Donor privacy is back in front of the United States Supreme Court. First Choice Women’s Resource Centers v. Platkin centers on a sweeping “investigatory subpoena” that requires a pro-life pregnancy center to disclose all of its donors to the pro-choice New Jersey Attorney General, who says he wants to protect against consumer fraud for those who use the centers. NTUF filed an amicus curiae (“friend of the court”) brief to apprise the Supreme Court of the need to write a broad opinion protecting donor privacy. Our brief highlights the growing trend of “lawfare,” demanding donor lists as a means of intimidation and harassment, including against taxpayers.
The case raises some serious issues. New Jersey served a subpoena demanding the pregnancy center’s donor list, and one issue is whether such a subpoena is instantly enforceable (and therefore, ignoring it means instant contempt of court). A second issue is whether the pregnancy center has to fight the subpoena’s donor list demand on the home turf of the attorney general—the state courts of New Jersey—or if the federal right to privacy of association under the First Amendment can be heard instead in federal court. This is significant because the U.S. Supreme Court takes far more cases from lower federal courts than it reviews state supreme court cases.
While we believe that federal rights ought to be heard in federal court, our amicus brief focused on how important the “exacting scrutiny” standard is for protecting donor lists of nonprofits. We showed that even routine business regulation laws have been abused to demand donor lists. We also list First Amendment case law from the Supreme Court and highlight that it always protects donor privacy. Finally, we warn that this case is part of a disturbing pattern of donor list demands in response to challenging government policies.
Under “exacting scrutiny,” as most recently articulated in Americans for Prosperity Foundation v. Bonta, the government must show “that there be a substantial relation between the disclosure requirement and a sufficiently important governmental interest” and that “the disclosure requirement be narrowly tailored to the interest it promotes.” This is a tough test to satisfy, and New Jersey’s novel use of consumer protection laws has not met this burden.
Nor is calling this simply a regulation of business enough to satisfy the demand on donor lists. The right to donor privacy is protected by a long line of cases—but each case was theoretically just about business regulation and paperwork. The NAACP had to fight a foreign corporation registration law that was used to demand its donor list. In another case, it was a city business license (and its city tax) that was used as a pretext for demanding the NAACP’s donor list. The examples continue. But in each instance, the Supreme Court saw through the pretexts and applied the First Amendment’s exacting scrutiny to the donor list demands.
Importantly, New Jersey’s demand in this case is not unique. Demands for donor lists for taking positions against the government are part of a growing trend. For example, NTU is currently defending the privacy of its members in California in a challenge to that state’s retroactive and confusing taxation calculation scheme. The case, National Taxpayers Union v. California Franchise Tax Board, is in its early stages. But the state Franchise Tax Board used the discovery process to demand the complete member and donor list of NTU. California’s Attorney General’s office filed multiple motions, demands of President Pete Sepp, and other avenues for this list. NTU successfully fought and will continue to fight such broad donor disclosure demands. This whole situation in California is contrary to the long tradition of associational standing, which allows groups to assert the same arguments as any of their members. NTU had long protected the right of organizations to stand in the shoes of their members, specifically winning on that issue before the U.S. Court of Appeals for the D.C. Circuit 30 years ago.
The chilling effect of threatened disclosure is real. When faced with the threat of compelled disclosure, prospective members decline to join, donors close their pocketbooks, and advocacy groups reconsider their speech in the future. State officials are using novel applications of otherwise unobjectionable laws in order to get the supporters of causes. This Court should apply its already-existing law to assure an end to these shenanigans
The case is First Choice Women’s Resource Centers, Inc. v. Platkin, U.S. No. 24-781.