Americans for Prosperity Found v. Xavier Becerra
903 F.3d 1000
9th Cir.2018Background
- Americans for Prosperity Foundation and Thomas More Law Center are 501(c)(3) charities that solicit tax-deductible donations in California and file IRS Form 990 Schedule B (names/addresses of large donors) with the IRS.
- California required charities to submit their complete Form 990, including Schedule B, to the California Attorney General for the Registry; Schedule B had been treated as nonpublic and later codified confidential by regulation (Cal. Code Regs. tit. 11, § 310).
- Plaintiffs challenged the state’s Schedule B collection as an as-applied First Amendment freedom-of-association violation, arguing disclosure to the Attorney General would chill donations and potentially lead to harassment if made public.
- District court held the Schedule B requirement unconstitutional as applied to both plaintiffs and permanently enjoined enforcement; the state appealed and plaintiffs cross-appealed.
- Ninth Circuit applied exacting scrutiny, examined (1) the strength of California’s interest in collecting Schedule B to detect charity fraud/self-dealing and (2) the actual First Amendment burden on plaintiffs, including risk of public disclosure and harassment.
- Court concluded the state’s interest in policing charitable fraud is important and substantially related to collecting Schedule B; plaintiffs failed to show a significant burden because deterrence evidence was modest and risk of inadvertent public disclosure was slight given confidentiality measures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CA’s requirement that charities submit Schedule B to the AG violates freedom of association (as‑applied) | Schedule B disclosure to AG will chill donations and expose donors to harassment; thus substantial First Amendment burden | AG needs Schedule B for timely, efficient detection of fraud/self‑dealing; information is kept nonpublic and used for enforcement | Requirement survives exacting scrutiny as applied: state interest is important and substantially related; plaintiffs failed to show a significant burden |
| Whether plaintiffs proved a reasonable probability that compelled disclosure will lead to threats/harassment of donors | Past incidents and generalized fear demonstrate reasonable probability of reprisals if Schedule B becomes public | Risk of public disclosure is low; past breaches were remediated and regulation codifies confidentiality; hence no reasonable probability of widespread reprisals | Plaintiffs did not show reasonable probability of threats/harassment because risk of public disclosure is slight |
| Whether the state must show necessity or least-restrictive means (narrow tailoring) to collect Schedule B | State must use narrowly drawn means and show Schedule B is necessary to achieve enforcement goals | Exacting scrutiny applies (substantial relation), not strict scrutiny; state may use efficient means without proving absolute necessity | Court rejected narrow-tailoring/least-restrictive-means requirement; substantial relation test governs |
| Whether facial challenge to Schedule B requirement succeeds | Plaintiffs argued broader invalidity beyond as-applied relief | AG relied on Ninth Circuit precedent upholding regime facially | Facial challenge rejected (law of the case from Center for Competitive Politics and prior AFPF opinion) |
Key Cases Cited
- Buckley v. Valeo, 424 U.S. 1 (1976) (compelled disclosure can infringe associational rights; risk of harassment informs scrutiny)
- Doe v. Reed, 561 U.S. 186 (2010) (applies exacting scrutiny to disclosure requirements; requires substantial relation between disclosure and important government interest)
- Citizens United v. FEC, 558 U.S. 310 (2010) (discussion of disclosure burdens and tailoring principles)
- Davis v. FEC, 554 U.S. 724 (2008) (the strength of government interest must reflect seriousness of burden)
- Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015) (upheld CA Schedule B regime against facial challenge)
- Americans for Prosperity Found. v. Harris, 809 F.3d 536 (9th Cir. 2015) (preliminary-injunction phase decision addressing risk of public disclosure and confidentiality policy)
- NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (association disclosure can produce severe reprisals; extreme example of cognizable harm)
- Shelton v. Tucker, 364 U.S. 479 (1960) (invalidating overly broad disclosure requirements that chill association)