We All Win When Donor Privacy is Protected | Opinion

Back when Kamala Harris was attorney general of California, she did her best to invade the privacy rights of donors to nonprofit organizations. It did not matter that those very same privacy rights had protected members and supporters of the NAACP and other nonprofit groups in the 1950s, '60s and '70s.

Fortunately, a stunning cross-section of advocacy groups—from the ACLU on the Left to my firm, Mountain States Legal Foundation, on the Right—teamed up to fight back against Harris' unconstitutional conduct. Conservative, liberal, progressive or libertarian—all saw the danger in California's demand.

Even the Biden administration distanced itself from the now-vice president's actions, arguing that the Supreme Court should send the case back to the lower courts for another round of review. Instead, however, the Court ruled 6-3 in Americans for Prosperity Foundation v. Bonta ("AFPF") in favor of robust privacy interests, and it did so in a big way that will have a major impact on future cases.

In a free society, the government cannot keep track of what every citizen does or what groups or causes a person supports. Yet California tried to track the ideological views of people nationwide by requiring charities disclose their IRS Form 990 Schedule B—the list of their donors—as a precondition for being able to operate in the state. It failed to prove to the Court that it needed the lists to enforce its laws. Worse, the state claimed it would keep the donor names confidential. But a federal trial uncovered that California had carelessly exposed thousands of charity donor lists on a public website.

The Supreme Court rejected California's authoritarian instincts. The First Amendment has long been understood to guarantee the right to peacefully assemble—including in private. The right to private association has been a key protection for groups on the outside of mainstream popular opinion—whether that's the NAACP in Alabama in 1958 or the organizers of the first Pride events in the 1970s or groups trying to protect traditional family values in California in the early 2000s. The First Amendment offers its most important protections to those who are unpopular in any given time and place.

John Roberts
U.S. Supreme Court Justice John Roberts arrives at the U.S. Capitol for the Senate impeachment trial of U.S. President Donald Trump, on January 31, 2020 in Washington, DC. Mark Wilson/Getty

Privacy, especially in the digital age, is all or nothing. Either a person's private information is protected, or someone will find it eventually. For decades, the nation's high Court has made clear that states violate the First Amendment when they warehouse sensitive donor information. The AFPF decision is just one more in a long line of such cases, mostly won by civil rights groups decades ago.

The Supreme Court demanded that the government name a substantial interest in housing such vast amounts of data on donors, and show that the law was "narrowly tailored" to that interest. California failed that test. Before this case, many states, like California, were getting away with saying they had some "substantial interest" in collecting such data, without ever showing how they used the information or that the demand for the data was tailored to their purported interest.

All California wanted was to have the information "just in case"—it didn't use the information to detect charity fraud or other crimes. But making life easier for a government bureaucrat isn't a strong enough reason to invade people's privacy and eavesdrop on what causes they support. As Chief Justice John Roberts wrote in the Court's majority opinion, "Mere administrative convenience does not remotely 'reflect the seriousness of the actual burden' that the demand for Schedule Bs imposes on donors' association rights." If the state needed the information for a specific investigation, it still has subpoena powers and other law enforcement tools at its disposal for that purpose.

Many on the Left decried the Supreme Court's decision, claiming it puts democracy at risk. Even the ACLU's litigation director—who signed the organization's brief in support of privacy rights—reflexively criticized the decision. Much of the outcry reflects a fear that AFPF will weaken campaign finance disclosure laws. But the Court carefully noted that this was no campaign finance case. The plaintiffs were charitable organizations barred by federal law from participating in campaigns.

Rather than looking at this case through a purely partisan lens, think of it as a win for the right to privacy and protection from the watchful eyes of the government. It doesn't matter which political party controls the collection of data; leaders should not be able to gather lists of what regular citizens are doing or thinking. The right to be left alone and to peaceably assemble, even in private, is sacrosanct to our nation. All the Supreme Court did is affirm that it is still so. If that puts at risk other invasions of privacy, then perhaps leaders should rethink what the state's interest is in collecting data, and whether their rules are narrowly tailored to that need.

Tyler Martinez is a Senior Attorney at Mountain States Legal Foundation where he practices in the area of protecting political speech and association rights.

The views expressed in this article are the writer's own.