petition the government for a redress of grievances: these are vitally important, fundamental rights that protect our ability to express ourselves freely, especially on matters of public policy. All four are essential for the operation of our republican system of government and for the survival of our free society. And all four are guaranteed by the U.S. Constitution and by the constitutions of most states, including North Carolina.1

Regulations that force nonprofits to disclose the names of their donors make people afraid to exercise these rights. That is why entrenched political interests favor such regulations, and that is why the rest of us must vigorously oppose them.

Attacks on Donor Privacy Are Attacks on Free Expression

We can, of course, exercise our expressive rights in person by speaking in public, by publishing our printed thoughts on paper or online, by attending meetings with other like-minded people, and by writing to and calling on our elected representatives. For most of us, however, it is far more efficient and effective to join with others in support of nonprofit organizations that speak and publish and advocate on our behalf. The staff of such organizations can devote more time and expertise to expressing our views than we can, and, if a sufficient number of like-minded people are willing to join in their support, such organizations can express our views more forcefully and broadcast them more widely than we can possibly do on our own.

Unfortunately, in recent years, elected officials and advocacy organizations in many states have been imposing donor disclosure requirements that discourage people from expressing themselves in this highly effective way. There are many reasons why donors may wish to remain anonymous. The threat of disclosure will, to some extent, discourage donations to every kind of nonprofit organization. However, when it comes to public policy and advocacy organizations, the impact of donor disclosure requirements varies greatly depending on whether the organization represents donors who espouse conventional or alternative views on contentious issues. Donors who espouse conventional views have little to fear from disclosure, and most of them will continue to support organizations that help them express those views even if they lose the ability to do so anonymously. For donors who espouse alternative views, on the other hand, the effect of disclosure can be devastating. This includes job losses and death threats for private individuals, boycotts and protests for business owners, and doxxing and online hate-storms for members of both groups.2 Rather than risk that kind of retaliation, many people will stop contributing to organizations that help them express their alternative views, even though it means giving up their right to express themselves in the most efficient and effective way.

This differential impact means that even donor disclosure requirements that appear neutral on their face can be deployed effectively to suppress the expression of unpopular views. Entrenched political interests know this, and there is a long and disreputable history of using donor disclosure as a weapon against political and ideological opponents.

NAACP v. Alabama

In the 1950s, the National Association for the Advancement of Colored People (NAACP) was beginning to win major victories in its long struggle to overturn the system of legally enforced racial discrimination in the American South. In the middle of the decade, however, the Democratic establishment in many Southern states began to deploy a new and effective weapon against the civil rights organization: donor disclosure. From Virginia to Florida and from North Carolina to Texas, Democrat-controlled legislatures and Democratic state attorneys began demanding that the NAACP turn over the names of its supporters as a condition for operating within their states.3 The legislators and attorneys generally assumed that many supporters would withdraw their support for the organization if doing so meant risking reprisals from segregationists, and they were right. In just two years, from 1955 to 1957, NAACP membership declined in Southern states by more than 50 percent.4

In Alabama, the NAACP affiliate fought back. It challenged the state’s disclosure requirement in federal court and, in 1958, won a decisive victory. In a unanimous opinion written by Justice John M. Harlan II, the Supreme Court found that Alabama’s disclosure law violated the U.S. Constitution:

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.5

It was a clear and forceful opinion as far as it went, and it had the effect of discouraging attacks on donor privacy for many years. Unfortunately, it didn’t go far enough.

NAACP v. Alabama’s Limited Effect

Privacy advocates frequently cite NAACP v. Alabama in support of the proposition that laws and administrative orders that force nonprofits to disclose the names of their donors violate the U.S. Constitution. However, much as we may wish that were true, the opinion itself provides only a very limited defense of donor privacy. As we will see in Part 4 of this report, the ruling has done very little to deter the political establishment’s current use of donor disclosure as a weapon against its political and ideological opponents.

An As-Applied, Rather than a Facial Holding

Perhaps the most important reason why NAACP v. Alabama has done so little to deter attacks on donor privacy is the fact that it was an “as-applied” rather than a “facial” finding. If the court had found that Alabama’s disclosure demand was unconstitutional on its face, it would have meant that the law, and all similar laws, were unconstitutional as applied to anyone, regardless of specific circumstances. Instead, the court emphasized the importance of various specific facts about the situation in which the NAACP and its supporters found themselves in Alabama in the 1950s, including that those supporters had already experienced actual harassment and intimidation.6 Even more importantly, the court explicitly distinguished that situation from the situations in other cases — cases in which the court had previously upheld donor disclosure demands.7 All of that left the door open for courts to uphold future disclosure demands as long as the situation facing the plaintiffs in those cases was materially different from the situation facing the NAACP and its supporters in 1958.

A Holding Based on an Unenumerated Right Rather than on Enumerated Rights

NAACP v. Alabama’s deterrent effect may also have been limited by the fact that it said very little about the extent to which Alabama’s donor disclosure demands made the NAACP’s supporters afraid to exercise rights explicitly guaranteed by the text of the First Amendment: freedom of speech, freedom of the press, the right to assemble, and the right to petition the government. Instead, it focused much more on the extent to which those demands violated a right that is never mentioned in the First Amendment or anywhere else in the Constitution — the right to “association.” The court said:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized. … It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. …8

Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. … [W]e think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.9

It is certainly true that the court had previously found that a right of association is somehow implicit in the 14th Amendment’s protection of due process. Given that finding, it is easy to see why the court might have been pleased to have an opportunity to vindicate that recently discovered right. Nevertheless, the fact that the court focused on this unenumerated right, rather than on rights specifically listed in the Constitution, may account for the court’s lack of clarity regarding a vitally important issue: the standard of review.

An Uncertain Standard of Review

There is nothing in the U.S. Constitution to suggest a hierarchy of rights. Over the last 80 years, however, the Supreme Court has developed a “tiers of scrutiny” doctrine under which some rights are protected more zealously than others.10

At the lowest level are property rights and rights pertaining to commercial transactions. According to tiers of scrutiny doctrine, a law or administrative order that infringes on those rights “is not to be pronounced unconstitutional unless … it is of such a character as to preclude the assumption that it rests upon some rational basis.”11

At the top of the hierarchy are a small number of rights the Supreme Court has singled out for special protection, including some (but for some reason not all) of the rights specifically protected by “the first ten amendments and those which are deemed equally specific when held to be embraced within the Fourteenth.”12 A law or administrative order that infringes on one or more of these rights is subject to “strict scrutiny,” which means it will only be allowed to stand if it is “narrowly tailored to serve a compelling state interest.”13 Also subject to strict scrutiny are: “[L]egislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” and “statutes directed at … discrete and insular minorities.”14

Over the years, “strict” scrutiny and “rational basis” scrutiny have been supplemented with various intermediate levels of scrutiny, including one called “exacting” scrutiny that the court has applied in cases involving campaign finance laws. Generally speaking, to withstand intermediate scrutiny, the government must show that the law or administrative order furthers an important government interest by means that are substantially related to that interest.15

There were many reasons why the Supreme Court could have applied strict scrutiny in NAACP v. Alabama. As noted previously, the Alabama attorney general’s demand for the names of the NAACP’s supporters clearly restricted the supporters’ ability to exercise several enumerated First Amendment rights for which strict scrutiny protection was usually deemed appropriate, e.g., freedom of speech, freedom of the press, and the right to petition the government. The demand for donors names also clearly restricted the political processes which ordinarily can be expected to bring about repeal of undesirable legislation. Moreover, at one point in the opinion, the court even implied that the right of association might merit the protection afforded by strict scrutiny. The court said, “[S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”16 However, when it came time to balance Alabama’s justification for demanding the list of donors against the NAACP’s supporters’ right to association, the court did not apply the strict scrutiny test, which requires a compelling governmental reason and narrow tailoring. Instead, it said, “Whether there was ‘justification’ in this instance turns solely on the substantiality of Alabama’s interest in obtaining the membership lists,”17 which implies that it was applying an intermediate level of scrutiny instead.

The fact that the Supreme Court was ambivalent about the standard of review it was applying in NAACP v. Alabama, and the fact that it decided the case on an as-applied rather than a facial basis, have provided federal courts with a good deal of flexibility in dealing with subsequent donor disclosure cases. They have found it easy to distinguish the situation faced by plaintiffs in more recent cases from the situation of the NAACP and its supporters in Alabama in 1958. And, when they have undertaken the inevitably subjective task of balancing the government’s professed reasons for wanting to know the names of nonprofits’ donors against the donors’ desire for and right to privacy, they have found it easy to conclude that the former outweighs the latter.

Citizens United v. Schneiderman

In New York and California, the state attorneys general opened the attack on donor privacy by promulgating rules requiring nonprofits to submit copies of Internal Revenue Service Form 990, including Schedule B, which lists donors’ names and addresses. The IRS collects this information for comparison with charitable deductions claimed by taxpayers, and it keeps the information strictly confidential.

Knowing that many of their donors prefer to contribute anonymously, nonprofits in both states initially complied with the new rules by submitting Schedule Bs with the names and addresses of their donors redacted. In 2013, however, New York’s Attorney General, Eric Schneiderman, began serving deficiency notices on nonprofits that submitted redacted Schedule Bs. The following year, California Attorney General Kamala Harris started to do the same thing.

In New York, two affiliated nonprofits, Citizens United and the Citizens United Foundation, filed a joint lawsuit challenging Schneiderman’s enforcement action in federal court.18 The case eventually made its way to the U.S. Court of Appeals for the Second Circuit, where it was dismissed. Writing for the three-judge panel, Judge Rosemary S. Pooler had no trouble explaining why the precedents established by NAACP v. Alabama left her free to reach a different result.

She rejected the plaintiffs’ request for strict scrutiny, declaring, “We will apply exacting scrutiny, then, which requires a ‘substantial relation between the disclosure requirement and a sufficiently important governmental interest.’”19 Then she went on to apply that test to the circumstances in the case before her, noting as she did so, that the differences between those circumstances and the ones that applied in NAACP v. Alabama justified her decision to reach a different result:

In NAACP, the Court was presented … with “an uncontroverted showing that on past occasions revelation of the identity of its rank‐and‐file members has exposed those members to economic reprisal, loss of employment, [and] threat of physical coercion,” and it was well known at the time that civil rights activists in Alabama and elsewhere had been beaten and/or killed. The speech chilling likely to result from these harrowing and near‐certain threats of harm easily outweighed the state’s asserted interest in preventing out‐of‐state corporations from conducting in‐state business. …

In this case, all we have to go on is a bare assertion that the Attorney General has a vendetta against [the plaintiffs]. … That is a far cry from the clear and present danger that white supremacist vigilantes and their abettors in the Alabama state government presented to members of the NAACP in the 1950s.

Meanwhile, and unlike the Court in NAACP, we have already concluded that the Attorney General’s regulations are substantially related to the important interest in keeping nonprofit organizations honest. Our balancing task is easy. We have no problem concluding that the regulations in front of us do not impermissibly chill the speech of Appellants or their donors.20

In California, events unfolded in a similar way. Three unaffiliated nonprofits — Americans for Prosperity, the Institute for Free Speech (known at the time as the Center for Competitive Politics), and the Thomas More Law Center — filed separate lawsuits challenging the enforcement actions initiated by Attorney General Harris.21 In all three cases, when the challenge reached the United States Court of Appeals for the Ninth Circuit, the court rejected the plaintiffs’ claim that the attorney general’s demand should be reviewed under the strict scrutiny standard, found that the state had met its burden under the less rigorous “exacting scrutiny” standard, and eventually decided the case in favor of the state attorney general.22

Citizens Union of the City of New York v. Governor of the State of New York

The news for donor privacy advocates has not been all bad. Working with his allies in the state legislature, in 2016, New York Gov. Andrew Cuomo led an effort to use donor disclosure as a weapon against those who opposed his policies and the policies of New York’s Democratic establishment.23 In the early hours of the morning on June 17, 2016, with only a few minutes of discussion in either chamber and without the three days notice normally required under the New York Constitution,24 the New York legislature approved a new “ethics law” that would, according to Cuomo, “shed light on the dark money that runs rampant through our political process.”25

In fact, the law’s disclosure requirements applied to a wide range of nonprofits, all of which were already heavily regulated in ways that prevented any of them from improperly trying to influence the outcome of elections.26 What the law actually did was give the political establishment a weapon it could use to suppress expressive freedom. What made that weapon particularly powerful was the requirement that “disclosure reports be forwarded to a joint commission on public ethics for the purpose of publishing such reports on the commission’s website.”27

The donor disclosure requirements in the new ethics law were immediately challenged by a coalition of plaintiffs that was led by the Citizens Union of the City of New York, and that included the American Civil Liberties Union as well as several other civil liberties advocacy groups.28 Last year, the donor disclosure requirements were summarily struck down in an exceptionally well-researched and well-reasoned opinion by Judge Denise Cote for the United States District Court for the Southern District of New York.29 As a lower court judge, Judge Cote was bound by the Second Circuit’s holding that donor disclosure demands are subject to exacting, rather than strict, scrutiny. Nevertheless, she found that New York’s new disclosure law, including, in particular, its public disclosure provisions, woefully failed to satisfy even that lower level of scrutiny, and she declared that is was “facially invalid.”30

The State of New York has appealed the case. The appeal will be heard in the U.S. Court of Appeals for the Second Circuit, the same court that upheld Eric Schneiderman’s demand for donor lists. However, there are differences between the two cases that should give donor rights advocates hope. The administrative disclosure rules that were challenged in Citizens United v. Schneiderman were ostensibly promulgated for law enforcement purposes. The attorney general was able to argue, with some degree of plausibility, that the names disclosed would not be made available to the public. Given what we know about state governments and their databases, that sort of promise probably does little to reassure potential donors. Nevertheless, the Second Circuit included it in its list of reasons for upholding the order. The new ethics law, on the other hand, was enacted for the specific purpose of making donors names available to the public. Gov. Cuomo’s use of loaded terms like “transparency” and “dark money” notwithstanding, such a blatant attack on donor privacy will unquestionably be harder to justify than one for which a pretextual law enforcement justification can be maintained.

Preserving Donor Privacy: Next Steps

The judicial outcomes described in the preceding discussion certainly do not imply that donor privacy advocates should give up on litigation as a strategy for achieving their goals. As noted in Part 5, Judge Cote’s decision in Citizens Union v. New York gives us some reason to hope that, just as in NAACP v. Alabama, federal courts will sometimes protect donor privacy from egregiously forthright attacks. What’s more, it is certainly still possible the Supreme Court one day will hand down a decision that strengthens its NAACP v. Alabama holding.

The plaintiffs who are challenging the disclosure orders promulgated by the attorneys general of New York and California have all filed petitions asking the U.S. Supreme Court to review the circuit court decisions that upheld those rules.31 The Supreme Court may grant one or more of those petitions, and, if it does, it may overrule the lower courts and hold that administratively imposed donor disclosure requirements violate the U.S. Constitution even when they are ostensibly imposed for law enforcement purposes. It is even possible the court will find that requiring nonprofits that are not directly involved in electioneering to disclose the names of their donors is unconstitutional on its face. If that were to happen, it would stop the current attack on donor privacy and prevent recurrences once and for all. It is therefore very much worthwhile for donor privacy advocates to do all they can to influence the outcome of these and all similar cases.32

However, there are other things privacy advocates should do as well. They should watch out for, and oppose, legislative proposals to require donor disclosure under state law. They should also advocate in favor of legislation that forbids administrative disclosure demands like the ones made by Eric Schneiderman in New York and by Kamala Harris in California. West Virginia and Mississippi have already enacted donor privacy protection laws that forbid state agencies from making such demands, and other states, including North Carolina, would do well to follow their example. (Copies of the laws are provided in Appendix A and Appendix B.)

The two laws have a lot in common. Both include provisions forbidding state officers from demanding information that could be used to identify donors to nonprofit organizations. Both forbid the release of any such information if it comes into the state’s possession despite the law. Both specifically state that the law does not apply to court orders. Enforcement is the biggest difference between the two. The West Virginia law only provides civil remedies if the law is violated, including treble damages in cases of intentional disclosure. Mississippi’s law, on the other hand, states, “A person who knowingly violates this act is guilty of a misdemeanor punishable by imprisonment of not more than ninety (90) days or a fine of not more than One Thousand Dollars ($1,000.00) or both.” There are, no doubt, pros and cons to each approach to enforcement, and there are other more subtle differences between the two laws that will need to be analyzed and evaluated by legislators considering similar bills.

Conclusion

Freedom of speech, freedom of the press, the right to assemble, and the right to petition the government for a redress of grievances, are all fundamental human rights that deserve to be protected for their own sake. However, they also need to be protected because they are essential to the operation of our republican system of government and, ultimately, to the survival of our free society.

Laws and administrative orders that impose donor disclosure requirements on nonprofit organizations make people afraid to exercise their expressive rights, which is why the fight for donor privacy is so important. To the extent that we can, we should support the nonprofit challenges to donor disclosure laws and administrative orders in court, but this is not something most North Carolinians are in a position to do.

What we can do, however, is oppose any donor disclosure laws that may be introduced in the North Carolina General Assembly. We can also encourage the General Assembly to enact donor privacy protection laws like the ones enacted in West Virginia and Mississippi.

Appendix A: West Virginia’s Donor Privacy Protection Law

WEST VIRGINIA LEGISLATURE 2020 REGULAR SESSION

Enrolled Committee Substitute for Senate Bill 16

AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §1-7-1, §1-7-2, §1-7-3, and §1-7-4, all relating generally to protecting an individual’s constitutional right to privacy in association; creating the Protect Our Right to Unite Act; declaring legislative purpose; defining terms; providing that a public agency may not require a nonprofit entity to disclose the entity’s donor or membership information, subject to certain exceptions; providing that donor or membership information obtained by a public agency may not be released, subject to certain exceptions; providing that membership and donor information is exempt from the disclosure requirements of the state’s Freedom of Information Act; permitting disclosure of records when donor or membership information is redacted; permitting compliance with a lawful court order; providing that an individual has a private cause of action to enjoin unlawful disclosure of donor or membership information and to recover actual damages; providing for the payment of attorney’s fees and costs in certain circumstances; and providing for treble damages in certain circumstances.

Be it enacted by the Legislature of West Virginia:

ARTICLE 7. THE PROTECT OUR RIGHT TO UNITE ACT.

§1-7-1. Legislative purpose.

The purpose of this article is to protect an individual’s constitutional right to privately associate with advocacy groups that represent his or her beliefs. As the Supreme Court of the United States held in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), compelled disclosure of an advocacy group’s donor or membership lists, where such disclosure would discourage association, is a trespass upon the fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Therefore, this article should be liberally construed in favor of an individual’s right to association, to ensure that private association is not discouraged or suppressed by any actions of the public agencies of this state.

§1-7-2. Definitions.

For the purposes of this article:

  1. “Donor or membership information” means any record which identifies an individual’s membership in, or support of, any tax-exempt entity under 26 U.S.C. §501(c), including information that does not directly identify the individual but which, in combination with other information, would allow a reasonable person to identify the individual. Donor or membership information includes, but is not limited to, a member, donor, or supporter’s name, address, occupation, employer, or any electronic or technical data, including social media accounts, email accounts, location data, or other identifying information.
  2. “Individual” means a person who is a United States citizen, or who is domiciled in the United States, but does not include a foreign agent, foreign government, or foreign principal.
  3. “Public agency” means:
  1. Any department, body, office, commission, board, unit, political subdivision, court, or division of state or local government, however designated; and
  2. Any official, employee, or agent of an entity described in paragraph (A) of this subdivision.

§1-7-3. Protecting privacy of association.

  1. Except as otherwise provided in chapter 3 of this code, chapter 6B of this code, or subsection (e) of this section, a public agency may not require any tax-exempt organization under 26 U.S.C. §501(c) to provide the agency with donor or membership information: Provided, That where the public agency nevertheless obtains donor or membership information, such information may not be released unless pursuant to chapter 3 of this code, chapter 6B of this code, or subsection (e) of this section.
  2. A public agency may not release, permit to be released, nor be compelled to release any record which identifies an individual’s association with any tax-exempt organization under 26 U.S.C. §501(c), or which reveals an individual’s financial or nonfinancial support for such an entity, without the express written permission of the entity and the citizen, or at the request of the citizen.
  3. All donor or membership information is exempt from production or disclosure under the state’s Freedom of Information Act, §29B-1-1 et seq. of this code.
  4. A public agency does not violate subsection (a) of this section if donor or membership information is redacted from a disclosed record.
  5. Nothing in this section precludes compliance with a lawful order issued by a court of competent jurisdiction.

§1-7-4. Civil remedies.

  1. An individual may bring a civil action to enjoin any violation of this article and to recover actual damages incurred by him or her as a result of the violation.
  2. If the plaintiff prevails in a civil action pursuant to this section, he or she is entitled to be reimbursed by the state or public agency for actual costs and such reasonable attorney’s fees he or she has incurred in the litigation.
  3. If the judge or jury in a civil action brought pursuant to this section finds that a public agency intentionally disclosed donor or membership information in violation of this article, the amount of the judgment, which for this purpose includes actual damages, costs, and attorney’s fees, may be trebled as exemplary damages.

Appendix B: Mississippi’s Donor Privacy Protection Law
House Bill 1205

AN ACT TO PROVIDE THAT A PUBLIC AGENCY SHALL NOT REQUIRE ANY ENTITY ORGANIZED UNDER SECTION 501(C) OF THE INTERNAL REVENUE CODE TO PROVIDE THE PUBLIC AGENCY WITH PERSONAL INFORMATION; TO PROVIDE EXCEPTIONS TO THIS PROHIBITION; TO PROVIDE INJUNCTIVE RELIEF FOR VIOLATIONS OF THIS ACT; TO AMEND SECTION 25-61-3, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1.

As used in this act, the following words and phrases shall have the meanings as defined in this section unless the context clearly indicates otherwise:

  1. “Personal information” means any list, record, register, registry, roll, roster or other compilation of data of any kind that directly or indirectly identifies a person as a member, supporter or volunteer of, or donor of financial or nonfinancial support to, any entity organized under Section 501(c) of the Internal Revenue Code. Personal information does not include information reportable to the Secretary of State pursuant to Section 79-11-503(1)(b).
  2. “Public agency” means any state or local governmental unit, however designated, including, but not limited to, this state; any department, agency, office, commission, board, division or other entity of this state; any political subdivision of this state, including, but not limited to, a county, city, township, village, school district, community college district or any other local governmental unit, agency, authority, council, board or commission; or any state or local court, tribunal or other judicial or quasi-judicial body.

SECTION 2.

  1. Notwithstanding any law to the contrary, and subject to subsection (3), a public agency shall not do any of the following:
  1. Require any entity organized under Section 501(c) of the Internal Revenue Code to provide the public agency with personal information.
  2. If in the possession of personal information, a public agency shall not release, publicize or otherwise disclose that personal information without the express written permission of every identified member, supporter, volunteer or donor of the Section 501(c) entity as well as the Section 501(c) entity that received their membership, support, volunteer time or donations.
  3. Request or require a current or prospective contractor with the public agency to provide the public agency with a list of entities organized under Section 501(c) of the Internal Revenue Code to which it has provided financial or nonfinancial support.
  1. Personal information shall be exempt from disclosure under the Mississippi Public Records Act.
  2. This act does not preclude either of the following:
  1. Any lawful warrant for personal information issued by a court of competent jurisdiction; or
  2. A lawful request for discovery of personal information in litigation if both of the following conditions are met:
  1. The requestor demonstrates a compelling need for the personal information by clear and convincing evidence; and
  2. The requestor obtains a protective order barring disclosure of personal information to any person not directly involved in the litigation. As used in this subparagraph, “person” means an individual, partnership, corporation, association, governmental entity or other legal entity.

SECTION 3.

  1. A person alleging a violation of this act may bring a civil action for appropriate injunctive relief.
  2. A court, in rendering a judgment in an action brought under this section, shall award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant in the action if the court determines that the award is appropriate.

SECTION 4.

A person who knowingly violates this act is guilty of a misdemeanor punishable by imprisonment of not more than ninety (90) days or a fine of not more than One Thousand Dollars ($1,000.00) or both.

SECTION 5.

The requirements of this act shall not affect any provisions of the Mississippi Campaign Finance statutes provided in Sections 23-15-801 et seq.

SECTION 6.

Section 25-61-3, Mississippi Code of 1972, is amended as follows:

25-61-3. The following words shall have the meanings ascribed herein unless the context clearly requires otherwise:

  1. “Public body” shall mean any department, bureau, division, council, commission, committee, subcommittee, board, agency and any other entity of the state or a political subdivision thereof, and any municipal corporation and any other entity created by the Constitution or by law, executive order, ordinance or resolution. The term “public body” includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board. Within the meaning of this chapter, the term “entity” shall not be construed to include individuals employed by a public body or any appointed or elected public official.
  2. “Public records” shall mean all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body. “Public records” shall not mean “personal information” as defined in Section 1 of this act.
  3. “Data processing software” means the programs and routines used to employ and control the capabilities of data processing hardware, including, but not limited to, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications and computer networking programs.
  4. “Proprietary software” means data processing software that is obtained under a licensing agreement and is protected by copyright or trade secret laws.
  5. “Incident report” means a narrative description, if such narrative description exists and if such narrative description does not contain investigative information, of an alleged offense, and at a minimum shall include the name and identification of each person charged with and arrested for the alleged offense, the time, date and location of the alleged offense, and the property involved, to the extent this information is known.
  6. “Investigative report” means records of a law enforcement agency containing information beyond the scope of the matters contained in an incident report, and generally will include, but not be limited to, the following matters if beyond the scope of the matters contained in an incident report:
  1. Records that are compiled in the process of detecting and investigating any unlawful activity or alleged unlawful activity, the disclosure of which would harm the investigation which may include crime scene reports and demonstrative evidence;
  2. Records that would reveal the identity of informants and/or witnesses;
  3. Records that would prematurely release information that would impede the public body’s enforcement, investigative or detection efforts;
  4. Records that would disclose investigatory techniques and/or results of investigative techniques;
  5. Records that would deprive a person of a right to a fair trial or an impartial adjudication;
  6. Records that would endanger the life or safety of a public official or law enforcement personnel, or confidential informants or witnesses;
  7. Records pertaining to quality control or PEER review activities; or
  8. Records that would impede or jeopardize a prosecutor’s ability to prosecute the alleged offense.
  1. “Law enforcement agency” means a public body that performs as one (1) of its principal functions activities pertaining to the enforcement of criminal laws, the apprehension and investigation of criminal offenders, or the investigation of criminal activities.

SECTION 7.

This act shall take effect and be in force from and after July 1, 2019.

Endnotes

1 U.S. Const. amend. I; N.C. Const. art. I, § 12, 14.

2 A list of examples is provided in, “Privacy and the Right to Advocate: Remembering NAACP v. Alabama and Its First Amendment Legacy on the 60th Anniversary of the Case.” Goldwater Institute, January 17, 2018, 8. https://goldwaterinstitute.org/article/privacy-and-the-right-to-advocate-remembering-naacp-v-alabama-and-its-first-amendment-legacy-on-the-60th-anniversary-of-the-case/..

3 Id., 2.

4 Id., 3

5 Nat’l Ass’n for the Advancement of Colored People v. Ala., 357 U.S. 449, 466 (1958).

6 Id., 462.

7 Id., 461 & 465-466.

8 Id., 460.

9 Id., 462-463.

10 In his dissent in Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016), Justice Thomas provides a scathing denunciation of the doctrine: The Constitution does not prescribe tiers of scrutiny. … If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. … But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not…. A law either infringes a constitutional right, or not…. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.  [Quotation marks and citations omitted.]

11 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

12 Id.

13 See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990).

14 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

15 See, e.g., Craig v. Boren, 429 U.S. 190 (1976).

16 Nat’l Ass’n for the Advancement of Colored People v. Ala., 357 U.S. 449, 460-61 (1958).

17 Id., 464.

18 Citizens United v. Schneiderman, No. 1:14-cv-03703-SHS (S.D.N.Y. May 22, 2014).

19 Citizens United v. Schneiderman, 882 F.3d 374, 382 (2018).

20 Id., 385

21 Complaint for Declaratory and Injunctive Relief, Center for Competitive Politics v. Harris, No. 2:14-cv-00636-MCE-DB (E.D. Cal. Mar. 7, 2014); Complaint for Preliminary and Permanent Injunctive Relief and for a Declaratory Judgment, Americans For Prosperity v. Becerra, No. 2:14-cv-09448-R-FFM (2015) (vacated, Americans for Prosperity Found. v. Becerra, 809 F.3d 536 (2015)); Complaint for Preliminary and Permanent Injunctive Relief and for a Declaratory Judgement, Thomas More Law Center v. Harris, No. 2:15-cv-03048-R-FFM (C.D. Cal. Apr. 23, 2015).

22 Ams. for Prosperity Found. v. Becerra, 903 F.3d 1000; Institute for Free Speech v. Becerra, 2019 U.S. App. LEXIS 30553 (2019).

23 Citizens Union of the City of New York v. Attorney General of the State of New York, No. 1:16-cv-09592-DLC, 12 (September 30, 2019).

24 Id., 14-15.

25 Id., 16.

26 Id., 3-10.

27 N.Y. Exec. Law Section 172-e.

28 Complaint, Citizens Union of the City of New York v. Governor of the State of New York, 1:16-cv-09592-DLC (S.D.N.Y. Dec. 12, 2016), https://ecf.nysd.uscourts.gov/doc1/127119376030.

29 Citizens Union of the City of New York v. Governor of the State of New York, No. 1:16-cv-09592-DLC, (S.D.N.Y. September 30, 2019).

30 Id., 61 and 66.

31 Petition for a Writ of Certiorari, Thomas More Law Center v. Becerra, No. 19-255 (U.S. petition for cert. filed 2019); Petition for a Writ of Certiorari, Institute for Free Speech v. Becerra, No. 19-793 (U.S. petition for cert. filed 2019).

32 For those with legal resources, one way to do this is to file amicus briefs in support of plaintiffs in such cases, as the Cato Institute has done in support of the Institute for Free Speech’s petition asking the U.S. Supreme Court to review the Ninth Circuit’s findings. Brief for Cato Institute as Amicus Curiae Supporting Petitioner, Institute for Free Speech, No. 19-793 (U.S. petition for cert. filed 2019).

Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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