Americans for Prosperity Found v. Xavier Becerra
919 F.3d 1177
9th Cir.2019Background
- Americans for Prosperity Foundation (Foundation) refused California’s long-dormant requirement to file IRS Form 990 Schedule B (major donor names/addresses) with the state registry, citing threats, harassment, and economic reprisals against its supporters.
- District court found substantial evidence that Foundation supporters had been harassed, threatened, targeted economically, and physically attacked; and that California’s record-keeping had produced multiple inadvertent public disclosures and had security vulnerabilities.
- District court entered a permanent injunction prohibiting California from enforcing the Schedule B disclosure requirement as applied to the Foundation.
- A Ninth Circuit panel reversed, applying "exacting scrutiny" (from Buckley/Doe) rather than the stricter NAACP v. Alabama standard, and concluded California’s nonpublic collection of Schedule B satisfied that test.
- Dissenters argued the panel erred both legally (should have applied NAACP’s compelling-interest/narrow-tailoring test outside the electoral context when disclosure would likely cause reprisals) and factually (improperly discounted district-court findings about disclosure risk and past harms).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of scrutiny standard for compelled disclosure outside electoral context | NAACP standard (compelling interest + substantial relation + narrow tailoring) applies when disclosure risks reprisals | Exacting scrutiny (substantial relation to sufficiently important interest, fit proportional to burden) applies universally | Panel applied exacting scrutiny; dissent argued NAACP should apply here because plaintiffs showed likelihood of reprisals |
| Risk that state-held Schedule B will become public | State registry is insecure; past inadvertent/public disclosures and hacking show reasonable probability of future public disclosure and resulting harassment | State implemented fixes and procedures; risk of repeat disclosures is minimal and registry protections comparable to IRS | Panel found risk of public disclosure of plaintiffs’ specific records was low; dissent said panel ignored record and clear-error standard |
| Adequacy of California’s enforcement interest (use of Schedule B to police charitable fraud) | California has not shown pre-investigation collection materially advances enforcement; subpoenas/audit letters suffice and are less restrictive | State witnesses identified prior investigations where Schedule B aided detection and testified that up-front collection is critical to investigative efficiency | Panel accepted the state’s evidence of investigatory utility; dissent emphasized district court’s contrary factual finding |
| Narrow tailoring / least-restrictive-means requirement | Even assuming a government interest, blanket pre-investigation Schedule B collection is overbroad; subpoenas/audit requests are less restrictive and effective | Nonpublic, upfront Schedule B collection imposes only modest burden and prevents tipping off targets, so it is appropriately tailored under exacting scrutiny | Panel held nonpublic collection survived exacting scrutiny; dissent argued panel failed to require narrow tailoring per NAACP framework |
Key Cases Cited
- NAACP v. Alabama, 357 U.S. 449 (1958) (compelled disclosure of membership lists can abridge associational freedom; state must justify with a controlling/compelling interest)
- Buckley v. Valeo, 424 U.S. 1 (1976) (adopts exacting scrutiny for disclosure in electoral context; requires substantial relation to a sufficiently important interest)
- Doe v. Reed, 561 U.S. 186 (2010) (describes exacting scrutiny: fit and governmental interest must reflect seriousness of burden on First Amendment rights)
- Bates v. Little Rock, 361 U.S. 516 (1960) (recognizes protection for associational freedom from compelled disclosure; state must show compelling interest)
- Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963) (requires substantial relation between disclosure sought and state interest)
- Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) (disclosure must be narrowly drawn to prevent the supposed evil)