In a 6-3 decision – split along ideological lines – the U.S. Supreme Court voted in favor of two conservative organizations that argued the state of California was violating a fundamental right to free speech and association. Conservative justices said no dice to a mandate issued by the California attorney general’s office that required non-profits to explicitly state the names of those who make significant donations to their charitable organizations. For the last decade, such groups had been forced to provide the names of top donors to the state authorities. The Americans for Prosperity Foundation and the Thomas More Law Center had enough and trod the long winding route all the way to the High Court.
But the Supremes said that California violated the First Amendment to the U.S. Constitution, which guarantees an individual the right to free speech and association. In the ruling, Chief Justice John Roberts wrote: “We are left to conclude that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights.”
The Back Story
It wasn’t until 2010 that California decided to put some teeth into its policy and sent out “thousands of deficiency letters to charities that had not complied” with the requirement. When the non-profits in the case “continued to resist disclosing their contributors’ identities, the Attorney General threatened to suspend their registrations and fine their directors and officers,” wrote Roberts. The chief justice went on to say:
The court also determined that the disclosure regime burdened the associational rights of donors. In both cases, the court found that the petitioners had suffered from threats and harassment in the past and that donors were likely to face similar retaliation in the future if their affiliations became publicly known. For example, the CEO of the Foundation testified that a technology contractor working at the Foundation’s headquarters had posted online that he was “inside the belly of the beast” and “could easily walk into [the CEO’s] office and slit his throat.”
California claimed that it could ensure confidentiality of high-net-worth donors, but the Supremes weren’t buying it. To wit: “The court found after trial that ‘the amount of careless mistakes made by the Attorney General’s Registry is shocking.’”
The First Amendment to the Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Such as it is, the majority found that California essentially put a restraint on those wanting to donate large sums to the non-profits and “casts a dragnet for sensitive donor information from tens of thousands of charities each year …”
In his 29-page opinion, Roberts intoned, “We have also noted that ‘[i]t is hardly a novel perception 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.’” The chief justice was joined by Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, Samuel Alito, and Clarence Thomas.
Justice Sonia Sotomayor took another 25 pages for her spirited dissent: “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye. Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’” Associate Justices Stephen Breyer and Elena Kagan joined Sotomayor’s opposition to the majority ruling.
In summing up the decision in Americans for Prosperity v. Bonta, Liberty Nation’s Legal Affairs Editor Scott Cosenza notes: “We all benefit when speech remains free from government censors, and we can all be grateful for the six justices who voted to keep it free today.”
Read more from Leesa K. Donner.