OPINION: Supreme Court’s Donor Privacy Ruling Affirms Freedoms On Which Our Republic Was Founded

In our increasingly polarized cultural climate, the Supreme Court’s recent decision in Thomas More Law Center v. Bonta and Americans for Prosperity Foundation v. Bonta was a welcome relief. Having represented Thomas More Law Center in the case, I continue to be struck by the significance of the decision since the court issued it on July 1.

By invalidating California’s blanket demand for confidential, charitable-donor information, the high court has protected the donor privacy and free association rights of all Americans. And while some commentators have framed the 6-3 decision as a partisan one, the briefs filed with the court supporting this decision—including briefs from the American Civil Liberties Union, the NAACP, the Human Rights Campaign, and PETA—tell a very different story.

The challenged regulation in this case was the California Attorney General’s Office’s blanket demand that all nonprofit organizations fundraising in that state, including Thomas More, turn over the names and addresses of their top donors, even if those donors live outside of California. That means private information of donors from every state would be in the hands of the California government, when California has a documented history of leaking such information like a sieve.

California defended its blanket disclosure mandate by claiming it only needed to show a “substantial relation” between the mandate and its interest in policing charities. But the Supreme Court held that wasn’t enough.

Quoting a civil-rights-era case called NAACP v. Alabama, the Supreme Court clarified, “Narrow tailoring is crucial where First Amendment activity is chilled—even if indirectly—‘[b]ecause First Amendment freedoms need breathing space to survive.’” That means California had to justify its blanket demand for donor information “in light of any less intrusive alternatives” the state refused to consider. And California fell “far short” of making that showing.

It must also be noted that, as the fact finding at the district court found several years ago, the California Attorney General’s Office has no documented problem obtaining a charity’s Schedule B with a specific request when it needs that information. Accordingly, Chief Justice John Roberts wrote for the majority that “[i]n reality, then, California’s interest is less in investigative fraud and more in ease of administration…. But the prime objective of the First Amendment is not efficiency.” In short, government officials cannot jeopardize our rights, such as the freedom of association, for mere convenience.

Chief Justice Roberts further noted there was a “dramatic mismatch” between California’s interest in investigating the small number of charities that commit wrongdoing and its “blanket demand” for “sensitive donor information from tens of thousands of charities each year.” When the government imposes demands to police bad actors, it needs to target those actors—not force countless innocent Americans across the country to abide by onerous restrictions like California’s donor disclosure regulation.

The facts of this case clearly show why donor privacy is a fundamental right that should unite Americans of all beliefs. That’s why organizations across the ideological spectrum—including the ACLUthe NAACP, the Human Rights CampaignPETA, and the Cato Institute—signed onto amicus briefs urging the Supreme Court to side with Thomas More Law Center and Americans for Prosperity Foundation.

The small cadre of commentators who have rushed to cast the court’s opinion in a partisan light are out of step with the most reputable left-wing advocacy organizations in the country, and clearly mistaken. Regardless of your views on abortion, religion, or any other issue, you have a right to support like-minded organizations as you see fit—including privately. That’s a freedom on which all Americans should be able to agree.

The Supreme Court has reminded us that the sturdy shelter of the First Amendment lies at the bedrock of our country’s founding. Organizations across the ideological spectrum recognized that in this case, and Americans can unite in celebrating this important victory for freedom.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom (@Alliance Defends), which represented Thomas More Law Center in Thomas More Law Center v. Bonta. Bursch served as Michigan’s solicitor general from 2011-2013.

The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.

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