Amicus Brief: AFP v. Becerra
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Amicus Brief

Amicus Brief: AFP v. Becerra

The Ninth Circuit misconstrued the Supreme Court’s precedents and gave California free rein to demand donor information for any charity in the nation that operates in the state.

In the Supreme Court of the United States

Americans for Prosperity Foundation, Petitioner,


Xavier Becerra, in his official capacity as the Attorney General of California, Petitioner,

Thomas Moore Law Center, Petitioner,


Xavier Becerra, in his official capacity as the Attorney General of California, Petitioner,

On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit

Amici Curiae Brief of the Cato Institute, Firearms Policy Coalition, Hamilton Lincoln Law Institute, Reason Foundation, Individual Rights Foundation, Mountain States Legal Foundation, Foundation for Individual Rights in Education, First Amendment Lawyers Association, and Dkt Liberty Project in Support Of Petitioners

Question Presented

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and its progeny held that courts should apply narrow tailoring to violations of the freedom of association. Has that requirement been overruled such that the right to associate privately does not enjoy the strong protective standard that applies to other First Amendment rights, which this Court has held requires narrow tailoring regardless of the level of scrutiny?

Introduction and Summary of Argument

Americans for Prosperity Foundation (AFPF) and Thomas More Law Center (Thomas More) have shown on the record the justified concerns they have for the harms that could befall their donors if they were compelled to disclose them, but those potential harms are not why they should win this case. They should win because the Constitution protects the right to private, anonymous association, which can be overcome only by a government interest that is both compelling and narrowly tailored. Indeed, AFPF and Thomas More should win this case even if there were no demonstrated threats against donors. As Publius understood, the desire to remain anonymous in your political activities is a venerable and time-honored practice. Even without any threats, anonymity can be used to give arguments more attention than the identity of their author or funder. It’s still the government’s job to demonstrate when and why anonymous association should be squashed.

During the Civil Rights Era, state governments tried to force groups like the NAACP to disclose membership lists. This Court stepped in and subjected such attempts to “the closest scrutiny” because “privacy in group association” has long been recognized as “indispensable to preservation of [the] freedom of association” protected by the First Amendment. NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460–62 (1958). Constitutionally authorized abridgments of the freedom of association require “‘a fit that . . . employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective,’” which applies “[e]ven when the Court is not applying strict scrutiny.” McCutcheon v. FEC, 572 U.S. 185, 218 (2014) (quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). This narrow-tailoring minimum reflects decades of First Amendment precedent in cases concerning both associational and non-associational rights.

While the Civil Rights Era was unique, the right to private association is still no less vital. When people espouse unpopular or controversial beliefs, private association is critical. Yet, in our current polarized political climate, almost anyone’s beliefs will be controversial to someone. A pro-choice advocate in the deep South might anonymously support pro-choice groups, and a pro-life advocate in New England might support pro-life groups. They have seemingly little in common, but they share a significant interest in associational privacy.

Here, the government has not met the burden to overcome the presumption of associational privacy. The record shows that California has no need to compel donor information; the state has managed effectively both to prevent and prosecute charitable fraud for years before this new demand. Should state officials need donor-identifying information, an audit letter or subpoena would easily produce it.

Those are the facts, as detailed in the petitioners’ briefs and on the record. But a purely fact-bound holding here would be both contrary to the history and meaning of the First Amendment and fundamentally unworkable. If future groups are required to demonstrate threats against members, then few groups will have either the evidence available (not every threatening person sends a tweet, letter, or email) or have the legal and institutional means to demonstrate their situation to the relevant authorities. The presumption of associational privacy protected by the First Amendment should not be practically reversed, with the government in essence saying, “demonstrate sufficient level of threat or lose your right to freedom of association.”

Moreover, people who fear no concrete backlash, but merely want to keep their co-workers from knowing their political-spending habits—a common, understandable, and increasingly wise desire—would be unprotected by a fact-bound decision focusing on a demonstrated fear of threats and retaliation. Refraining from political spending would thus be a wise choice for someone whose political beliefs are generally normal but contextually dangerous—such as opposing recycling policies while working in a Silicon Valley start-up or supporting Black Lives Matter while serving as a clerk in a police department. Those potential victims of California’s First Amendment violations—if sustained by this Court—will largely remain hidden.

The record demonstrates this alarming chilling effect California’s compelled disclosure has on donors. State employees posted more than 1,800 confidential Schedule B forms on a website, opening charitable donors up to potential intimidation, retaliation, and harassment. This kind of publicity not only affects donors’ speech, but also has the potential to dry up charities’ largest sources of support and further inhibit the freedom of association.

The Court’s precedents are clear: No matter the level of judicial scrutiny, state actions that infringe First Amendment freedoms, such as the compelled disclosure of donor lists, must be narrowly tailored to the governmental interest asserted. Petitioners AFPF and Thomas More have provided an opportunity for the Court to reaffirm those precedents and continue its protection of First Amendment freedoms.

The Ninth Circuit misconstrued this Court’s precedents, ignored the question of fit, and gave California free rein to demand donor information for any charity in the nation that operates in the state. The Ninth Circuit is wrong. The state did not meet the necessary burden to restrict the freedom of speech and the freedom of association. California’s Schedule B requirement is unconstitutional on its face.

Amicus Brief: AFP v. Becerra