Sixty-three years ago, the Supreme Court stopped the state of Alabama from accessing the NAACP’s membership list, unanimously ruling that Black Americans’ right to freely associate without fear of reprisals outweighed state officials’ interest in keeping tabs on the group.

This year, the court could give that ruling a modern makeover in a case that asks whether the threat of “cancel culture,” rather than racism, justifies keeping states from tracking charities’ top donors.

“We’re asking the court to ... take the NAACP standard and bring it forward into the 21st century,” said John Bursch, who represents one of two charities that sued the state of California over its donor disclosure rules.

A wide range of nonprofits, including the ACLU, the Becket Fund for Religious Liberty and the NAACP, support this request and filed Supreme Court briefs saying the First Amendment right to free association includes a right to make confidential donations.

The organizations agree that California’s donor tracking efforts could put supporters of controversial charities at risk of harassment or even bodily harm, Bursch said.

“I’ve been practicing law for almost a quarter century and I’ve never seen so many (groups) from across the ideological spectrum agree on how a case should come out,” he said.

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But other legal experts, including California officials, argue that a low risk of data leaks doesn’t interfere with free association. They say states should be able to demand donor lists if doing so helps them root out fraud.

Donor information “helps regulators to detect wrongdoing, such as by assisting them in identifying when a donor uses a charity to funnel contributions to himself or when a charity misleads the donating public by overstating the extent of its programs,” California leaders argue in one of their legal briefs.

The Supreme Court will hear oral arguments in the case on Monday. Its eventual ruling, expected before the end of June, could redefine donor relations and even one day lead to new rules for election campaigns, legal experts say.

Keeping charities honest

Under both federal and state tax law, charitable and nonprofit organizations receive certain perks, including the ability to solicit tax-deductible donations. Their unique tax-exempt status leads some nonprofits to try to abuse the system, which is why government officials at all levels are on the lookout for fraud.

In order to aid its watchdog work, the IRS requires most charities to file an annual list of donors who contributed $5,000 or more. The form is for internal use only, and government employees, as well as anyone who accesses the information illegally, can face felony charges if confidential data is exposed.

“The IRS does not upload donor information into any sort of online database. It’s kept private in paper form,” said Bursch, senior counsel and vice president of appellate advocacy for the Alliance Defending Freedom.

California, however, did not have such stringent security measures in place when it, like the IRS, began asking charities to submit their donor lists. The Supreme Court case features two charities who, due to confidentiality concerns, refused to turn over their forms.

The charities — Thomas More Law Center and the Americans for Prosperity Foundation — were both highly concerned about what would happen if their donors’ names were accidentally released, Bursch said. They know their work on contentious issues like religious freedom, abortion rights and immigration reform puts staff members and supporters at risk of both online and in-person attacks.

“Clients and staff members have been threatened, harassed and there were even two assassination attempts on one,” he said.

California does offer an exemption to its disclosure rules to religious charities, Bursch noted. But many faith-related organizations, like Thomas More Law Center, don’t seem to qualify.

“How a public interest law firm that does religious liberty work can’t qualify — you’ve got me. That’s what forced the issue,” he said.

In its Supreme Court briefs, California admits it struggled in the past with protecting confidential data. But officials have since put new security measures in place, and they say the charities’ privacy concerns are overblown.

The law center and foundation say submitting donor lists “would subject their members or donors to harassment, threats or reprisals. But petitioners have not substantiated their claim,” state officials wrote in a brief.

California has a compelling interest in knowing where a charity gets funding, they say, arguing that nonprofits should have no problem giving the state the same information they share with the IRS.

The stakes

In 2018, the 9th Circuit Court of Appeals sided with California. Citing a legal standard developed in election-related cases, it said the state did not need to change its reporting rules.

Thomas More Law Center, the Americans for Prosperity Foundation and their supporters believe the appellate court was wrong to compare their situation to campaign finance law.

In the election context, the government has an important interest in understanding and then disclosing who finances campaigns, Bursch said. But, in the context of other types of donations, state officials can do the work they need to do without forcing all charities to preemptively hand over donor rolls.

“The attorney general’s only interest in collecting every charitable organization’s (list of donors) is, at best, future efficiency,” Thomas More Law Center says in one of its briefs. “Government efficiency is not a compelling justification to infringe First Amendment rights.”

California leaders dispute this characterization of their work, noting that reviews of donor information sometimes spark broader investigations.

“The evidence (shows) that state charity regulators routinely review (donor) information, along with other documents, in evaluating complaints against charities,” the state’s brief says.

By taking the case, the Supreme Court agreed to reconsider the 9th Circuit’s decision. The justices could decide, as they did in the 1958 NAACP case, that state governments can’t collect sensitive information unless they clearly need it and can’t access it in a less invasive way.

That 1958 ruling sent a message about how careful the government must be to avoid interfering with the right of free association, nonprofit leaders say, adding that the importance of government restraint has only grown in the past 63 years.

“This is not the time or climate to weaken First Amendment rights to anonymity. Social and political discord have reached a nationwide fever. Perceived ideological opponents are hunted, vilified and targeted in ways that were unthinkable before the dawn of the internet,” the Americans for Prosperity Foundation argues in one of its Supreme Court briefs.

If the Supreme Court doesn’t step in to block California’s disclosure rules, many donors will likely cease supporting controversial charities out of fear of exposure, Bursch said. He and others believe the whole country would suffer as a result.

“Historic strides have often been achieved by private groups espousing ideas that others may (at a particular time and place) violently oppose. Our country would be far less just — and the public less diverse — if Americans could not support causes anonymously,” the Americans for Prosperity Foundation argues in its brief.

However, if the Supreme Court sides with the charities, it would be harder for state officials to follow the money that shapes American life, a group of Democratic U.S. senators argue in a brief filed in support of California.

“This appeal is just the latest move in the steady and methodical campaign pursued by powerful interests to both cement and obscure their influence over the public sphere,” they say.