Another blow to charitable organizations’ First Amendment rights took place when the federal Ninth Circuit Court of Appeals ruled on December 29, 2015, that the California Attorney General’s mandatory donor disclosure requirements are constitutional “as applied” within the context of state charitable solicitation filing requirements.
The APF litigation follows on the heels of a similar loss by the Center for Competitive Politics (CCP). In the CCP case, the Ninth Circuit ruled that compelled disclosure of donor information by itself is insufficient to constitute a First Amendment injury compelling enough to foreclose such governmental intrusion. The U.S. Supreme Court denied certiorari in November 2015. APF (along with its companion plaintiff Thomas More Law Center) asserted a similar First Amendment claim based on evidence showing that such mandatory disclosures actually chill speech and result in donor harassment. This increased level of harm is apparently constitutionally insufficient as well, at least according to the Ninth Circuit.
Both cases began when the organizations challenged the California Attorney General (AG)’s demand to submit their IRS Form 990 Schedule B as part of their annual AG reports, in connection with their charitable solicitation activity in California. The AG’s demand resulted from a 2013 change in its policy; consistent with most other states, the California AG’s office had never before required such disclosures. Form 990’s Schedule B requires nonprofits to list major donors’ names, addresses, and amounts given. The IRS collects this information but is legally required to keep it confidential. Both civil and criminal sanctions are available for improper disclosure of such information, and nonprofits may legally redact such information in their publicly available Form 990s.