Americans For Prosperity Foundation v. Harris

Exacting scrutiny applies to compelled disclosure requirements; compelled disclosure of IRS Form 990 Schedule B alone does not constitute First Amendment injury.

Act, the California Attorney General is required to maintain a Registry of Charitable Trusts (Registry). In order for nonprofit organizations to maintain membership in the Registry and solicit tax-deductible donations from Californians, nonprofits must annually non-publically disclose IRS Form 990 Schedule B, which lists the names and addresses off individuals who have given more than $5,000 to the organization. Americans for Prosperity Foundation and the Thomas Moore Law Center, nonprofit organizations, sought a preliminary injunction against the California Attorney General to prohibit the attorney general’s collection of IRS Form 90 Schedule B on the grounds that the nonpublic disclosure requirement violated their First Amendment right to free speech and association by deterring individuals from donating. The Attorney General appealed the preliminary injunction orders and the Ninth Circuit held that the Attorney General’s compelled disclosure was facially constitutional and satisfied exacting scrutiny. On appeal, the Ninth Ciruct found that the district court abused its discretion by granting the injunctions without evidence indicating that the compelled disclosure would actually chill protected First Amendment activity or that there was a reasonable probability that the donors would face public or government harassment. Further, the panel found that the compelled disclosure requirement satisfied exacting scrutiny, because the government demonstrated that the requirements means were substantially related to sufficient important interest. The panel upheld the district court’s injunction against public disclosures, finding that the Charitable Purposes Act may require the Attorney General to publicly disclose the information, and that a continued injunction furthered public policy interests and was supported by the Attorney General. The panel vacated the injunctions and remanded the public injunction order to allow the district court to enter a new preliminary injunction. ORDERS VACATED.