Americans for Prosperity Foundation v. Harris, 182 F. Supp. 3d 1049

Background

Americans for Prosperity Foundation (AFP), a 501(c)(3), solicits donors nationwide and files IRS Form 990; Schedule B (donor names/addresses for >$5,000 donors) is not a public federal form.
California requires charities to file Form 990 with the Attorney General’s Registry; the Registry has historically demanded unredacted Schedule Bs and claims confidentiality for them.
AFP filed Form 990s without Schedule B from 2001–2010; AG first flagged AFP’s 2011 filing as incomplete for lack of Schedule B and demanded it in 2013.
AFP sued, obtaining a preliminary injunction; Ninth Circuit remanded for an as-applied trial, holding the facial challenge foreclosed by precedent but permitting an as-applied challenge.
After a bench trial, the district court found (1) the AG rarely used Schedule Bs in investigations and could not show they were necessary or narrowly tailored, (2) disclosure would chill AFP donors due to documented threats/harassment, and (3) the Registry repeatedly and inadvertently made Schedule Bs public, undermining confidentiality.
The court permanently enjoined the Attorney General from requiring AFP to file its Schedule B, concluding AFP prevailed on an as-applied First Amendment challenge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Schedule B demand is unconstitutional as-applied	Demand will subject AFP donors to threats, harassment, and chill association; AFP presented evidence of concrete harms	AG: Schedule B is necessary for enforcement and is kept confidential; disclosure imposes no First Amendment burden	Held for AFP: as-applied disclosure would chill associational rights and is unconstitutional
Whether AG has sufficiently important interest and substantial relation (exacting scrutiny)	AFP: AG cannot show Schedule Bs are needed to investigate or enforce charity laws	AG: Enforcement, detecting self-dealing and fraud, and protecting the public justify the demand	Court: AG’s interest insufficiently shown as applied to AFP; Registry seldom uses Schedule B and alternatives exist
Whether the disclosure requirement is narrowly tailored / least-restrictive means	AFP: less intrusive methods available; AG’s practice is overbroad	AG: exacting scrutiny does not require least-restrictive means outside election context	Court: Requirement is not narrowly tailored for AFP; evidence shows investigators succeed without Schedule Bs
Whether AG can safeguard confidentiality of Schedule Bs	AFP: Registry repeatedly and inadvertently published Schedule Bs, so confidentiality cannot be ensured	AG: Schedule Bs are for nonpublic use and policies prevent public disclosure	Court: AG’s repeated inadvertent public postings show confidentiality regime unreliable; risk of public dissemination justifies relief

Key Cases Cited

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) (exacting scrutiny for disclosure requirements and need for substantial relation to important interest)
Citizens United v. FEC, 558 U.S. 310 (2010) (exacting scrutiny and disclosure precedents in political spending context)
Buckley v. Valeo, 424 U.S. 1 (1976) (disclosure can be least-restrictive means in electoral context)
McConnell v. FEC, 540 U.S. 93 (2003) (as-applied vulnerability where compelled disclosure risks harassment)
Louisiana v. NAACP, 366 U.S. 293 (1961) (state may not pursue important interests by means that broadly stifle associational freedoms)
Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015) (facial challenge to California Schedule B regime rejected)
Americans for Prosperity Found. v. Harris, 809 F.3d 536 (9th Cir. 2015) (remand for as-applied trial; facial challenge limited by circuit precedent)
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (four-factor test for permanent injunction)
Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)