Americans for Prosperity Foundation v. Bonta
Does California's requirement that tax-exempt charities and nonprofits disclose the identities of their major donors to the state Attorney General violate the First Amendment's protection of freedom of association?
The Decision
6-3 decision · Opinion by John G. Roberts Jr. · 2021
Majority Opinion— John G. Roberts Jr.concurring ↓dissent ↓
The Supreme Court ruled 6–3 that California's blanket requirement for charities to disclose their major donors violated the First Amendment. Chief Justice John Roberts authored the majority opinion. The Court struck down the requirement as facially unconstitutional — meaning it was invalid in all its applications, not just as applied to these two particular organizations.
The majority began by reaffirming that the First Amendment protects not just the right to speak, but also the right to associate with others for expressive purposes — and that compelled disclosure of affiliations and memberships can seriously burden that right by exposing supporters to retaliation and deterring them from associating in the first place. The Court then held that the appropriate test for evaluating such disclosure requirements is 'exacting scrutiny,' which demands that there be a substantial relation between the disclosure requirement and a sufficiently important governmental interest, and that the requirement be narrowly tailored to that interest. This was a significant doctrinal clarification, as the Court explicitly incorporated a narrow tailoring component into the exacting scrutiny framework.
Applying this standard, the Court assumed for purposes of its analysis that California did have an important interest in preventing charitable fraud. However, the majority found that the blanket, dragnet-style collection of every charity's Schedule B form was not narrowly tailored to serve that interest. The evidence at trial showed that the Attorney General's office almost never used the Schedule B data in its investigative work. Out of roughly 60,000 Schedule B forms collected, the state could point to barely any instances where the information had actually helped detect or prevent fraud. Meanwhile, California had repeatedly failed to maintain the confidentiality of these sensitive donor records — at one point, nearly 1,800 Schedule B forms were publicly accessible on the Attorney General's website due to a security lapse.
The Court concluded that California could pursue its interest in policing charities through far less burdensome means, such as requesting donor information on a case-by-case basis during specific investigations. Because the state's indiscriminate up-front collection of donor information was not narrowly tailored to its regulatory goals, the requirement was struck down on its face.
Concurring Opinions
Justice Clarence Thomas wrote separately to argue that the Court should have applied strict scrutiny — the most demanding constitutional standard — rather than exacting scrutiny, because compelled disclosure directly burdens core First Amendment freedoms. Justice Samuel Alito, joined by Justice Neil Gorsuch, wrote a concurrence expressing the view that the same result should apply to laws requiring disclosure of political campaign contributions, signaling that this decision could have implications for campaign finance transparency rules as well.
Dissenting Opinions
Sonia Sotomayorjoined by Stephen G. Breyer, Elena Kagan
The dissent argued that California's confidential collection of Schedule B forms was a reasonable, minimally burdensome regulatory tool that did not violate the First Amendment. Justice Sotomayor criticized the majority for applying an inappropriately demanding standard and for striking down the requirement on its face rather than limiting its analysis to these specific challengers.
- The dissent argued that the majority improperly imported a narrow tailoring requirement into exacting scrutiny, effectively turning it into something closer to strict scrutiny and making it far harder for the government to regulate in the public interest.
- Justice Sotomayor emphasized that California's requirement involved only confidential disclosure to the government — not public exposure — and that this distinction should matter greatly in assessing the burden on associational rights.
- The dissent warned that the decision could have sweeping consequences well beyond charitable regulation, potentially undermining disclosure and transparency laws across many areas of governance, including campaign finance regulation.
- The dissent also took issue with the majority's decision to strike down the requirement facially, arguing that only a small fraction of affected organizations had demonstrated any actual threat of donor harassment, and that an as-applied challenge would have been the more appropriate and restrained remedy.
Background & Facts
California law required every tax-exempt charitable organization that solicited donations in the state to file a copy of IRS Schedule B — a form that lists the names and addresses of significant donors (generally those who contribute $5,000 or more in a year) — with the state Attorney General's office. The state said it needed this information to efficiently investigate charitable fraud and enforce laws governing nonprofits. The Schedule B forms were supposed to be kept confidential and not released to the public.
Two organizations challenged this requirement. Americans for Prosperity Foundation (AFPF) is a nonprofit affiliated with the Koch network that promotes free-market economic policies. The Thomas More Law Center is a nonprofit public-interest law firm with a conservative Christian mission. Both organizations argued that if their donors' identities were turned over to the state, those donors would face harassment, intimidation, and threats — discouraging people from contributing and chilling the organizations' ability to carry out their missions. Both presented evidence that their supporters had already experienced threats and harassment in the past.
The cases were tried separately in federal district court in California. In both cases, the trial courts ruled in favor of the nonprofits, finding that California's disclosure requirement burdened First Amendment associational rights and was not justified by the state's needs. The Ninth Circuit Court of Appeals reversed both decisions, concluding that the disclosure requirement survived constitutional scrutiny because the state had an important interest in overseeing charities and the requirement was substantially related to that interest.
The Supreme Court agreed to hear both cases (which were consolidated) because the dispute raised a significant First Amendment question about compelled donor disclosure — a topic with implications for countless nonprofits and advocacy organizations across the country. The case also presented an opportunity for the Court to clarify the legal standard that applies when the government requires organizations to reveal who funds them.
The Arguments
California's blanket requirement that charities hand over their lists of major donors to the state violates the First Amendment right to freedom of association. Compelled disclosure of donor identities discourages people from supporting controversial or unpopular causes and subjects donors to potential harassment, intimidation, and retaliation.
- The Supreme Court has long recognized that compelled disclosure of group membership or support can chill the exercise of First Amendment rights, dating back to the landmark case NAACP v. Alabama in 1958.
- California's demand for Schedule B forms was vastly overbroad — the state collected tens of thousands of these forms but rarely, if ever, actually used the donor information to investigate fraud or wrongdoing.
- California had a poor track record of keeping the supposedly confidential Schedule B forms secure, with thousands of them having been inadvertently posted publicly on the Attorney General's website, proving that donors faced a real risk of exposure.
- Less restrictive alternatives existed — for example, the state could simply request donor information from specific organizations during targeted investigations rather than collecting it from every charity up front.
California's Schedule B requirement is a modest, confidential regulatory measure that serves the state's vital interest in policing charitable fraud and protecting donors from being victimized by dishonest organizations. It does not meaningfully burden First Amendment rights because the information is never made public.
- The state has a compelling and well-established interest in overseeing tax-exempt organizations and ensuring charitable donations are not misused or stolen.
- Having Schedule B information readily available allows investigators to quickly flag suspicious activity, identify self-dealing, and detect diversions of charitable assets without having to issue time-consuming subpoenas.
- The disclosure is made only to the government in confidence, not to the public, so it poses minimal risk to donors and is far less burdensome than public disclosure requirements the Court has upheld in the election context.