Privacy and Free Speech: Government requirements that nonpolitical nonprofits disclose their donors strike at the First Amendment.

• Author: Sandefur, Timothy

In March 2012, then-California attorney general Kamala Harris surprised the managers of many nonprofit organizations by announcing a new rule: her office would no longer let them submit annual reports in a way that concealed personal information about their high-level donors (meaning people who gave more than $5,000). In previous years, the state had allowed nonprofits to file redacted forms to ensure against the accidental disclosure of donor names, addresses, and other personal data. But even though Harris's office still had other ways to get that information if necessary (for instance, through a subpoena), she now insisted that the paperwork be provided without redactions--a demand her successor, Xavier Becerra, kept in place.

That alarmed the nonprofits, including prominent free-market think tanks such as the Goldwater Institute and public interest law firms such as the Thomas More Law Center. Although Harris's office promised to keep this information private, government officials often release such data accidentally, or put it into online databases that can be hacked. Public disclosure can be dangerous because it exposes people to harassment or retaliation by others who disagree, sometimes violently, with the policies advanced by the organizations to which people donate.

That became clear in the wake of California's ballot proposition banning same-sex marriage, which was adopted in 2008. That law was declared unconstitutional two years later, but the controversy didn't end there. Under state law, anyone donating $ 100 to an initiative campaign must turn over his name, address, and employer's information to the government, which places it on a website. A 2009 report by the Heritage Foundation documented dozens of cases in which the initiative's supporters were targeted for everything from boycotts to physical attacks when their personal information was publicized by the state. Some militant opponents of the ban even used publicly available information to create maps of the home addresses of the initiative's donors, facilitating harassment, vandalism, and violence.

Free-market groups across the nation have experienced similar blowback. In 2008, a left-wing group called Accountable America used government-mandated donor disclosure information to send threatening letters to conservative donors because it said it hoped to "create a chilling effect that will dry up contributions." The directors of organizations such as the Kansas Policy Institute, Mackinac Center in Michigan, and Freedom Foundation in Washington state have experienced threatening phone calls, warnings left on their front lawns, and even being spat upon. But people on the left have been targeted, too. Planned Parenthood offices have sometimes been violently attacked. Members of Black Lives Matter and other progressive organizations have been subjected to everything from personal threats to online hacking. In 2013, an IRS official reported that she and her children were stalked by Tea Party members who learned her address from a government disclosure form after she donated to Barack Obama's presidential campaign.

Thus in 2012, when Harris ordered nonprofits to submit unredacted forms instead of the edited versions her office had previously accepted, the foundations were reluctant to trust her promise to keep the information secret. Their concern proved warranted: A few years later, a federal court found that the attorney general's office published nearly 1,800 of these confidential documents on its website shortly after making the demand, revealing what the judge called a "pervasive, recurring pattern" of information security breaches. "The Attorney General's current approach to confidentiality," he concluded, "obviously and profoundly risks disclosure" of personal information.

DANGER OF DISCLOSURE

Fears regarding the consequences of publicizing private donor information are nothing new. In the 1950s, southern state governments tried to force the NAACP and other anti-segregation groups to turn over their donor lists, claiming such information was necessary to ensure that these organizations were complying with state corporation and tax laws. The real reason, however, was intimidation: by publicly releasing the names and addresses of NAACP supporters, state officials hoped to silence civil rights advocates. To some extent, it worked. In June 1956, after the NAACP refused to comply, an Alabama judge fined it $10,000 and enjoined it from raising funds or recruiting members. Thar effectively disbanded the NAACP in Alabama for eight years.

In 1958, the U.S. Supreme Court unanimously ruled such mandates unconstitutional. "Compelled disclosure of affiliation with groups engaged in advocacy," it said, could easily be an "effective ... restraint on freedom of association ... particularly where a group espouses dissident beliefs."

Alabama's lawyers argued that any threats or harassment that NAACP supporters might experience were the fault of private parties, not the state, but the Court rejected that idea. To mandate the disclosure of this private information was inviting harassment. The justices even likened it to forcing NAACP members to "wear identifying arm-bands" that would attract hostility from the crowd. Such requirements not only risked intimidation and violence, but were also likely to "induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure."

Two years later, in Shelton v. Tucker, the justices reiterated the point in a case challenging an Arkansas law that forced schoolteachers to identify every organization to...