California’s Assault On Fundraising Has National Impact

On the anniversary of the September 11 attack on the United States, the United States Court of Appeals for the Ninth Circuit sitting in San Francisco reversed a lower court decision that had entered a permanent injunction against the State of California forcing two 501(c)(3) nonprofits to reveal their list of donors to the Attorney General of the State of California.

A variety of nonprofits filed amicus (friend of the court) briefs in the case Americans For Prosperity Foundation v. Xavier Becerra, in his official capacity as attorney general of California, including the NAACP Legal Defense and Education Fund which had won a similar case in the Supreme Court of the United States in 1958 (NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)) when the state government of Alabama attempted to secure a list of donors to NAACP.

Apparently, this precedent was insufficient to deter the Ninth Circuit’s ruling. Writing for the panel of the Ninth Circuit, Judge Raymond C. Fisher wrote: “Considered as a whole, the plaintiffs’ evidence shows that some individuals who have or would support the plaintiffs may be deterred from contributing if the plaintiffs are required to submit their Schedule Bs to the Attorney General. The evidence, however, shows at most a modest impact on contributions. . . . The mere possibility that some contributors may choose to withhold their support does not establish a substantial burden on First Amendment rights.”

When presented with evidence of prior failures of the California attorney general to keep this information confidential, the Ninth Circuit decided: “We agree that, in the past, the Attorney General’s office has not maintained Schedule B information as securely as it should have, and we agree with the plaintiffs that this history raises a serious concern.

The state’s past confidentiality lapses are of two varieties: first, human error when Registry staff miscoded Schedule B forms during uploading; and second, a software vulnerability that failed to block access to the Foundation’s expert, James McClave, as he probed the registry’s servers for flaws during this litigation.”

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