by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
For more than a decade, the state of California has been making non-profit organizations disclose the names of their donors as a condition for operating within the state. Kamala Harris started the practice when she was the Attorney General of California, and her successors have carried it on. Fortunately, the U.S. Supreme Court put an end to the practice last thursday when it ruled in favor of the plaintiffs in Americans for Prosperity v. Bonta. It’s an important decision that provides some much needed protection for Americans’ expressive rights.
The free and unfettered flow of competing ideas is essential to the operation of our republican system of government and to the survival of our free and open society. That’s why the First Amendment protects multiple forms of free expression–not just freedom of speech and freedom of the press, but also the right to assemble, and the right to petition the government. For most people, the most effective and efficient way to exercise their expressive rights is to join with others in support of nonprofit organizations that speak and publish and advocate on their behalf. Donor disclosure requirements like the ones that were challenged in AFP v. Bonta make people afraid to exercise their First Amendment rights in that way. That’s why entrenched political interests often favor such requirements, and that’s why this decision striking down California’s donor disclosure requirement is so important.
Yesterday’s decision in AFP v. Bonta completes the job the Supreme Court started more than 60 years ago. In the mid-1950s the State of Alabama attempted to put the local NAACP affiliate out of business by forcing it to disclose the names of its supporters. The state knew many supporters would withdraw their support if doing so meant risking reprisals from segregationists. Rather than allow itself to be run out of the state, however, the NAACP challenged the disclosure requirement in federal court, and in 1958 it won a decisive victory. In a unanimous decision, the U.S. Supreme Court struck down Alabama’s disclosure requirement. Unfortunately, NAACP v. Alabama was too ambiguous and too limited in its scope to put a permanent end to the use of donor disclosure requirements, which is why the political establishemet in California and other states felt free to revived the practice in recent years.
Fortunately, yesterday’s decision in AFP v. Bonta, is sufficiently clear and broad to put a stop to that. Whereas the 1958 decision was vague about how much of a burden a state could impose on citizens’ ability to freely join with others in support of non-profits, in AFP v. Bonta the court was clear that in order to comply with the First Amendment such a burden must be “narrowly tailored” to serve an important governmental interest. The court found that California’s requirement was unconstitutional because, far from being narrowly tailored, it required all non-profits to disclose large amounts of donor information that the state seldom used and could, if needs be, obtain by other means. Moreover, whereas in NAACP v. Alabama the court merely held that Alabama’s donor disclosure requirement was unconstitutional as it applied to the particular circumstances of the case, in AFP v. Bonta the court held that California’s disclosure requirement was unconstitutional “on its face.” That means California can no longer enforce such a requirement under any circumstances, and it puts the rest of the states on notice that they may not enforce similar requirements within their jurisdictions.
For more information on this topic see: Lessons from NAACP–HR1/For the People Act revives this shameful Democrat policy from 1950s and Preserving Donor Privacy in North Carolina.