FPC Submits Supreme Court Merits Brief: California Law Requiring Charities and Non-Profits to Disclose Donor Lists Violates Fundamental First Amendment Rights

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Washington D.C. (March 2, 2021)Today, Firearms Policy Coalition (FPC) announced the filing of an important brief with the United States Supreme Court in the cases of Americans for Prosperity v. Becerra and Thomas More Law Center v. Becerra. The brief can be viewed at FPCLegal.org.

The two cases were consolidated by the Court to answer whether a California law requiring charities to disclose IRS Form 990 Schedule B donor information violates the First Amendment. 

Charities soliciting donations in California are required to register with the Registry of Charitable Trusts and renew the registration annually. Among the documentation required for registration is IRS Form 990. Schedule B of Form 990 contains a list of names, addresses, and donation amounts from major donors. This information is considered extremely sensitive and protected by federal law. Prior to 2010, California never required charities to disclose Schedule B forms. Then, the Registry began issuing letters of deficiency to charities demanding submission of Schedule B as part of the annual registration requirement. No California law requires charities to file Schedule B forms. A number of charities, including Americans for Prosperity Foundation and the Thomas More Law Center contested the de facto disclosure requirement in federal court on First Amendment grounds. The 9th Circuit Court of Appeals upheld the requirement. 

FPC, along with the Cato Institute, Hamilton Lincoln Law Institute, Reason Foundation, Individual Rights Foundation, Mountain States Legal Foundation, Foundation for Individual Rights in Education, First Amendment Lawyers Association, and DKT Liberty Project, filed a brief supporting Americans for Prosperity and Thomas More Law Center.  

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The brief argues the Schedule B disclosure requirement violates associational privacy rights protected by the First Amendment. The requirement violates associational privacy rights by threatening the disclosure of sensitive personal information. This threat is not hypothetical but actual and acute. California has demonstrated a pattern of confidentiality violations. In the course of litigation, Petitioners discovered that 1,788 Schedule B’s in the Registry had been publicly posted online. Additionally, it was discovered that every document in the Registry could be accessed publicly by changing a single digit at the end of the website’s URL. These discoveries show the threat of disclosure is real.     

The First Amendment protects a right to private association that the government may only overcome through a law narrowly tailored to advance a compelling state interest. The brief argues the California requirement is not narrowly tailored to overcome a presumption of unconstitutionality and that the threat of public disclosure of sensitive donor information presents a real risk to both charities and donors. Citizens often “speak” anonymously through donations to private charities. They do this because speech expressing minority or publicly disfavored views is often dangerous. Indeed, donors to both Americans for Prosperity Foundation and Thomas More Law Center have received threats of violence and death for their charitable support. Donors giving to charities which support controversial causes may be subject to physical, social, and economic dangers if their information is made public. Disclosure of donor information has the potential to permanently chill protected associational speech and destroy numerous charitable organizations in the process. 

“Our founders understood the risk and potential consequences of speaking out about controversial issues, which is why many of the most important documents in our history have been drafted anonymously,” said FPC’s Joseph Greenlee. “Any burden on the right to speak or associate anonymously contradicts the founders’ intent and violates the First Amendment.”

Firearms Policy Coalition and its FPC Law team are the nation’s next-generation advocates for the right to keep and bear arms and adjacent issues, having recently filed many major federal Second Amendment lawsuits, including challenges to the State of Maryland’s ban on “assault weapons” (Bianchi v. Frosh), the State of Pennsylvania’s and Allegheny County’s carry restrictions (Cowey v. Mullen), Philadelphia’s Gun Permit Unit policies and practices (Fetsurka v. Outlaw), Pennsylvania’s ban on carry by adults under 21 years of age (Lara v. Evanchick), California’s Handgun Ban and “Roster” laws (Renna v. Becerra), Maryland’s carry ban (Call v. Jones), New Jersey’s carry ban (Bennett v. Davis), New York City’s carry ban (Greco v. New York City), the federal ban on the sale of handguns and handgun ammunition by federal firearm licensees (FFLs) to adults under 21 years of age (Reese v. BATFE), and others, with many more cases being prepared today. To follow these and other legal cases FPC is actively working on, visit the Legal Action section of FPC’s website or follow FPC on Instagram, Twitter, Facebook, YouTube.

Firearms Policy Coalition (firearmspolicy.org) is a 501(c)4 nonprofit organization. FPC’s mission is to protect and defend constitutional rights—especially the right to keep and bear arms—advance individual liberty, and restore freedom through litigation and legal action, legislative and regulatory action, education, outreach, grassroots activism, and other programs. FPC Law is the nation’s largest public interest legal team focused on Second Amendment and adjacent fundamental rights including freedom of speech and due process, conducting litigation, research, scholarly publications, and amicus briefing, among other efforts.

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