AMERICANS FOR PROSPERITY FOUNDATION v. XAVIER BECERRA
No. 16-55727
United States Court of Appeals, Ninth Circuit
Filed March 29, 2019
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICANS FOR PROSPERITY
FOUNDATION,
Plaintiff-Appellee,
v.
XAVIER BECERRA, in his
Official Capacity as Attorney
General of the State of
California,
Defendant-Appellant.
No. 16-55727
D.C. No.
2:14-cv-09448-R-FFM
AMERICANS FOR PROSPERITY
FOUNDATION,
Plaintiff-Appellant,
v.
XAVIER BECERRA, in his
Official Capacity as Attorney
General of the State of
California,
Defendant-Appellee.
No. 16-55786
D.C. No.
2:14-cv-09448-R-FFM
THOMAS MORE LAW CENTER,
Plaintiff-Appellee,
v.
XAVIER BECERRA, in his
Official Capacity as Attorney
General of the State of
California,
Defendant-Appellant.
No. 16-56855
D.C. No.
2:15-cv-03048-R-FFM
THOMAS MORE LAW CENTER,
Plaintiff-Appellant,
v.
XAVIER BECERRA, in his
Official Capacity as Attorney
General of the State of
California,
Defendant-Appellee.
No. 16-56902
D.C. No.
2:15-cv-03048-R-FFM
ORDER DENYING
PETITIONS FOR
REHEARING EN
BANC
Filed March 29, 2019
Before: Raymond C. Fisher, Richard A. Paez,
and Jacqueline H. Nguyen, Circuit Judges.
Order;
Dissent by Judge Ikuta;
Reply to Dissent by Judges Fisher, Paez, and Nguyen
SUMMARY*
Civil Rights
The panel denied petitions for rehearing en banc on behalf
of the court.
In its opinion, the panel held that California Attorney
General’s Service Form 990, Schedule B requirement, which
оbligates charities to submit the information they file each
year with the Internal Revenue Service pertaining to their
largest contributors, survived exacting scrutiny as applied to
the plaintiffs because it was substantially related to an
important state interest in policing charitable fraud.
Dissenting from the denial of rehearing en banc, Judge
Ikuta, joined by Judges Callahan, Bea, Bennett and
R. Nelson, stated that the panel’s reversal of the district
court’s decision was based on appellate factfinding and was
contrary to the reasoning and spirit of decades of Supreme
Court jurisprudence, which affords substantial protections to
persons whose associational freedoms are threatened. Judge
Ikuta wrote that under the panel’s analysis, the government
can put the First Amendment associational rights of members
and contributors at risk for a list of names it does not need,
so
long as it promises to do better in the future to avoid public
disclosure of the names. Judge Ikuta wrote that given the
inability of governments to keep data secure, the panel’s
standard puts anyone with controversial views at risk.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
Responding to the dissent from the denial of rehearing en
banc, Judge Fisher, Paez and Nguyen stated that the panel’s
decision to apply exacting scrutiny was consistent with
Supreme Court precedent, Ninth Circuit precedent, and out-of-circuit precedent. The panel noted that the two circuits
that have addressed the issue both have held that exacting,
rather than strict scrutiny apply and that the nonpublic
Schedule B reporting requirements satisfy the First
Amendment because they allow state and federal regulators
to protect the public from charitable fraud without subjecting
major contributors tо the threats, harassment or reprisals that
could flow from public disclosure.
ORDER
Judge Paez and Judge Nguyen have voted to deny the
petitions for rehearing en banc and Judge Fisher has so
recommended.
The full court was advised of the petitions for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration.
The petitions for rehearing en banc (Nos. 16-55727 and
16-55786, filed September 25, 2018 - Dkt. 106; and Nos.
16-56855 and 16-56902, filed September 26, 2018 - Dkt. 67)
are DENIED.
IKUTA, Circuit Judge, with whom CALLAHAN, BEA,
BENNETT, and R. NELSON, Circuit Judges, join, dissenting
from denial of rehearing en banc:
Controversial groups often face threats, public hostility,
and economic reprisals if the government compels the
organization to disclose its membership and contributor lists.
The Supreme Court has long recognized this danger and held
that such compelled disclosures can violate the First
Amendment right to association. See, e.g., NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).
For this reason, the Supreme Court has given significant
protection to individuals who may be victimized by
compelled disclosure of their affiliations. Where government
action subjects persons to harassment and threats of bodily
harm, economic reprisal, or “other manifestations of public
hostility,” NAACP v. Alabama, 357 U.S. at 462, the
government must demonstrate a compelling interest, id.
at 463; Bates v. Little Rock, 361 U.S. 516, 524 (1960), there
must be a substantial relationship between the information
sought and the compelling state interest, Gibson v. Fla.
Legislative Investigation Comm., 372 U.S. 539, 546 (1963),
and the state regulation must “be narrowly drawn to prevent
the supposed evil,” Louisiana ex rel. Gremillion v. NAACP,
366 U.S. 293, 297 (1961) (internal quotation marks omitted)
(quoting Cantwell v. Connecticut, 310 U.S. 296, 307 (1940)).
This robust protection of First Amendment free
association rights was desperately needed here. In this case,
California demanded that organizations that were highly
controversial due to their conservative positions disclose most
of their donors, even though, as the district court found, the
state did not really need this information to accomplish its
goals. Although the state is required to keep donor names
private, the district court found that the state’s promise of
confidentiality was illusory; the state’s database was
vulnerable to hacking and scores of donor names were
repeatedly released to the public, even up to the week before
trial. See Ams. for Prosperity Found. v. Harris, 182 F. Supp.
3d 1049, 1057 (C.D. Cal. 2016). Moreover, as the district
court found, supрorters whose affiliation had previously been
disclosed experienced harassment and abuse. See id. at
1055–56. Their names and addresses, and even the addresses
of their children’s schools, were posted online along with
threats of violence. Some donors’ businesses were boycotted.
In one incident, a rally of the plaintiff’s supporters was
stormed by assailants wielding knives and box cutters, who
tore down the rally’s tent while the plaintiff’s supporters
struggled to avoid being trapped beneath it. In light of the
powerful evidence at trial, the district court held the
organizations and their donors were entitled to First
Amendment protection under the principles of NAACP v.
Alabama. See id. at 1055.
The panel’s reversal of the district court’s decision was
based on appellate factfinding and crucial legal errors. First,
the panel ignored the district court’s factfinding, holding
against all evidence that the donors’ names would not be
made public and that the donors would not be harassed. See
Ams. for Prosperity Found. v. Becerra, 903 F.3d 1000, 1017,
1019 (9th Cir. 2018) (“AFPF II”). Second, the panel declined
to apply NAACP v. Alabama, even though the facts squarely
called for it. See id. at 1008–09. Instead, the panel applied
a lower form of scrutiny adopted by the Supreme Court for
the unique electoral context. See Buckley v. Valeo, 424 U.S.
1, 64, 68 (1976). The panel’s approach will ensure that
individuals affiliated with controversial organizations
effectively have little or no protection from compelled
disclosure. We should have taken this case en banc to correct
this error and bring our case law in line with Supreme Court
jurisprudence.
I
The Supreme Court has established a clear test for cases
like this one. While the Court has modified the test to fit
different contexts, it has not wavered from the principle that
the First Amendment affords organizations and individuals
substantial protection when the government tries to force
disclosure of ties that could impact their freedom of
association.
A
The Supreme Court decisions protecting against forced
disclosures that threaten individuals’ freedom of association
arose in a series of cases involving the NAACP. See, e.g.,
NAACP v. Alabama, 357 U.S. 449; Bates, 361 U.S. 516;
Gremillion, 366 U.S. 293; Gibson, 372 U.S. 539. The Court
considered numerous attempts by states to compel disclosure
of NAACP membership information at a time when those
members faced a well-known risk of “economic reprisal, loss
of employment, threat of physical coercion, and other
manifestations of public hostility.” NAACP v. Alabama,
357 U.S. at 462; see also Gremillion, 366 U.S. at 295–96;
In this broader context, the Court recognized 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 associatiоn” as more direct
restrictions on speech. NAACP v. Alabama, 357 U.S. at 462.
“[F]reedom of association for the purpose of advancing ideas
and airing grievances is protected by the Due Process Clause
of the Fourteenth Amendment from invasion by the States . . .
not only against heavy-handed frontal attack, but also from
being stifled by more subtle governmental interference.”
Bates, 361 U.S. at 523 (citations omitted).
Because state disclosure requirements can abridge First
Amendment associational rights, the Court held such
requirements were subject to heightened scrutiny. Once a
plaintiff carries the burden of showing that a state-required
disclosure may result “in reprisals against and hostility to the
members,” Gremillion, 366 U.S. at 296, the state has to
show: (1) a sufficiently compelling interest for requiring
disclosure, see NAACP v. Alabama, 357 U.S. at 462–63;
(2) that the means were substantially related to that interest,
Gibson, 372 U.S. at 549; and (3) that the means were
narrowly tailored, Gremillion, 366 U.S. at 296. While the
Supreme Court has articulated this three-part test in various
ways, it has made clear that the test affords substantial
protection to persons whose associational freedoms are
threatened.
B
The Court modified the NAACP v. Alabama test for
application in the electoral context. See Buckley, 424 U.S.
at 64, 68. Buckley recognized the importance of applying
“[t]he strict test established by NAACP v. Alabama . . .
because compelled disclosure has the potential for
substantially infringing the exercise of First Amendment
rights,” but it adjusted the test for government action that
affects elections when the plaintiffs could not establish that
disclosure would subject them to threats or harassment. Id.
at 66. It makes sense to adapt the NAACP v. Alabama test for
the electoral context, where the government’s interest is
uniquely important. Influence in elections may result in
influence in government decisionmaking and the use of
political power; therefore, the government’s crucial interest
in avoiding the potential for corruрtion and hidden leverage
outweighs incidental infringement on First Amendment
rights. Id. at 66–68, 71. The interests served by disclosure
outside the electoral context, such as policing types of
charitable fraud, pale in comparison to the crucial importance
of ensuring our election system is free from corruption or its
appearance.
Given the unique electoral context, Buckley held that, for
the first prong, the governmental interest must be
“sufficiently important to outweigh the possibility of
infringement” of First Amendment rights; the government did
not need to show a compelling government interest. Id. at 66.
For the second prong, it still held there must be a “substantial
relation between the governmental interest and the
information required to be disclosed.” Id. at 64 (footnote and
internal quotation marks omitted) (quoting Gibson, 372 U.S.
at 547).
As to the third prong of the test, Buckley fashioned a per
se rule: it deemed the disclosure requirement to be “the least
restrictive means of curbing the evils of campaign ignorance
and corruption that Congress found to exist.” Id. at 68.
Buckley based this conclusion on its recognition that
Congress always has a substantial interest in combating voter
ignorance by providing the electorate with information about
the sources and recipients of funds used in political
campaigns in order to deter actual corruption and avoid the
appearance of corruption, and in gathering data necessary to
detect violations of separate political contribution limits. Id.
at 66–68. Because, “in most applications,” disclosure is “the
least restrictive means of curbing the evils of campaign
ignorance and corruption,” the narrow tailoring prong of the
NAACP v. Alabama test is satisfied. Id. at 68.
Recognizing the distinction between elections and other
justifications for disclosure, the Supreme Court has applied
Buckley’s test only in cases that involve election-related
disclosures, a context in which the Supreme Court has already
established that disclosure is the least restrictive means of
reaching Congress’s goals. See, e.g., Doe v. Reed, 561 U.S.
186, 196–97 (2010); Citizens United v. FEC, 558 U.S. 310,
369–70 (2010). These cases did not discuss whether
disclosure was narrowly tailored to address the government’s
concern; Buckley already held that it is. For example, Doe v.
Reed recognized the government’s interest in “preserving the
integrity of the electoral process” and “promoting
transparency and accountability in the electoral process,” and
thus there was no need to discuss narrow tailoring. 561 U.S.
at 197–98. The Court likewise did not focus on the narrow
tailoring requirement in Citizens United, noting Buckley’s
holdings that “disclosure could be justified based on a
governmental interest in ‘provid[ing] the electorate with
information’ about the sources of election-related spending,”
and that “disclosure is a less restrictive alternative to more
comprehensive regulations of speech.” 558 U.S. at 367, 369
(quoting Buckley, 424 U.S. at 66).
The Court’s limited application of the Buckley test,
confined to cases in the electoral context in which the
government’s aim is to serve goals like “transparency and
accountability,” has not displaсed the stringent standard set
out in NAACP v. Alabama. Indeed, the NAACP v. Alabama
standard was likely not triggered in the election cases, given
that they did not involve evidence that compelled disclosure
would give rise to public hostility to the plaintiff’s members
or donors. The Court has maintained NAACP v. Alabama’s
standard outside of the electoral context, thus reasserting the
validity of that standard after Buckley. See, e.g., In re
Primus, 436 U.S. 412, 432 (1978) (holding that where a state
seeks to infringe upon a party’s First Amendment freedom of
association, the state must justify that infringement with “a
subordinating interest which is compelling” and must use
means that are “closely drawn to avoid unnecessary
abridgment of associational freedoms”) (first quoting Bates,
361 U.S. at 524; then quoting Buckley, 424 U.S. at 25); see
also Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)
(holding that infringement of the right to associate “may be
justified by regulations adopted to serve compelling state
interests, unrelated to the suppression of ideas, that cannot be
achieved through means significantly less restrictive of
associational freedoms”). Thus, there is no doubt that the
NAACP v. Alabama test—requiring a compelling government
interest, a substantial relation between the sought disclosure
and that interest, and narrow tailoring so the disclosure does
not infringe on First Amendment rights more than
necessary—remains applicable for cases arising outside of the
electoral contеxt, where a plaintiff needs its crucial protection
against forced disclosures that threaten critical associational
rights.
C
Until recently, the circuit courts, including the Ninth
Circuit, have agreed that NAACP v. Alabama is still good
law, and they have applied it when considering state action
that has the effect of burdening individuals’ First Amendment
rights by requiring disclosure of associational information.1
In Familias Unidas v. Briscoe, for instance, the Fifth Circuit
struck down a Texas statute that empowered a county judge
to compel public disclosure of the names of organizations that
interfered with the operation of public schools. 619 F.2d 391,
394 (5th Cir. 1980). In that case, the judge had compelled
disclosure of the names of Mexican-American students and
adults who were members of a group seeking reform of the
Hondo public schools. The Fifth Circuit recognized that the
Supreme Court had upheld compulsory disclosures of
membership lists only when the underlying state interest is
compelling and legitimate, and the disclosure requirement is
“drawn with sufficiently narrow specificity to avoid
impinging more broadly upon First Amendment liberties than
is absolutely necessary.” Id. at 399 (citing Buckley, 424 U.S.
at 68).
Our cases have likewise remained faithful to NAACP v.
Alabama. For example, Brock v. Local 375, Plumbers
International Union of America, 860 F.2d 346 (9th Cir. 1988)
recognized that once a
plaintiff shows that disclosure will result in “harassment,
membership withdrawal, or discouragement of new
members,” or otherwise chill associational rights, heightened
scrutiny applies: the government must demonstrate that the
information sought “is rationally related to a compelling
governmental interest,” and that the disclosure requirement is
the least restrictive means of obtaining that information.
860 F.2d 346, 350 (9th Cir. 1988) (citing Buckley, 424 U.S.
at 64, 68; Shelton v. Tucker, 364 U.S. 479, 488 (1960)). We
reaffirmed this approach in Perry v. Schwarzenegger, 591 F.3d
1147 (9th Cir. 2010), where
we emphasized that “[i]nfringements on [the freedom to
associate] may be justified by regulations adopted to serve
compelling state interests, unrelated to the suppression of
ideas, that cannot be achieved through means significantly
less restrictive of associational freedoms.” 591 F.3d 1147,
1159 (9th Cir. 2010) (quoting Roberts, 468 U.S. at 623).2
In recent years, a few outliers have emerged and broken
from the uniform application of NAACP v. Alabama when
considering challenges to government-required disclosure.
We applied Buckley, rather than NAACP v. Alabama, in two
cases involving state disclosure requirements outside the
electoral context. See Ams. for Prosperity Found. v. Harris,
809 F.3d 536, 538–39 (9th Cir. 2015) (per curiam) (“AFPF
I”); Ctr. for Competitive Politics v. Harris, 784 F.3d 1307,
1312–14 (9th Cir. 2015) (“CCP”). The Second Circuit has
also recently applied Buckley’s test—without a narrow
tailoring requirement—to a challenge to a government
disclosure requirement outside of the electoral context. See
Citizens United v. Schneiderman, 882 F.3d 374, 382, 385 (2d
Cir. 2018). But none of these outliers offered a convincing
rationale for extending Buckley outside of the electoral
context. Equally important, none addressed a situation in
which a plaintiff showed a reasonable probability of threats
or hostility in the event of disclosure, see Schneiderman,
882 F.3d at 385; AFPF I, 809 F.3d at 541; CCP, 784 F.3d at
1314, which is a threshold requirement for the application of
NAACP v. Alabama’s test. Accordingly, these cases do not
bear on whether NAACP v. Alabama’s standard must be
applied when a plaintiff does make such a showing,
regardless whether the application of Buckley is appropriate
outside of the electoral context.
II
The facts of this case make clear that the Foundation is
entitled to First Amendment protection under NAACP v.
Alabama and that California’s disclosure requirement cannot
be constitutionally applied to the Foundation.
The Americans for Prosperity Foundation is a
conservative organization dedicated to “educating and
training citizens to be advocates for freedom.”3
It develops
educational programs to “share knowledge and tools that
encourage participants to apply the principles of a free and
open society in their daily lives.”4
People publicly affiliated with the Foundation have often
faced harassment, hostility, and violence, as shown by the
evidence adduced at trial in this case. For example,
supporters have received threatening messages and packages,
had their addresses and children’s school addresses posted
online in an effort to intimidate them, and received death
threats. One blogger posted a message stating he
contemplated assassinating a Foundation supporter: “I’m a
trained killer, you know, courtesy of U.S. taxpayers, and it
would be easy as pie to . . . take [him] out.” In the same vein,
a consultant working for the Foundation posted threats of
physical violence against Foundation employees. On a
different blog site, a person claiming that he worked at the
Foundation posted that he was “inside the belly of the beast,”
and could “easily walk in and slit [the Foundation CEO’s]
throat.”
Foundation supporters have also been subjected to
violence, not just threats. For instance, at a rally in Michigan,
several hundred protestors wielding knives and box cutters
surrounded the Foundation’s tent and sawed at the tent ropes
until they were severed. Foundation supporters were caught
under the tent when it collapsed, including elderly supporters
who could not get out on their own. At least one supporter
was punched by the protestors.
Opponents of the Foundation have also targeted its
supporters with economic reprisal. For instance, after an
article published by Mother Jones magazine in February 2013
revealed donor information, protesters called for boycotts of
the businesses run by six individuals mentioned in the article.
Similarly, Art Pope, who served on the Foundation’s board of
directors, suffered boycotts of his business.
Given this history of harassment, the Foundation was
reluctant to make information about its donors public. This
concern became acute in 2010, when California suddenly
decided to enforce a long dormant disclosure law.
California law requires any entity that wishes to register
as a charitable organization to submit a multitude of tax
forms to the state. See
other requirements, California requires charitable
organizations to file a confidential federal tax form,
Schedule B to IRS Form 990, which contains the names and
addresses of any donors who meet certain criteria. See id.;
Under its regulations, California may release Schedule B only
in response to a search warrant or as needed in an
enforcement proceeding brought against a charity by the
Attorney General. See
as discussed below, the state’s confidential information is so
vulnerable to hacks and inadvertent disclosure that
Schedule B information is effectively available for the taking.
In light of the Foundation’s confidentiality concerns, from
2001 to 2010, it registered as a charity in California without
submitting the donor information its Schedule B contains.5
Over that entire period, California did not request the
Foundation’s Schedule B or list the Foundation’s registration
as a charity as deficient in any way. See AFPF II, 903 F.3d
at 1006–07.
In 2010, California suddenly increased its efforts to
collect charities’ Schedule Bs, and in 2013 the state notified
the Foundation that its registration was deficient because it
had not submitted Schedule B donor information. See id. at
1006. In an effort to protect its donors from likely threats and
hostility as backlash for their affiliation with the Foundation,
it filed suit seeking to enjoin California from enforcing this
requirement against it.
After a multi-day trial, the district court ruled that the
First Amendment protects the Foundation from forced
disclosure of its donor information,6
and it entered a
permanent injunction against California’s enforcement of the
Schedule B requirement as applied to the Foundation. See
Ams. for Prosperity Found., 182 F. Supp. 3d at 1059.
III
The panel reversed, holding that California’s interest in
Schedule B information was “sufficiеntly important” and that
there was a substantial relation between the requirement and
the state’s interest. AFPF II, 903 F.3d at 1008 (quoting Doe,
561 U.S. at 196). In reaching this conclusion, the panel made
crucial factual and legal errors.
The panel’s legal error is evident. Although this case
arose outside of the election context, and the Foundation
established that its members might be exposed to harassment
and abuse if their identities were made public, the panel
mistakenly applied Buckley’s “exacting scrutiny” and rejected
the Foundation’s argument that a narrow tailoring
requirement applied in this context. See AFPF II, 903 F.3d
The panel’s factual errors are equally egregious. As a
general rule, appellate courts may not override the facts found
by a district court unless they are clearly erroneous. In our
circuit, “we will affirm a district court’s factual finding unless
that finding is illogical, implausible, or without support in
inferences that may be drawn from the record.” United States
v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
Here, the panel not only failed to defer to the district court,
but reached factual conclusions that were unsupported by the
record.
First, the district court held that disclosure of the
Schedule B information to the state could result in the names
of the Foundation’s donors being released to the public. See
Ams. for Prosperity Found., 182 F. Supp. 3d at 1057. The
district court squarely rejected the state’s argument that no
donor information disclosed to the state would be publicly
disclosed becausе it would remain confidential on the state’s
servers. See id. The evidence produced at trial in this case
provided overwhelming support for the court’s findings.
There was ample evidence of human error in the operation of
the state’s system. State employees were shown to have an
established history of disclosing confidential information
inadvertently, usually by incorrectly uploading confidential
documents to the state website such that they were publicly
posted. Such mistakes resulted in the public posting of
around 1,800 confidential Schedule Bs, left clickable for
anyone who stumbled upon them. AFPF II, 903 F.3d at 1018.
And the public did find them. For instance, in 2012 Planned
Parenthood become aware that a complete Schedule B for
Planned Parenthood Affiliates of California, Inc., for the 2009
fiscal year was publicly posted; the document included the
names and addresses of hundreds of donors.
There was also substantial evidence that California’s
computerized registry of charitable corporations was shown
to be an open door for hackers. In preparation for trial, the
plaintiff asked its expert to test the security of the registry.
He was readily able to access every confidential document in
the registry—more than 350,000 confidential
documents—merely by changing a single digit at the end of
the website’s URL. See AFPF II, 903 F.3d at 1018. When
the plaintiff alerted California to this vulnerability, its experts
tried to fix this hole in its system. Yet when the expert used
the exact same method the week before trial to test the
registry, he was able to find 40 more Schedule Bs that should
have been confidential.
In rejecting the district court’s factual conclusions, the
panel violated our standard of review as well as common
sense. The panel concluded that in the future, all Schedule B
information would be kept confidential. It reasoned that
because the state technician was able to fix the security
vulnerability exposed by the Foundation’s expert, “[t]here is
no evidence to suggest that this type of error is likely to
recur.” Id. at 1018. The panel did not address the fact that
even a week before trial, the state could not prevent a second
disclosure based on the same security vulnerability. Further,
the panel claimed that despite the state’s long history of
inadvertent disclosure of Schedule B information through
human error, the state’s new efforts to correct human errors
through additional “procedural quality checks” and “a system
of text-searching batch uploads before they are scanned to the
Registry site to ensure none contains Schedule B keywords”
would obviate future disclosures. Id. at 1018. But no evidence
supports this claim, and it is contrary to any real-world
experience.
Second, the district court found that the state did not have
a strong interest in obtaining the Schedule B submissions to
further its enforcement goals. Instead, it held that
California’s up-front Schedule B submission requirement
“demonstrably played no role in advancing the Attorney
General’s law enforcement goals for the past ten years.”
Ams. for Prosperity Found., 182 F. Supp. 3d at 1055. Indeed,
California could not point to “even a single, concrete instance
in which pre-investigation collection of a Schedule B did
anything to advance the Attorney General’s investigative,
regulatory or enforcement efforts.” Id. at 1055. The panel rejected
this well-supported finding based solely on the conclusory,
blanket assertions made by state witnesses that up-front
disclosure of donor names increases “investigative
efficiency.” AFPF II, 903 F.3d at 1010. Yet the Supreme
Court has made clear that a state’s “mere assertion” that there
Finally, the district court found ample evidence that Foundation supporters would likely be subject to threats or hostility should their affiliations be disclosed. See Ams. for Prosperity Found., 182 F. Supp. 3d at 1055–56. But based on its unsupported assumption that public disclosure would not occur, the panel felt justified in disregarding this well-supported conclusion. AFPF II, 903 F.3d at 1017.
Given the panel’s erroneous factual determinations that there would be no public disclosure of Foundation donors and that California’s disclosure requirement was substantially related to its enforcement goals, and its mistaken legal decisiоn that no narrow tailoring was required, it is not surprising that the panel easily arrived at the conclusion that the donors were not entitled to any protection of their First Amendment rights.
IV
But contrary to the panel, the full protection of NAACP v. Alabama was warranted in this case, because the Foundation’s donors may be exposed to harassment and abuse if their identities are disclosed, and the special considerations regarding government-required disclosures for elections are not present. See, e.g., Primus, 436 U.S. at 432; Brock, 860 F.2d at 350. Had the panel properly recognized NAACP v. Alabama’s applicability, it would have considered (1) whether California presented a compelling interest that is
Applying the correct test, it is clear that California failed to show that its Schedule B disclosure requirement is “substantially related” to any interest in policing charitable fraud. A state’s “mere assertion” that there was a substantial relationship between the disclosure requirement and the state’s goals is not enough to establish such a relationship, see Bates, 361 U.S. at 525; Gibson, 372 U.S. at 554–55, and the district court’s well-supported factual findings establish that the Schedule Bs are rarely used to detect fraud or to enhance enforcement efforts.
Nor is California’s disclosure requirement narrowly tailored; rather, the means “broadly stifle fundamental personal liberties” аnd “the end can be more narrowly achieved.” Gremillion, 366 U.S. at 296 (quoting Shelton, 364 U.S. at 488). The state requires blanket Schedule B disclosure from every registered charity when few are ever investigated, and less restrictive and more tailored means for the Attorney General to obtain the desired information are readily available. In particular, the Registry can obtain an organization’s Schedule B through a subpoena or a request in an audit letter once an investigation is underway without any harm to the government’s interest in policing charitable fraud. Moreover, the state failed to provide any example of an investigation obscured by a charity’s evasive activity after reсeipt of an audit letter or subpoena requesting a Schedule B, although state witnesses made assertions to that effect. See AFPF II, 903 F.3d at 1010–11. The panel’s erroneous application of Buckley led it to ignore this requirement
Accordingly, under the proper application of the test to the facts found by the district court, the Foundation was entitled to First Amendment protection of its donor lists. Because California failed to show a substantial relation between its articulated interеst and its disclosure requirement, and because it failed to show that the requirement was narrowly tailored, California’s Schedule B disclosure requirement fails the test provided by NAACP v. Alabama, and it should have been struck down as applied to the Foundation.
The panel’s contrary conclusion eviscerates the First Amendment protections long-established by the Supreme Court. By applying Buckley where NAACP v. Alabama’s higher standard should have been triggered, the panel lowered the bar governments must surmount to force disclosure of sensitive associational ties. Under the panel’s standard, a state’s self-serving assertions about efficient law enforcement are enough to justify disclosures notwithstanding the threats, hostility, and economic reprisals against socially disfavored groups that may ensue. And by rejecting the district court’s factual findings that disclosed donor lists will become public and expose individuals to real threats of harm, the panel imposes a next-to-impossible evidentiary burden on plaintiffs seeking protection of their associational rights. Indeed, if the Foundation’s evidence is not enough to show that California cannot adequately secure its information, no plaintiff will be able to overcome a state’s empty assurances. “The possibility
V
In short, the panel’s conclusion is contrary to the reasoning and spirit of decades of Supreme Court jurisprudence. Under the panel’s analysis, the government can put the First Amendment associational rights of members and contributors at risk for a list of names it does not need, so long as it promises to do better in the future to avoid public disclosure of the names. Given the inability of governments to keep data secure, this standard puts anyone with controversial views at risk. We should have reheard this case en banc to reaffirm the vitality of NAACP v. Alabama’s protective doctrine, and to clarify that Buckley’s watered-down standard has no place outside of the electoral context.
The First Amendment freedom to associate is vital to a functioning civil society. For groups with “dissident beliefs,” it is fragile. The Supreme Court has recognized this time and time again, but the panel decision strips these groups of First Amendment protection. I dissent from our decision not to correct this error.
The State of California, like the federal government, requires tax-exempt
I
Organizations operated exclusively for religious, charitable, scientific or educational purposes are eligible for an exemption from federal and state taxes under
Because this favored tax treatment presents opportunities for self-dealing, fraud and abuse, organizations availing themselves of
This information is reported not only to the IRS but also to state regulators. California’s Supervision of Trustees and Charitable Trusts Act requires the Attorney General to maintain a registry of charitable organizations and authorizes the Attorney General to obtain “whatever information, copies
This contributor information is not made public. See
II
Some
The two federal appellate courts to have addressed the issue, ours and the Second Circuit, have rejected these claims. See AFPF II, 903 F.3d 1000; Schneiderman, 882 F.3d 374; AFPF I, 809 F.3d 536; Ctr. for Competitive Politics, 784 F.3d 1307. These courts have agreed that exacting rather than
The dissent from the denial of rehearing en banc challenges these decisions, arguing that a form of strict scrutiny applies and that California’s Schedule B requirement is unconstitutional. In our view, the dissent’s arguments are not well taken.
III
The bulk of the dissent is devoted to the argument that we erred by applying exacting scrutiny. According to the dissent, First Amendment challenges to disclosure requirements are subject to two different tests:
- In the electoral context, “exacting scrutiny” applies. This “standard requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest. To withstand this scrutiny, the strength of the governmental interest must rеflect the seriousness of the actual burden on First Amendment rights.” Doe v. Reed, 561 U.S. 186, 196 (2010) (citations and internal quotation marks omitted).
- Outside the electoral context, “heightened scrutiny” applies. This standard requires (1) a “compelling interest,” (2) “a substantial relationship between the
This case does not arise in the electoral context. Hence, according to the dissent, we should have applied the dissent’s proposed “heightened scrutiny” test rather than exacting scrutiny. Had we done so, the dissent says, we would have invalidated California’s Schedule B requirement.
We respectfully disagree with the dissent’s contention that First Amendment challenges to disclosure requirements are subject to two different tests. In our view, there is only a single test – exacting scrutiny – that applies both within and without the electoral context. This test originated in NAACP v. Alabama, 357 U.S. 449 (1958), and the other Civil Rights Era cases – Bates v. City of Little Rock, 361 U.S. 516 (1960), Shelton v. Tucker, 364 U.S. 479 (1960), Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961), Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963) – and has been applied more recently in Buckley v. Valeo, 424 U.S. 1 (1976), Doe and other cases arising in the electoral context. As Doe explains, the exacting scrutiny test:
requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest. To withstand this scrutiny, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.
Whereas strict scrutiny requires a compelling interest and narrow tailoring in every case, the interest and tailoring required under exacting scrutiny varies from case to case, depending on the aсtual burden on First Amendment rights at stake: the governmental interest must be “sufficiently important” to justify the “actual burden on First Amendment rights” in the case at hand. Id. (emphasis added). Thus, where the burden that a disclosure requirement places on First Amendment rights is great, the interest and the fit must be as well. See, e.g., Buckley, 424 U.S. at 25 (“Even a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” (emphasis added) (internal quotation marks omitted)); Gibson, 372 U.S. at 546 (“Where there is a significant encroachment upon personаl liberty, the State may prevail only upon showing a subordinating interest which is compelling.” (emphasis added) (quoting Bates, 361 U.S. at 524)); Gremillion, 366 U.S. at 296 (“[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” (emphasis added) (quoting Shelton, 364 U.S. at 488)); Shelton, 364 U.S. at 488 (same); Bates, 361 U.S. at 524 (“Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.” (emphasis added) (citing NAACP v. Alabama, 357 U.S. 449)); see also R. George Wright, A Hard Look at Exacting Scrutiny, 85 UMKC L. Rev. 207, 210 (2016). But where, as
The dissent’s contention that there are two different tests is based on the premise that NAACP v. Alabama applied something other than exacting scrutiny. We are not persuaded. First, the Supreme Court has already told us that NAACP v. Alabama applied exacting scrutiny: “Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny.” Buckley, 424 U.S. at 64. Second, there is simply no way to read NAACP v. Alabama as applying anything other than the exacting scrutiny test described in Doe. The only question the Court decided in NAACP v. Alabama was whether the state had “demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner’s members of their constitutionally protected right of associаtion.” 357 U.S. at 463 (emphasis added). The disclosure requirement failed solely because “Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have.” Id. at 466. There is no light between the test applied in NAACP v. Alabama and the one described in Doe.
In sum, we properly applied exacting scrutiny.
IV
The dissent also challenges our conclusion that California’s Schedule B requirement survives exacting scrutiny. As noted, a disclosure requirement withstands
A. Strength of the Governmental Interest
With respect to the state’s interest in collecting Schedule B information, the evidence was undisputed that the state uses Schedule B information to investigate charitable fraud. See AFPF II, 903 F.3d at 1011. “Current and former members of the Charitable Trusts Section, for example, testified that they found the Schedule B particularly useful in several investigations over the past few years, and provided examples. They were able to use Schedule B information to trace money used for improper purposes in connection with a charity serving animals after Hurricane Katrina; to identify a charity’s founder as its principal contributor, indicating he was using the research charity as a pass-through; to identify self-dealing in that same charity; to track a for-profit corporation’s use of a non-profit organization as an improper vessel for gain; and to investigate a cancer charity’s gift-in-kind fraud.” Id. Circuits have consistently recognized the strength of this interest. See, e.g., Schneiderman, 882 F.3d at 384; Ctr. for Competitive Politics, 784 F.3d at 1311, 1317.
The evidence also was undisputed that up-front collection of Schedule B information provides the only effective means of obtaining the information. State regulators testified that attempting to obtain a Schedule B from a regulated entity after an investigation begins is ineffective “[b]ecause it’s time-consuming, and you are tipping the charity off that they
Although the district court questioned the strength of the governmental interest, it did so by applying an erroneous legal standard, requiring the state to establish that up-front collection of Schedule B information was the least restrictive means of obtaining the information, see Ams. for Prosperity Found. v. Harris, 182 F. Supp. 3d 1049, 1053–55 (C.D. Cal. 2016), and that it would be impossible fоr the state to regulate charitable organizations without collecting Schedule B information, see Thomas More Law Ctr. v. Harris, No. CV 15-3048-R, 2016 WL 6781090, at *2 (C.D. Cal. Nov. 16, 2016). By applying the wrong legal standard, the district court abused its discretion, see United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc), and disregarded a previous ruling by this court in this very case, see AFPF I, 809 F.3d at 541 (rejecting a least restrictive means test).
B. Actual Burden on First Amendment Rights
To determine the actual burden on First Amendment rights, we looked at two questions: (1) the likelihood that the plaintiffs’ Schedule B contributors would face threats, harassment or reprisals if their Schedule B information were made public and (2) the likelihood that the information would become public. See AFPF II, 903 F.3d at 1015.
Ultimately, because California, like the federal government and other states, requires only the nonpublic disclosure of Schedule B information, we did not need to decide whether, in the event of public disclosure of the Schedule B information, the plaintiffs’ Schedule B contributors were likely to encounter threats, harassment or reprisals. See id. at 1017. We acknowledged the risk of
the Registry Unit has implemented stronger protocols to prevent human error. It has implemented “procedural quality checks . . . to sample work as it [is] being performed” and to ensure it is “in accordance with procedures on handling documents and [indexing them] prior to uploading.” It has further implemented a system of text-searching batch uploads before they are scanned to the Registry site to ensure none contains Schedule B keywords. At the time of trial in 2016, the Registry Unit had halted batch uploads altogether in favor of loading each document individually, as it was refining the text-search system. After forms are loaded to the Registry, the Charitable Trusts Section runs an automated weekly script to identify and remove any documents that it had inadvertently misclassified as public. There is also no dispute that the Registry Unit immediately removes any information that an
Id. There was no evidence that these “cyberseсurity protocols are deficient or substandard as compared to either the industry or the IRS, which maintains the same confidential information.” Id. at 1019.
We also emphasized that we were addressing an as-applied challenge. See id. The key question, therefore, was not whether there was a “risk of inadvertent disclosure of any Schedule B information in the future,” but rather whether there was a significant “risk of inadvertent disclosure of the plaintiffs’ Schedule B information in particular.” Id. There can be no question that this risk – which the district court failed to consider – is exceedingly small, so the plaintiffs did not show “a reasonable probability that the compelled disclоsure of [their major] contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Buckley, 424 U.S. at 74. The state’s interest in obtaining the plaintiffs’ Schedule B information therefore was sufficient under Doe to justify the modest burden on First Amendment rights. See AFPF II, 903 F.3d at 1019.
V
Our colleagues sensibly declined to rehear this case en banc. Our decision to apply exacting scrutiny is consistent with Supreme Court precedent, see Doe, 561 U.S. at 196; Buckley, 424 U.S. at 64, NAACP v. Alabama, 357 U.S. at 463, Ninth Circuit precedent, see Ctr. for Competitive Politics, 784 F.3d at 1312–13, and out-of-circuit precedent, see Schneiderman, 882 F.3d at 381–82. Likewise, our conclusion
Notes
is made, the burden then shifts to the government to show both a
compelling need for the material sought and that there is no significantly
less restrictive alternative for obtaining the information.”); Wilson v.
Stocker, 819 F.2d 943, 949 (10th Cir. 1987) (“The law must be
substantially related to a compelling governmental interest, and must be
narrowly drawn so as to be the least restrictive means of protecting that
interest.”); Humphreys, Hutcheson, & Moseley v. Donovan, 755 F.2d
1211, 1222 (6th Cir. 1985) (upholding the challenged provisions in part
because they “arе carefully tailored so that first amendment freedoms are
not needlessly curtailed”); Clark v. Library of Cong., 750 F.2d 89, 94
(D.C. Cir. 1984) (“[T]he government must demonstrate that the means
chosen to further its compelling interest are those least restrictive of
freedom of belief and association.”); Master Printers of Am. v. Donovan,
751 F.2d 700, 705 (4th Cir. 1984) (“To survive the ‘exacting scrutiny’
required by the Supreme Court, . . . the government must show that the
disclosure and reporting requirements are justified by a compelling
government interest, and that the legislation is narrowly tailored to serve
that interest.”); see also Perry v. Schwarzenegger, 591 F.3d 1147,
1159–61 (9th Cir. 2010); Dole v. Serv. Emps. Union, AFL-CIO, Local
280, 950 F.2d 1456, 1461 (9th Cir. 1991); Brock v. Local 375, Plumbers
NAACP v. Alabama test, see, e.g., Brock, 860 F.2d at 350, they remain
faithful to the principles of NAACP v. Alabama by applying its heightened
scrutiny and requiring narrow tailoring.
visited March 11, 2019).
any person who donated more than 2 percent of the Foundation’s annual
contributions. See
California’s enforcement against the Foundation. See AFPF II, 903 F.3d
at 1006. A panel of our court reversed in part on the ground that the
Foundation had not shown evidence of past hostility toward Foundation
donors or a reasonable probability of future hostility. See AFPF I,
809 F.3d at 539–41. On remand, the Foundation presented evidence of