Americans for Prosperity Foundation v. Bonta ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
AMERICANS FOR PROSPERITY FOUNDATION v.
BONTA, ATTORNEY GENERAL OF CALIFORNIA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–251. Argued April 26, 2021—Decided July 1, 2021*
Charitable organizations soliciting funds in California must disclose the
identities of their major donors to the state Attorney General’s Office.
Charities generally must register with the Attorney General and re-
new their registrations annually. The Attorney General requires char-
ities renewing their registrations to file copies of their Internal Reve-
nue Service Form 990, a form on which tax-exempt organizations
provide information about their mission, leadership, and finances.
Schedule B to Form 990—the document that gives rise to the present
dispute—requires organizations to disclose the names and addresses
of their major donors. The State contends that having this information
readily available furthers its interest in policing misconduct by chari-
ties.
The petitioners are two tax-exempt charities that solicit contribu-
tions in California. Since 2001, each petitioner has renewed its regis-
tration and has filed a copy of its Form 990 with the Attorney General,
as required by Cal. Code Regs., tit. 11, §301. To preserve their donors’
anonymity, however, the petitioners have declined to file unredacted
Schedule Bs, and they had until recently faced no consequences for
noncompliance. In 2010, the State increased its enforcement of chari-
ties’ Schedule B disclosure obligations, and the Attorney General ulti-
mately threatened the petitioners with suspension of their registra-
tions and fines for noncompliance. The petitioners each responded by
——————
* Together with No. 19–255, Thomas More Law Center v. Bonta, also
on certiorari to the same court.
2 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Syllabus
filing suit in District Court, alleging that the compelled disclosure re-
quirement violated their First Amendment rights and the rights of
their donors. Disclosure of their Schedule Bs, the petitioners alleged,
would make their donors less likely to contribute and would subject
them to the risk of reprisals. Both organizations challenged the con-
stitutionality of the disclosure requirement on its face and as applied
to them. In each case, the District Court granted preliminary injunc-
tive relief prohibiting the Attorney General from collecting the peti-
tioners’ Schedule B information. The Ninth Circuit vacated and re-
manded, reasoning that Circuit precedent required rejection of the
petitioners’ facial challenge. Reviewing the petitioners’ as-applied
claims under an “exacting scrutiny” standard, the panel narrowed the
District Court’s injunction, and it allowed the Attorney General to col-
lect the petitioners’ Schedule Bs so long as they were not publicly dis-
closed. On remand, the District Court held bench trials in both cases,
after which it entered judgment for the petitioners and permanently
enjoined the Attorney General from collecting their Schedule Bs. Ap-
plying exacting scrutiny, the District Court held that disclosure of
Schedule Bs was not narrowly tailored to the State’s interest in inves-
tigating charitable misconduct. The court found little evidence that
the Attorney General’s investigators relied on Schedule Bs to detect
charitable fraud, and it determined that the disclosure regime bur-
dened the associational rights of donors. The District Court also found
that California was unable to ensure the confidentiality of donors’ in-
formation. The Ninth Circuit again vacated the District Court’s in-
junctions, and this time reversed the judgments and remanded for en-
try of judgment in favor of the Attorney General. The Ninth Circuit
held that the District Court had erred by imposing a narrow tailoring
requirement. And it reasoned that the disclosure regime satisfied ex-
acting scrutiny because the up-front collection of charities’ Schedule
Bs promoted investigative efficiency and effectiveness. The panel also
found that the disclosure of Schedule Bs would not meaningfully bur-
den donors’ associational rights. The Ninth Circuit denied rehearing
en banc, over a dissent.
Held: The judgment is reversed, and the cases are remanded.
903 F. 3d 1000, reversed and remanded.
THE CHIEF JUSTICE delivered the opinion of the Court with respect
to all but Part II–B–1, concluding that California’s disclosure require-
ment is facially invalid because it burdens donors’ First Amendment
rights and is not narrowly tailored to an important government inter-
est. Pp. 6–7, 9–19.
(a) The Court reviews the petitioners’ First Amendment challenge
Cite as: 594 U. S. ____ (2021) 3
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to California’s compelled disclosure requirement with the understand-
ing that “compelled disclosure of affiliation with groups engaged in ad-
vocacy may constitute as effective a restraint on freedom of association
as [other] forms of governmental action.” NAACP v. Alabama ex rel.
Patterson, 357 U. S. 449, 462. NAACP v. Alabama did not phrase in
precise terms the standard of review that applies to First Amendment
challenges to compelled disclosure. In Buckley v. Valeo, 424 U. S. 1, 64
(per curiam), the Court articulated an “exacting scrutiny” standard,
which requires “a substantial relation between the disclosure require-
ment and a sufficiently important governmental interest,” Doe v. Reed,
561 U. S. 186, 196. The parties dispute whether exacting scrutiny ap-
plies in these cases, and if so, whether that test imposes a least restric-
tive means requirement similar to the one imposed by strict scrutiny.
The Court concludes that exacting scrutiny requires that a govern-
ment-mandated disclosure regime be narrowly tailored to the govern-
ment’s asserted interest, even if it is not the least restrictive means of
achieving that end. The need for narrow tailoring was set forth early
in the Court’s compelled disclosure cases. In Shelton v. Tucker, 364
U. S. 479, the Court considered an Arkansas statute that required
teachers to disclose every organization to which they belonged or con-
tributed. The Court acknowledged the importance of “the right of a
State to investigate the competence and fitness of those whom it hires
to teach in its schools,” and it distinguished prior decisions that had
found “no substantially relevant correlation between the governmental
interest asserted and the State’s effort to compel disclosure.” Id., at
485. But the Court invalidated the Arkansas statute because even a
“legitimate and substantial” governmental interest “cannot be pursued
by means that broadly stifle fundamental personal liberties when the
end can be more narrowly achieved.” Id., at 488. Shelton stands for
the proposition that a substantial relation to an important interest is
not enough to save a disclosure regime that is insufficiently tailored.
Where exacting scrutiny applies, the challenged requirement must be
narrowly tailored to the interest it promotes. Pp. 6–7, 9–11.
(b) California’s blanket demand that all charities disclose Schedule
Bs to the Attorney General is facially unconstitutional. Pp. 12–19.
(1) The Ninth Circuit did not impose a narrow tailoring require-
ment to the relationship between the Attorney General’s demand for
Schedule Bs and the identified governmental interest. That was error
under the Court’s precedents. And properly applied, the narrow tai-
loring requirement is not satisfied by California’s disclosure regime.
In fact, a dramatic mismatch exists between the interest the Attorney
General seeks to promote and the disclosure regime that he has imple-
mented.
The Court does not doubt the importance of California’s interest in
4 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Syllabus
preventing charitable fraud and self-dealing. But the enormous
amount of sensitive information collected through Schedule Bs does
not form an integral part of California’s fraud detection efforts. Cali-
fornia does not rely on Schedule Bs to initiate investigations, and evi-
dence at trial did not support the State’s concern that alternative
means of obtaining Schedule B information—such as a subpoena or
audit letter—are inefficient and ineffective compared to up-front col-
lection. In reality, California’s interest is less in investigating fraud
and more in ease of administration. But “the prime objective of the
First Amendment is not efficiency.” McCullen v. Coakley, 573 U. S.
464, 495. Mere administrative convenience does not remotely “reflect
the seriousness of the actual burden” that the demand for Schedule Bs
imposes on donors’ association rights. Reed, 561 U. S., at 196 (internal
quotation marks omitted). Pp. 12–15.
(2) In the First Amendment context, the Court has recognized a
“type of facial challenge, whereby a law may be invalidated as over-
broad if a substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.” United
States v. Stevens, 559 U. S. 460, 473 (internal quotation marks omit-
ted). The Attorney General’s disclosure requirement is plainly over-
broad under that standard. The regulation lacks any tailoring to the
State’s investigative goals, and the State’s interest in administrative
convenience is weak. As a result, every demand that might deter as-
sociation “creates an unnecessary risk of chilling” in violation of the
First Amendment. Secretary of State of Md. v. Joseph H. Munson Co.,
467 U. S. 947, 968. It does not make a difference in these cases if there
is no disclosure to the public, see Shelton, 364 U. S., at 486, if some
donors do not mind having their identities revealed, or if the relevant
donor information is already disclosed to the IRS as a condition of fed-
eral tax-exempt status. California’s disclosure requirement imposes a
widespread burden on donors’ associational rights, and this burden
cannot be justified on the ground that the regime is narrowly tailored
to investigating charitable wrongdoing, or that the State’s interest in
administrative convenience is sufficiently important. Pp. 15–19.
ROBERTS, C. J., delivered the opinion of the Court, except as to Part II–
B–1. KAVANAUGH and BARRETT, JJ., joined that opinion in full, ALITO
and GORSUCH, JJ., joined except as to Part II–B–1, and THOMAS, J.,
joined except as to Parts II–B–1 and III–B. THOMAS, J., filed an opinion
concurring in part and concurring in the judgment. ALITO, J., filed an
opinion concurring in part and concurring in the judgment, in which GOR-
SUCH, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which
BREYER and KAGAN, JJ., joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–251 and 19–255
_________________
AMERICANS FOR PROSPERITY FOUNDATION,
PETITIONER
19–251 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
THOMAS MORE LAW CENTER, PETITIONER
19–255 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 1, 2021]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court, except as to Part II–B–1.
To solicit contributions in California, charitable organi-
zations must disclose to the state Attorney General’s Office
the identities of their major donors. The State contends
that having this information on hand makes it easier to po-
lice misconduct by charities. We must decide whether Cal-
ifornia’s disclosure requirement violates the First Amend-
ment right to free association.
I
The California Attorney General’s Office is responsible
for statewide law enforcement, including the supervision
and regulation of charitable fundraising. Under state law,
2 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
the Attorney General is authorized to “establish and main-
tain a register” of charitable organizations and to obtain
“whatever information, copies of instruments, reports, and
records are needed for the establishment and maintenance
of the register.” Cal. Govt. Code Ann. §12584 (West 2018).
In order to operate and raise funds in California, charities
generally must register with the Attorney General and re-
new their registrations annually. §§12585(a), 12586(a).
Over 100,000 charities are currently registered in the State,
and roughly 60,000 renew their registrations each year.
California law empowers the Attorney General to make
rules and regulations regarding the registration and re-
newal process. §§12585(b), 12586(b). Pursuant to this reg-
ulatory authority, the Attorney General requires charities
renewing their registrations to file copies of their Internal
Revenue Service Form 990, along with any attachments
and schedules. See Cal. Code Regs., tit. 11, §301 (2020).
Form 990 contains information regarding tax-exempt or-
ganizations’ mission, leadership, and finances. Schedule B
to Form 990—the document that gives rise to the present
dispute—requires organizations to disclose the names and
addresses of donors who have contributed more than $5,000
in a particular tax year (or, in some cases, who have given
more than 2 percent of an organization’s total contribu-
tions). See 26 CFR §§1.6033–2(a)(2)(ii)(f ), (iii) (2020).
The petitioners are tax-exempt charities that solicit con-
tributions in California and are subject to the Attorney
General’s registration and renewal requirements. Ameri-
cans for Prosperity Foundation is a public charity that is
“devoted to education and training about the principles of a
free and open society, including free markets, civil liberties,
immigration reform, and constitutionally limited govern-
ment.” Brief for Petitioner Foundation 10. Thomas More
Law Center is a public interest law firm whose “mission is
to protect religious freedom, free speech, family values, and
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
the sanctity of human life.” Brief for Petitioner Law Cen-
ter 4. Since 2001, each petitioner has renewed its registra-
tion and has filed a copy of its Form 990 with the Attorney
General, as required by Cal. Code Regs., tit. 11, §301. Out
of concern for their donors’ anonymity, however, the peti-
tioners have declined to file their Schedule Bs (or have filed
only redacted versions) with the State.
For many years, the petitioners’ reluctance to turn over
donor information presented no problem because the Attor-
ney General was not particularly zealous about collecting
Schedule Bs. That changed in 2010, when the California
Department of Justice “ramped up its efforts to enforce
charities’ Schedule B obligations, sending thousands of de-
ficiency letters to charities that had not complied with the
Schedule B requirement.” Americans for Prosperity Foun-
dation v. Becerra, 903 F. 3d 1000, 1006 (CA9 2018). The
Law Center and the Foundation received deficiency letters
in 2012 and 2013, respectively. When they continued to re-
sist disclosing their contributors’ identities, the Attorney
General threatened to suspend their registrations and fine
their directors and officers.
The petitioners each responded by filing suit in the Cen-
tral District of California. In their complaints, they alleged
that the Attorney General had violated their First Amend-
ment rights and the rights of their donors. The petitioners
alleged that disclosure of their Schedule Bs would make
their donors less likely to contribute and would subject
them to the risk of reprisals. Both organizations challenged
the disclosure requirement on its face and as applied to
them.
In each case, the District Court granted preliminary in-
junctive relief prohibiting the Attorney General from col-
lecting their Schedule B information. Americans for Pros-
perity Foundation v. Harris, 2015 WL 769778 (CD Cal.,
Feb. 23, 2015); App. to Pet. for Cert. in No. 19–255, pp. 90a–
96a. The Ninth Circuit vacated and remanded. Americans
4 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
for Prosperity Foundation v. Harris, 809 F. 3d 536 (2015)
(per curiam). The court held that it was bound by Circuit
precedent to reject the petitioners’ facial challenge. Id., at
538 (citing Center for Competitive Politics v. Harris, 784
F. 3d 1307, 1317 (2015)). And reviewing the petitioners’ as-
applied claims under an “exacting scrutiny” standard, the
panel narrowed the injunction, allowing the Attorney Gen-
eral to collect the petitioners’ Schedule Bs so long as he did
not publicly disclose them. 809 F. 3d, at 538, 543.
On remand, the District Court held bench trials in both
cases, after which it entered judgment for the petitioners
and permanently enjoined the Attorney General from col-
lecting their Schedule Bs. Americans for Prosperity Foun-
dation v. Harris, 182 F. Supp. 3d 1049 (CD Cal. 2016);
Thomas More Law Center v. Harris, 2016 WL 6781090 (CD
Cal., Nov. 16, 2016). Applying exacting scrutiny, the Dis-
trict Court held that disclosure of Schedule Bs was not nar-
rowly tailored to the State’s interest in investigating chari-
table misconduct. The court credited testimony from
California officials that Schedule Bs were rarely used to au-
dit or investigate charities. And it found that even where
Schedule B information was used, that information could
be obtained from other sources.
The court also determined that the disclosure regime bur-
dened the associational rights of donors. In both cases, the
court found that the petitioners had suffered from threats
and harassment in the past, and that donors were likely to
face similar retaliation in the future if their affiliations be-
came publicly known. For example, the CEO of the Foun-
dation testified that a technology contractor working at the
Foundation’s headquarters had posted online that he was
“inside the belly of the beast” and “could easily walk into
[the CEO’s] office and slit his throat.” 182 F. Supp. 3d, at
1056. And the Law Center introduced evidence that it had
received “threats, harassing calls, intimidating and obscene
emails, and even pornographic letters.” 2016 WL 6781090,
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
*4.
The District Court also found that California was unable
to ensure the confidentiality of donors’ information. During
the course of litigation, the Foundation identified nearly
2,000 confidential Schedule Bs that had been inadvertently
posted to the Attorney General’s website, including dozens
that were found the day before trial. One of the Founda-
tion’s expert witnesses also discovered that he was able to
access hundreds of thousands of confidential documents on
the website simply by changing a digit in the URL. The
court found after trial that “the amount of careless mistakes
made by the Attorney General’s Registry is shocking.” 182
F. Supp. 3d, at 1057. And although California subse-
quently codified a policy prohibiting disclosure, Cal. Code
Regs., tit. 11, §310(b)—an effort the District Court de-
scribed as “commendable”—the court determined that
“[d]onors and potential donors would be reasonably justi-
fied in a fear of disclosure given such a context” of past
breaches. 2016 WL 6781090, *5.
The Ninth Circuit again vacated the District Court’s in-
junctions, and this time reversed the judgments and re-
manded for entry of judgment in favor of the Attorney Gen-
eral. 903 F. 3d 1000. The court held that the District Court
had erred by imposing a narrow tailoring requirement. Id.,at 1008–1009. And it reasoned that the disclosure regime
satisfied exacting scrutiny because the up-front collection
of charities’ Schedule Bs promoted investigative efficiency
and effectiveness. Id., at 1009–1012. The panel also found
that the disclosure of Schedule Bs would not meaningfully
burden donors’ associational rights, in part because the At-
torney General had taken remedial security measures to fix
the confidentiality breaches identified at trial. Id., at 1013–
1019.
The Ninth Circuit denied rehearing en banc. Americans
for Prosperity Foundation v. Becerra, 919 F. 3d 1177 (2019).
Judge Ikuta dissented, joined by four other judges. In her
6 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
view, the panel had impermissibly overridden the District
Court’s factual findings and evaluated the disclosure re-
quirement under too lenient a degree of scrutiny. Id., at
1184–1187.
We granted certiorari. 592 U. S. ___ (2021).
II
A
The First Amendment prohibits government from
“abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” This Court
has “long understood as implicit in the right to engage in
activities protected by the First Amendment a correspond-
ing right to associate with others.” Roberts v. United States
Jaycees, 468 U. S. 609, 622 (1984). Protected association
furthers “a wide variety of political, social, economic, edu-
cational, religious, and cultural ends,” and “is especially im-
portant in preserving political and cultural diversity and in
shielding dissident expression from suppression by the ma-
jority.” Ibid. Government infringement of this freedom
“can take a number of forms.” Ibid. We have held, for ex-
ample, that the freedom of association may be violated
where a group is required to take in members it does not
want, see id., at 623, where individuals are punished for
their political affiliation, see Elrod v. Burns, 427 U. S. 347,
355 (1976) (plurality opinion), or where members of an or-
ganization are denied benefits based on the organization’s
message, see Healy v. James, 408 U. S. 169, 181–182 (1972).
We have also noted that “[i]t is hardly a novel perception
that compelled disclosure of affiliation with groups engaged
in advocacy may constitute as effective a restraint on free-
dom of association as [other] forms of governmental action.”
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462
(1958). NAACP v. Alabama involved this chilling effect in
its starkest form. The NAACP opened an Alabama office
Cite as: 594 U. S. ____ (2021) 7
Opinion
Opinion ofOBERTS
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, C. J.
that supported racial integration in higher education and
public transportation. Id., at 452. In response, NAACP
members were threatened with economic reprisals and vio-
lence. Id., at 462. As part of an effort to oust the organiza-
tion from the State, the Alabama Attorney General sought
the group’s membership lists. Id., at 452–453. We held that
the First Amendment prohibited such compelled disclosure.
Id., at 466. We explained that “[e]ffective advocacy of both
public and private points of view, particularly controversial
ones, is undeniably enhanced by group association,” id., at
460, and we noted “the vital relationship between freedom
to associate and privacy in one’s associations,” id., at 462.
Because NAACP members faced a risk of reprisals if their
affiliation with the organization became known—and be-
cause Alabama had demonstrated no offsetting interest
“sufficient to justify the deterrent effect” of disclosure, id.,at 463—we concluded that the State’s demand violated the
First Amendment.
B
1
NAACP v. Alabama did not phrase in precise terms the
standard of review that applies to First Amendment chal-
lenges to compelled disclosure. We have since settled on a
standard referred to as “exacting scrutiny.” Buckley v.
Valeo, 424 U. S. 1, 64 (1976) (per curiam). Under that
standard, there must be “a substantial relation between the
disclosure requirement and a sufficiently important gov-
ernmental interest.” Doe v. Reed, 561 U. S. 186, 196 (2010)
(internal quotation marks omitted). “To withstand this
scrutiny, the strength of the governmental interest must re-
flect the seriousness of the actual burden on First Amend-
ment rights.” Ibid. (internal quotation marks omitted).
Such scrutiny, we have held, is appropriate given the “de-
terrent effect on the exercise of First Amendment rights”
8 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
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that arises as an “inevitable result of the government’s con-
duct in requiring disclosure.” Buckley, 424 U. S., at 65.
The Law Center (but not the Foundation) argues that we
should apply strict scrutiny, not exacting scrutiny. Under
strict scrutiny, the government must adopt “the least re-
strictive means of achieving a compelling state interest,”
McCullen v. Coakley, 573 U. S. 464, 478 (2014), rather than
a means substantially related to a sufficiently important in-
terest. The Law Center contends that only strict scrutiny
adequately protects the associational rights of charities.
And although the Law Center acknowledges that we have
applied exacting scrutiny in prior disclosure cases, it argues
that those cases arose in the electoral context, where the
government’s important interests justify less searching re-
view.
It is true that we first enunciated the exacting scrutiny
standard in a campaign finance case. See Buckley, 424
U. S., at 64–68. And we have since invoked it in other
election-related settings. See, e.g., Citizens United v. Fed-
eral Election Comm’n, 558 U. S. 310, 366–367 (2010); Davis
v. Federal Election Comm’n, 554 U. S. 724, 744 (2008). But
exacting scrutiny is not unique to electoral disclosure re-
gimes. To the contrary, Buckley derived the test from
NAACP v. Alabama itself, as well as other nonelection
cases. See 424 U. S., at 64 (citing Gibson v. Florida Legis-
lative Investigation Comm., 372 U. S. 539 (1963); NAACP v.
Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S.
479 (1960); Bates v. Little Rock, 361 U. S. 516 (1960)). As
we explained in NAACP v. Alabama, “it is immaterial” to
the level of scrutiny “whether the beliefs sought to be ad-
vanced by association pertain to political, economic, reli-
gious or cultural matters.” 357 U. S., at 460–461. Regard-
less of the type of association, compelled disclosure
requirements are reviewed under exacting scrutiny.
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
2
The Law Center (now joined by the Foundation) argues
in the alternative that even if exacting scrutiny applies,
such review incorporates a least restrictive means test sim-
ilar to the one imposed by strict scrutiny. The United
States and the Attorney General respond that exacting
scrutiny demands no additional tailoring beyond the “sub-
stantial relation” requirement noted above. We think that
the answer lies between those two positions. While exact-
ing scrutiny does not require that disclosure regimes be the
least restrictive means of achieving their ends, it does re-
quire that they be narrowly tailored to the government’s as-
serted interest.
The need for narrow tailoring was set forth early in our
compelled disclosure cases. In Shelton v. Tucker, we con-
sidered an Arkansas statute that required teachers to dis-
close every organization to which they belonged or contrib-
uted. 364 U. S., at 480. We acknowledged the importance
of “the right of a State to investigate the competence and
fitness of those whom it hires to teach in its schools.” Id.,
at 485. On that basis, we distinguished prior decisions in
which we had found “no substantially relevant correlation
between the governmental interest asserted and the State’s
effort to compel disclosure.” Ibid. But we nevertheless held
that the Arkansas statute was invalid because even a “le-
gitimate and substantial” governmental interest “cannot be
pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved.” Id.,
at 488; see also Louisiana ex rel. Gremillion v. NAACP, 366
U. S. 293, 296 (1961) (quoting same).
Shelton stands for the proposition that a substantial re-
lation to an important interest is not enough to save a dis-
closure regime that is insufficiently tailored. This require-
ment makes sense. Narrow tailoring is crucial where First
Amendment activity is chilled—even if indirectly—
“[b]ecause First Amendment freedoms need breathing
10 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
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space to survive.” Button, 371 U. S., at 433.
Our more recent decisions confirm the need for tailoring.
In McCutcheon v. Federal Election Commission, 572 U. S.
185 (2014), for example, a plurality of the Court explained:
“In the First Amendment context, fit matters. Even
when the Court is not applying strict scrutiny, we still
require a fit that is not necessarily perfect, but reason-
able; that represents not necessarily the single best dis-
position but one whose scope is in proportion to the in-
terest served, that employs not necessarily the least
restrictive means but a means narrowly tailored to
achieve the desired objective.” Id., at 218 (internal quo-
tation marks and alterations omitted).
McCutcheon is instructive here. A substantial relation is
necessary but not sufficient to ensure that the government
adequately considers the potential for First Amendment
harms before requiring that organizations reveal sensitive
information about their members and supporters. Where
exacting scrutiny applies, the challenged requirement must
be narrowly tailored to the interest it promotes, even if it is
not the least restrictive means of achieving that end.
The dissent reads our cases differently. It focuses on the
words “broadly stifle” in the quotation from Shelton above,
and it interprets those words to mean that narrow tailoring
is required only for disclosure regimes that “impose a severe
burden on associational rights.” Post, at 13 (opinion of
SOTOMAYOR, J.). Because, in the dissent’s view, the peti-
tioners have not shown such a burden here, narrow tailor-
ing is not required.
We respectfully disagree. The “government may regulate
in the [First Amendment] area only with narrow specific-
ity,” Button, 371 U. S., at 433, and compelled disclosure re-
gimes are no exception. When it comes to “a person’s beliefs
and associations,” “[b]road and sweeping state inquiries
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
into these protected areas . . . discourage citizens from ex-
ercising rights protected by the Constitution.” Baird v.
State Bar of Ariz., 401 U. S. 1, 6 (1971) (plurality opinion).
Contrary to the dissent, we understand this Court’s discus-
sion of rules that are “broad” and “broadly stifle” First
Amendment freedoms to refer to the scope of challenged re-
strictions—their breadth—rather than the severity of any
demonstrated burden. That much seems clear to us from
Shelton’s statement (in the sentence following the one
quoted by the dissent) that “[t]he breadth of legislative
abridgment must be viewed in the light of less drastic
means for achieving the same basic purpose.” 364 U. S., at
488; see id., at 488, n. 9 (citing sources that support this
reading). It also seems clear from the immediately preced-
ing paragraph, which stressed that “[t]he scope of the in-
quiry required by [the law] is completely unlimited. . . . It
requires [the teacher] to list, without number, every con-
ceivable kind of associational tie—social, professional, po-
litical, avocational, or religious. Many such relationships
could have no possible bearing upon the teacher’s occupa-
tional competence or fitness.” Id., at 488. In other words,
the law was not narrowly tailored to the State’s objective.
Nor does our decision in Reed suggest that narrow tailor-
ing is required only for laws that impose severe burdens.
The dissent casts Reed as a case involving only “ ‘modest
burdens,’ ” and therefore “a correspondingly modest level of
tailoring.” Post, at 12 (quoting 561 U. S., at 201). But it
was only after we concluded that various narrower alterna-
tives proposed by the plaintiffs were inadequate, see 561
U. S., at 198–199, that we held that the strength of the gov-
ernment’s interest in disclosure reflected the burden im-
posed, see id., at 201. The point is that a reasonable assess-
ment of the burdens imposed by disclosure should begin
with an understanding of the extent to which the burdens
are unnecessary, and that requires narrow tailoring.
12 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
III
The Foundation and the Law Center both argued below
that the obligation to disclose Schedule Bs to the Attorney
General was unconstitutional on its face and as applied to
them. See 903 F. 3d, at 1007. The petitioners renew their
facial challenge in this Court, and they argue in the alter-
native that they are entitled to as-applied relief. For the
reasons below, we conclude that California’s blanket de-
mand for Schedule Bs is facially unconstitutional.
A
As explained, exacting scrutiny requires that there be “a
substantial relation between the disclosure requirement
and a sufficiently important governmental interest,” Reed,
561 U. S., at 196 (internal quotation marks omitted), and
that the disclosure requirement be narrowly tailored to the
interest it promotes, see Shelton, 364 U. S., at 488. The
Ninth Circuit found that there was a substantial relation
between the Attorney General’s demand for Schedule Bs
and a sufficiently strong governmental interest. 903 F. 3d,
at 1008–1020. Of particular relevance, the court found that
California had such an interest in preventing charitable
fraud and self-dealing, and that “the up-front collection of
Schedule B information improves the efficiency and efficacy
of the Attorney General’s important regulatory efforts.” Id.,
at 1011–1012. The court did not apply a narrow tailoring
requirement, however, because it did not read our cases to
mandate any such inquiry. Id., at 1008–1009. That was
error. And properly applied, the narrow tailoring require-
ment is not satisfied by the disclosure regime.
We do not doubt that California has an important inter-
est in preventing wrongdoing by charitable organizations.
It goes without saying that there is a “substantial govern-
mental interest[ ] in protecting the public from fraud.”
Schaumburg v. Citizens for Better Environment, 444 U. S.
620, 636 (1980) (internal quotation marks omitted). The
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
Attorney General receives complaints each month that
identify a range of misconduct, from “misuse, misappropri-
ation, and diversion of charitable assets,” to “false and mis-
leading charitable solicitations,” to other “improper activi-
ties by charities soliciting charitable donations.” App. in
No. 19–255, p. 270 (alteration omitted). Such offenses
cause serious social harms. And the Attorney General is
the primary law enforcement officer charged with combat-
ing them under California law. See Cal. Govt. Code Ann.
§12598.
There is a dramatic mismatch, however, between the in-
terest that the Attorney General seeks to promote and the
disclosure regime that he has implemented in service of
that end. Recall that 60,000 charities renew their registra-
tions each year, and nearly all are required to file a Sched-
ule B. Each Schedule B, in turn, contains information
about a charity’s top donors—a small handful of individuals
in some cases, but hundreds in others. See App. in No. 19–
251, p. 319. This information includes donors’ names and
the total contributions they have made to the charity, as
well as their addresses.
Given the amount and sensitivity of this information har-
vested by the State, one would expect Schedule B collection
to form an integral part of California’s fraud detection ef-
forts. It does not. To the contrary, the record amply sup-
ports the District Court’s finding that there was not “a sin-
gle, concrete instance in which pre-investigation collection
of a Schedule B did anything to advance the Attorney Gen-
eral’s investigative, regulatory or enforcement efforts.” 182
F. Supp. 3d, at 1055.
The dissent devotes much of its analysis to relitigating
factual disputes that the District Court resolved against the
Attorney General, see post, at 16–20, notwithstanding the
applicable clear error standard of review, see Fed. Rule Civ.
Proc. 52(a). For example, the dissent echoes the State’s ar-
gument that, in some cases, it relies on up-front Schedule B
14 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
collection to prevent and police fraud. See post, at 18–19.
But the record before the District Court tells a different
story. See, e.g., App. in No. 19–251, at 397, 403, 417. And
even if the State relied on up-front collection in some cases,
its showing falls far short of satisfying the means-end fit
that exacting scrutiny requires. California is not free to en-
force any disclosure regime that furthers its interests. It
must instead demonstrate its need for universal production
in light of any less intrusive alternatives. Cf. Shelton, 364
U. S., at 488.
The Attorney General and the dissent contend that alter-
native means of obtaining Schedule B information—such as
a subpoena or audit letter—are inefficient and ineffective
compared to up-front collection. See post, at 19. It became
clear at trial, however, that the Office had not even consid-
ered alternatives to the current disclosure requirement.
See App. in No. 19–251, at 421 (“I see no reason to change
what we’ve been doing.”). The Attorney General and the
dissent also argue that a targeted request for Schedule B
information could tip a charity off, causing it to “hide or
tamper with evidence.” Brief for Respondent 43; see post,
at 19–20. But again, the States’ witnesses failed to sub-
stantiate that concern. See, e.g., App. in No. 19–251, at
405–406; see also Board of Trustees of State Univ. of N. Y.
v. Fox, 492 U. S. 469, 480 (1989) (“the State . . . must af-
firmatively establish the reasonable fit we require”). Nor
do the actions of investigators suggest a risk of tipping off
charities under suspicion, as the standard practice is to
send audit letters asking for a wide range of information
early in the investigative process. See App. in No. 19–251,
at 406, 411, 418. Furthermore, even if tipoff were a concern
in some cases, the State’s indiscriminate collection of
Schedule Bs in all cases would not be justified.
The upshot is that California casts a dragnet for sensitive
donor information from tens of thousands of charities each
year, even though that information will become relevant in
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
only a small number of cases involving filed complaints.
See id., at 307–308. California does not rely on Schedule
Bs to initiate investigations, and in all events, there are
multiple alternative mechanisms through which the Attor-
ney General can obtain Schedule B information after initi-
ating an investigation. The need for up-front collection is
particularly dubious given that California—one of only
three States to impose such a requirement, see id., at 420—
did not rigorously enforce the disclosure obligation until
2010. Certainly, this is not a regime “whose scope is in pro-
portion to the interest served.” McCutcheon, 572 U. S., at
218 (internal quotation marks omitted).
In reality, then, California’s interest is less in investigat-
ing fraud and more in ease of administration. This interest,
however, cannot justify the disclosure requirement. The
Attorney General may well prefer to have every charity’s
information close at hand, just in case. But “the prime ob-
jective of the First Amendment is not efficiency.” McCullen,
573 U. S., at 495. Mere administrative convenience does
not remotely “reflect the seriousness of the actual burden”
that the demand for Schedule Bs imposes on donors’ asso-
ciation rights. Reed, 561 U. S., at 196 (internal quotation
marks omitted).
B
The foregoing discussion also makes clear why a facial
challenge is appropriate in these cases. Normally, a plain-
tiff bringing a facial challenge must “establish that no set
of circumstances exists under which the [law] would be
valid,” United States v. Salerno, 481 U. S. 739, 745 (1987),
or show that the law lacks “a plainly legitimate sweep,”
Washington State Grange v. Washington State Republican
Party, 552 U. S. 442, 449 (2008) (internal quotation marks
omitted). In the First Amendment context, however, we
have recognized “a second type of facial challenge, whereby
16 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
a law may be invalidated as overbroad if a substantial num-
ber of its applications are unconstitutional, judged in rela-
tion to the statute’s plainly legitimate sweep.” United
States v. Stevens, 559 U. S. 460, 473 (2010) (internal quota-
tion marks omitted). We have no trouble concluding here
that the Attorney General’s disclosure requirement is over-
broad. The lack of tailoring to the State’s investigative
goals is categorical—present in every case—as is the weak-
ness of the State’s interest in administrative convenience.
Every demand that might chill association therefore fails
exacting scrutiny.
The Attorney General tries to downplay the burden on
donors, arguing that “there is no basis on which to conclude
that California’s requirement results in any broad-based
chill.” Brief for Respondent 36. He emphasizes that “Cali-
fornia’s Schedule B requirement is confidential,” and he
suggests that certain donors—like those who give to non-
controversial charities—are unlikely to be deterred from
contributing. Id., at 36–37. He also contends that disclo-
sure to his office imposes no added burdens on donors be-
cause tax-exempt charities already provide their Schedule
Bs to the IRS. Id., at 37.
We are unpersuaded. Our cases have said that disclosure
requirements can chill association “[e]ven if there [is] no
disclosure to the general public.” Shelton, 364 U. S., at 486.
In Shelton, for example, we noted the “constant and heavy”
pressure teachers would experience simply by disclosing
their associational ties to their schools. Ibid. Exacting
scrutiny is triggered by “state action which may have the
effect of curtailing the freedom to associate,” and by the
“possible deterrent effect” of disclosure. NAACP v. Ala-
bama, 357 U. S., at 460–461 (emphasis added); see Talley
v. California, 362 U. S. 60, 65 (1960) (“identification and
fear of reprisal might deter perfectly peaceful discussions of
public matters of importance” (emphasis added)). While as-
Cite as: 594 U. S. ____ (2021) 17
Opinion of the Court
surances of confidentiality may reduce the burden of disclo-
sure to the State, they do not eliminate it.*
It is irrelevant, moreover, that some donors might not
mind—or might even prefer—the disclosure of their identi-
ties to the State. The disclosure requirement “creates an
unnecessary risk of chilling” in violation of the First
Amendment, Secretary of State of Md. v. Joseph H. Munson
Co., 467 U. S. 947, 968 (1984), indiscriminately sweeping
up the information of every major donor with reason to re-
main anonymous. The petitioners here, for example, intro-
duced evidence that they and their supporters have been
subjected to bomb threats, protests, stalking, and physical
violence. App. in No. 19–251, at 256, 291–292. Such risks
are heightened in the 21st century and seem to grow with
each passing year, as “anyone with access to a computer
[can] compile a wealth of information about” anyone else,
including such sensitive details as a person’s home address
or the school attended by his children. Reed, 561 U. S., at
208 (ALITO, J., concurring).
The gravity of the privacy concerns in this context is fur-
ther underscored by the filings of hundreds of organizations
as amici curiae in support of the petitioners. Far from rep-
resenting uniquely sensitive causes, these organizations
span the ideological spectrum, and indeed the full range of
——————
* Here the State’s assurances of confidentiality are not worth much.
The dissent acknowledges that the Foundation and Law Center “have
unquestionably provided evidence that their donors face a reasonable
probability of threats, harassment, and reprisals if their affiliations are
made public,” but it concludes that the petitioners have no cause for con-
cern because the Attorney General “has implemented security measures
to ensure that Schedule B information remains confidential.” Post, at 15
(opinion of SOTOMAYOR, J.). The District Court—whose findings, again,
we review only for clear error—disagreed. After two full bench trials, the
court found that the Attorney General’s promise of confidentiality “rings
hollow,” and that “[d]onors and potential donors would be reasonably jus-
tified in a fear of disclosure.” Thomas More Law Center v. Harris, 2016
WL 6781090, *5 (CD Cal., Nov. 16, 2016).
18 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
human endeavors: from the American Civil Liberties Union
to the Proposition 8 Legal Defense Fund; from the Council
on American-Islamic Relations to the Zionist Organization
of America; from Feeding America—Eastern Wisconsin to
PBS Reno. The deterrent effect feared by these organiza-
tions is real and pervasive, even if their concerns are not
shared by every single charity operating or raising funds in
California.
The dissent argues that—regardless of the defects in Cal-
ifornia’s disclosure regime—a facial challenge cannot suc-
ceed unless a plaintiff shows that donors to a substantial
number of organizations will be subjected to harassment
and reprisals. See post, at 21, n. 11. As we have explained,
plaintiffs may be required to bear this evidentiary burden
where the challenged regime is narrowly tailored to an im-
portant government interest. See supra, at 10–11. Such a
demanding showing is not required, however, where—as
here—the disclosure law fails to satisfy these criteria.
Finally, California’s demand for Schedule Bs cannot be
saved by the fact that donor information is already dis-
closed to the IRS as a condition of federal tax-exempt sta-
tus. For one thing, each governmental demand for disclo-
sure brings with it an additional risk of chill. For another,
revenue collection efforts and conferral of tax-exempt sta-
tus may raise issues not presented by California’s disclo-
sure requirement, which can prevent charities from operat-
ing in the State altogether. See Regan v. Taxation With
Representation of Wash., 461 U. S. 540, 545 (1983); see also
Schaumburg, 444 U. S., at 633 (First Amendment protects
right to solicit charitable contributions).
We are left to conclude that the Attorney General’s dis-
closure requirement imposes a widespread burden on do-
nors’ associational rights. And this burden cannot be justi-
fied on the ground that the regime is narrowly tailored to
investigating charitable wrongdoing, or that the State’s in-
Cite as: 594 U. S. ____ (2021) 19
Opinion of the Court
terest in administrative convenience is sufficiently im-
portant. We therefore hold that the up-front collection of
Schedule Bs is facially unconstitutional, because it fails ex-
acting scrutiny in “a substantial number of its applications
. . . judged in relation to [its] plainly legitimate sweep.” Ste-
vens, 559 U. S., at 473 (internal quotation marks omitted).
The dissent concludes by saying that it would be “sympa-
thetic” if we “had simply granted as-applied relief to peti-
tioners based on [our] reading of the facts.” Post, at 25. But
the pertinent facts in these cases are the same across the
board: Schedule Bs are not used to initiate investigations.
That is true in every case. California has not considered
alternatives to indiscriminate up-front disclosure. That is
true in every case. And the State’s interest in amassing
sensitive information for its own convenience is weak. That
is true in every case. When it comes to the freedom of asso-
ciation, the protections of the First Amendment are trig-
gered not only by actual restrictions on an individual’s abil-
ity to join with others to further shared goals. The risk of a
chilling effect on association is enough, “[b]ecause First
Amendment freedoms need breathing space to survive.”
Button, 371 U. S., at 433.
* * *
The District Court correctly entered judgment in favor of
the petitioners and permanently enjoined the Attorney
General from collecting their Schedule Bs. The Ninth Cir-
cuit erred by vacating those injunctions and directing entry
of judgment for the Attorney General. The judgment of the
Ninth Circuit is reversed, and the cases are remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 594 U. S. ____ (2021) 1
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–251 and 19–255
_________________
AMERICANS FOR PROSPERITY FOUNDATION,
PETITIONER
19–251 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
THOMAS MORE LAW CENTER, PETITIONER
19–255 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 1, 2021]
JUSTICE THOMAS, concurring in Parts I, II–A, II–B–2,
and III–A, and concurring in the judgment.
The Court correctly holds that California’s disclosure re-
quirement violates the First Amendment. It also correctly
concludes that the District Court properly enjoined Califor-
nia’s attorney general from collecting the forms at issue,
which contain sensitive donor information. But, while I
agree with much of the Court’s opinion, I would approach
three issues differently.
First, the bulk of “our precedents . . . require application
of strict scrutiny to laws that compel disclosure of protected
First Amendment association.” Doe v. Reed, 561 U. S. 186,
232 (2010) (THOMAS, J., dissenting). California’s law fits
that description. Although the Court rightly holds that
even the less demanding “exacting scrutiny” standard re-
quires narrow tailoring for laws that compel disclosure,
ante, at 9–11, invoking exacting scrutiny is at odds with our
2 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of THOMAS, J.
repeated recognition “that privacy of association is pro-
tected under the First Amendment.” 561 U. S., at 240(THOMAS, J., dissenting). The text and history of the As-
sembly Clause suggest that the right to assemble includes
the right to associate anonymously. See 4 Annals of Cong.
900–902, 941–942 (1795) (defending the Democratic-Re-
publican societies, many of which met in secret, as exercis-
ing individuals’ “leave to assemble”); see also Brief for
Becket Fund for Religious Liberty as Amicus Curiae 13–20;
Reply Brief in No. 19–251, pp. 3–5; NAACP v. Alabama ex
rel. Patterson, 357 U. S. 449 (1958) (discussing the history
of anonymous publications). And the right to associate
anonymously often operates as a vehicle to protect other
First Amendment rights, such as the freedom of the press.
McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 361–367
(1995) (THOMAS, J., concurring) (“Founding-era Americans”
understood the freedom of the press to include the right of
printers and publishers not to be compelled to disclose the
authors of anonymous works). Laws directly burdening the
right to associate anonymously, including compelled disclo-
sure laws, should be subject to the same scrutiny as laws
directly burdening other First Amendment rights. Doe, 561
U. S., at 232, 240.
Second, the Court holds the law “overbroad” and, thus,
invalid in all circumstances. Ante, at 16. But I continue to
have “doubts about [the] origins and application” of our
“overbreadth doctrine.” United States v. Sineneng-Smith,
590 U. S. ___, ___ (2020) (THOMAS, J., concurring) (slip op.,
at 1). That doctrine purports to grant federal courts the
power to invalidate a law “if a substantial number of its ap-
plications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” Ibid. (internal quota-
tion marks omitted). However, the Court has no power to
enjoin the lawful application of a statute just because that
statute might be unlawful as-applied in other circum-
stances. Id., at ___ (slip op., at 9); Borden v. United States,
Cite as: 594 U. S. ____ (2021) 3
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
593 U. S. ___, ___ (2021) (THOMAS, J., concurring) (slip op.,
at 4) (“a court cannot, consistent with separation of powers,
enjoin enforcement of a statute where enforcement would
be lawful”). And the principle that application of a law is
always unlawful if “ ‘a substantial number of its applica-
tions are unconstitutional’ ” “lacks any basis in the Consti-
tution’s text” and “contravenes traditional standing princi-
ples.” Sineneng-Smith, 590 U. S., at ___ (THOMAS, J.,
concurring) (slip op., at 1).
Third, and relatedly, this Court also lacks the power “to
‘pronounce that the statute is unconstitutional in all appli-
cations,’ ” even if the Court suspects that the law will likely
be unconstitutional in every future application as opposed
to just a substantial number of its applications. Borden,
593 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3)
(quoting Chicago v. Morales, 527 U. S 41, 77 (1999) (Scalia,
J., dissenting)). A declaration that the law is “facially” un-
constitutional “seems to me no more than an advisory opin-
ion—which a federal court should never issue at all.” 593
U. S., at ___ (THOMAS, J., concurring) (slip op., at 3). Courts
cannot “strike down statutory text” or resolve the legal
rights of litigants not before them. Ibid. (brackets and in-
ternal quotation marks omitted).
Despite the Court’s use of the term “facially unconstitu-
tional,” I join Part III–A, which finds that California’s law
fails exacting scrutiny, because the Court does not say that
it is “provid[ing] relief beyond the parties to the case.”
Trump v. Hawaii, 585 U. S. ___, ___ (2018) (THOMAS, J.,
concurring) (slip op., at 6). The Court simply (and correctly)
holds that the District Court properly enjoined the law as
applied to petitioners. Ante, at 19. The Court’s judgment
is also not dependent on its overbreadth determination.
Ante, at 12–15. One can understand the Court’s reasoning
as based on the fundamental legal problems with the law
(that are obvious in light of the facts of this suit) that will,
in practice, prevent California from lawfully applying the
4 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
Opinion of THOMAS, J.
disclosure requirement against a substantial number of en-
tities, including petitioners.
With those points of difference clarified, I join Parts I, II–
A, II–B–2, and III–A of the majority’s opinion and concur in
the judgment.
Cite as: 594 U. S. ____ (2021) 1
ALITO, J.,of
Opinion concurring
ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–251 and 19–255
_________________
AMERICANS FOR PROSPERITY FOUNDATION,
PETITIONER
19–251 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
THOMAS MORE LAW CENTER, PETITIONER
19–255 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 1, 2021]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, con-
curring in Parts I, II–A, II–B–2, and III, and concurring in
the judgment.
I am pleased to join most of THE CHIEF JUSTICE’s opinion.
In particular, I agree that the exacting scrutiny standard
drawn from our election-law jurisprudence has real teeth.
It requires both narrow tailoring and consideration of alter-
native means of obtaining the sought-after information.
See ante, at 9–11, 14–15 (opinion of the Court). For the rea-
sons THE CHIEF JUSTICE explains, California’s blunderbuss
approach to charitable disclosures fails exacting scrutiny
and is facially unconstitutional. See ante, at 12–19 (opinion
of the Court). The question is not even close. And for the
same reasons, California’s approach necessarily fails strict
scrutiny.
THE CHIEF JUSTICE would hold that the particular exact-
ing scrutiny standard in our election-law jurisprudence ap-
2 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
ALITO, J.,of
Opinion concurring
ALITO, J.
plies categorically “to First Amendment challenges to com-
pelled disclosure.” Ante, at 7 (plurality opinion). JUSTICE
THOMAS, by contrast, would hold that strict scrutiny ap-
plies in all such cases. See ante, at 1–2 (concurring opinion).
I am not prepared at this time to hold that a single standard
applies to all disclosure requirements. And I do not read
our cases to have broadly resolved the question in favor of
exacting scrutiny. This Court decided its seminal com-
pelled disclosure cases before it developed modern strict
scrutiny doctrine. See Fallon, Strict Judicial Scrutiny, 54
UCLA L. Rev. 1267, 1284 (2007) (“Before 1960, what we
would now call strict judicial scrutiny . . . did not exist”); id.,
at 1282 (contending that modern strict scrutiny’s “first un-
ambiguous appearance” in a majority opinion occurred in
1969). Accordingly, nothing in those cases can be under-
stood as rejecting strict scrutiny. If anything, their lan-
guage and reasoning—requiring a compelling interest and
a minimally intrusive means of advancing that interest—
anticipated and is fully in accord with contemporary strict
scrutiny doctrine. See, e.g., Shelton v. Tucker, 364 U. S.
479, 488 (1960) (the government’s purpose “cannot be pur-
sued by means that broadly stifle fundamental personal lib-
erties when the end can be more narrowly achieved”);
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 463
(1958) (requiring a “compelling” interest (internal quota-
tion marks omitted)). Similarly, Buckley v. Valeo, 424 U. S.
1 (1976) (per curiam), and its progeny should not be read to
have broadly cabined our earlier decisions merely by rely-
ing on them in one particular context.
Because the choice between exacting and strict scrutiny
has no effect on the decision in these cases, I see no need to
decide which standard should be applied here or whether
the same level of scrutiny should apply in all cases in which
the compelled disclosure of associations is challenged under
the First Amendment.
Cite as: 594 U. S. ____ (2021) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–251 and 19–255
_________________
AMERICANS FOR PROSPERITY FOUNDATION,
PETITIONER
19–251 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
THOMAS MORE LAW CENTER, PETITIONER
19–255 v.
ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 1, 2021]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, dissenting.
Although this Court is protective of First Amendment
rights, it typically requires that plaintiffs demonstrate an
actual First Amendment burden before demanding that a
law be narrowly tailored to the government’s interests,
never mind striking the law down in its entirety. Not so
today. Today, the Court holds that reporting and disclosure
requirements must be narrowly tailored even if a plaintiff
demonstrates no burden at all. The same scrutiny the
Court applied when NAACP members in the Jim Crow
South did not want to disclose their membership for fear of
reprisals and violence now applies equally in the case of do-
nors only too happy to publicize their names across the web-
sites and walls of the organizations they support.
California oversees nearly a quarter of this Nation’s char-
itable assets. As part of that oversight, it investigates and
prosecutes charitable fraud, relying in part on a registry
2 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
where it collects and keeps charitable organizations’ tax
forms. The majority holds that a California regulation re-
quiring charitable organizations to disclose tax forms con-
taining the names and contributions of their top donors un-
constitutionally burdens the right to associate even if the
forms are not publicly disclosed.
In so holding, the Court discards its decades-long require-
ment that, to establish a cognizable burden on their associ-
ational rights, plaintiffs must plead and prove that disclo-
sure will likely expose them to objective harms, such as
threats, harassment, or reprisals. It also departs from the
traditional, nuanced approach to First Amendment chal-
lenges, whereby the degree of means-end tailoring required
is commensurate to the actual burdens on associational
rights. Finally, it recklessly holds a state regulation fa-
cially invalid despite petitioners’ failure to show that a sub-
stantial proportion of those affected would prefer anonym-
ity, much less that they are objectively burdened by the loss
of it.
Today’s analysis marks reporting and disclosure require-
ments with a bull’s-eye. Regulated entities who wish to
avoid their obligations can do so by vaguely waving toward
First Amendment “privacy concerns.” Ante, at 17. It does
not matter if not a single individual risks experiencing a
single reprisal from disclosure, or if the vast majority of
those affected would happily comply. That is all irrelevant
to the Court’s determination that California’s Schedule B
requirement is facially unconstitutional. Neither precedent
nor common sense supports such a result. I respectfully
dissent.
I
Charitable organizations that wish to solicit tax-deducti-
ble contributions from California residents must maintain
membership in a registry managed by the California attor-
ney general. Cal. Govt. Code Ann. §§12584, 12585 (West
Cite as: 594 U. S. ____ (2021) 3
SOTOMAYOR, J., dissenting
2018). As a condition of membership, the attorney general
requires charities to submit a complete copy of Internal
Revenue Service (IRS) Form 990, including Schedule B, on
which 501(c)(3) organizations report the names and contri-
butions of their major donors. See Cal. Code Regs., tit. 11,
§301 (2021); 26 CFR §§1.6033–2(a)(2)(ii), (iii) (2020). Cali-
fornia regulations expressly require that Schedule Bs re-
main confidential, Cal. Code Regs., tit. 11, §310(b), and the
attorney general’s office has implemented enhanced proto-
cols to ensure confidentiality.1 California relies on Sched-
ule Bs to investigate fraud and other malfeasance.
After the attorney general’s office stepped up its efforts
to enforce California’s Schedule B reporting requirement,
petitioners Americans for Prosperity Foundation (Founda-
tion) and Thomas More Law Center (Law Center) sought an
injunction against the requirement. They alleged that the
requirement “unconstitutionally burden[ed] their First
Amendment right to free association by deterring individu-
als from financially supporting them.” Americans for Pros-
perity Foundation v. Becerra, 903 F. 3d 1000, 1006 (CA9
2018). They pointed to evidence that their supporters ex-
perienced threats, reprisals, and harassment when their
identities and associations became publicly known in other
——————
1 Schedule Bs are kept in a confidential database used only by the
Charitable Trusts Section and inaccessible to others in California’s at-
torney general’s office. Employees who fail to safeguard confidential in-
formation are subject to discipline. See generally Cal. Govt. Code Ann.
§19572 (West 2009). In light of previous security breaches disclosed in
this litigation, see ante, at 5, the attorney general’s office instituted a
series of measures to ensure that Schedule B information remains confi-
dential. The office has adopted a system of text searching forms before
they are uploaded onto the Internet to ensure that none contain Schedule
B information. The office now also runs automated scans of publicly ac-
cessible government databases to identify and remove any documents
containing Schedule B information that may be inadvertently uploaded.
See Americans for Prosperity Foundation v. Becerra, 903 F. 3d 1000, 1018
(CA9 2018).
4 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
contexts. Importantly, however, the Foundation and Law
Center failed to show that such consequences would result
from the confidential submission of their top donors’ identi-
ties to California’s attorney general’s office in light of the
security mechanisms the office has now implemented.
II
Because the freedom to associate needs “breathing space
to survive,” NAACP v. Button, 371 U. S. 415, 433 (1963),
this Court has recognized that associational rights must be
“protected not only against heavy-handed frontal attack,
but also from being stifled by more subtle governmental in-
terference,” Bates v. Little Rock, 361 U. S. 516, 523 (1960).
Publicizing individuals’ association with particular groups
might expose members to harassment, threats, and repris-
als by opponents of those organizations. Individuals may
choose to disassociate themselves from a group altogether
rather than face such backlash.
Acknowledging that risk, this Court has observed that
“privacy in group association may in many circumstances
be indispensable to preservation of freedom of association,
particularly where a group espouses dissident beliefs.”
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462
(1958). That observation places special emphasis on the
risks actually resulting from disclosure. Privacy “may” be
indispensable to the preservation of freedom of association,
but it need not be. It depends on whether publicity will lead
to reprisal. For example, privacy can be particularly im-
portant to “dissident” groups because the risk of retaliation
against their supporters may be greater. For groups that
promote mainstream goals and ideas, on the other hand,
privacy may not be all that important. Not only might their
supporters feel agnostic about disclosing their association,
they might actively seek to do so.
Given the indeterminacy of how disclosure requirements
Cite as: 594 U. S. ____ (2021) 5
SOTOMAYOR, J., dissenting
will impact associational rights, this Court requires plain-
tiffs to demonstrate that a requirement is likely to expose
their supporters to concrete repercussions in order to estab-
lish an actual burden. It then applies a level of means-end
tailoring proportional to that burden. The Court abandons
that approach here, instead holding that narrow tailoring
applies to disclosure requirements across the board, even if
there is no evidence that they burden anyone at all.
A
Before today, to demonstrate that a reporting or disclo-
sure requirement would chill association, litigants had to
show “a reasonable probability that the compelled disclo-
sure of . . . contributors’ names will subject them to threats,
harassment, or reprisals from either Government officials
or private parties.” Buckley v. Valeo, 424 U. S. 1, 74 (1976)
(per curiam). Proof could include “specific evidence of past
or present harassment of members due to their associa-
tional ties, or of harassment directed against the organiza-
tion itself,” ibid., as well as evidence that “fear of commu-
nity hostility and economic reprisals that would follow
public disclosure . . . had discouraged new members from
joining” an organization or caused “former members to
withdraw,” Bates, 361 U. S., at 524. Although the Court
has never imposed an “unduly strict requiremen[t] of
proof,” Buckley, 424 U. S., at 74, it has consistently required
at least some record evidence demonstrating a risk of such
objective harms. See Bates, 361 U. S., at 523–524; Patter-
son, 357 U. S., at 462–463.
Indeed, the Court has expressly held that parties do not
have standing to bring claims where they assert nothing
more than that government action will cause a “subjective
‘chill.’ ” Laird v. Tatum, 408 U. S. 1, 13–14 (1972). It does
not matter if an individual perceives a government regula-
tion “as inappropriate,” or believes “it is inherently danger-
ous for the [government] to be concerned with” a particular
6 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
activity, or has “generalized yet speculative apprehensive-
ness that the [government] may at some future date misuse
the information in some way that would cause direct harm”
to her. Id., at 13. She must still allege a risk of objective
harm. See id., at 14; see also Clapper v. Amnesty Int’l USA,
568 U. S. 398, 417–418 (2013).
Consistent with this approach, the Court has carefully
scrutinized record evidence to determine whether a disclo-
sure requirement actually risks exposing supporters to
backlash. See Patterson, 357 U. S., at 462 (compelled dis-
closure of NAACP members “entail[ed] the likelihood of a
substantial restraint” on association in light of “an uncon-
troverted showing” that past disclosures exposed members
“to economic reprisal, loss of employment, threat of physical
coercion, and other manifestations of public hostility”);
Bates, 361 U. S., at 523–524 (compelled disclosure of
NAACP membership “would work a significant interference
with the freedom of association” based on “uncontroverted
evidence” that past identification “had been followed by
harassment and threats of bodily harm”); Shelton v. Tucker,
364 U. S. 479, 486 (1960) (disclosure of teachers’ organiza-
tional affiliations impaired association because record evi-
dence substantiated a “fear of public disclosure” and a “con-
stant and heavy” pressure on teachers “to avoid any ties
which might displease those who control [their] profes-
sional destin[ies]”); Buckley, 424 U. S., at 69–70 (“any seri-
ous infringement” on associational rights caused by the
compelled disclosure of contributors was “highly specula-
tive” on the record before the Court).
Hence, in Doe v. Reed, 561 U. S. 186 (2010), the Court
rejected a facial challenge to the public disclosure of refer-
enda signatories on the ground that the “typical referen-
dum” concerned revenue, budget, and tax policies unlikely
to incite threats or harassment. Id., at 200–201. Any judge
who has witnessed local fights over raising taxes, funding
schools, building sewer systems, or rerouting roads can
Cite as: 594 U. S. ____ (2021) 7
SOTOMAYOR, J., dissenting
surely envisage signatories with reason to keep their sup-
port for such measures private. But in Reed, such subjec-
tive reasons did not suffice to establish a cognizable burden
on associational rights.
Today, the Court abandons the requirement that plain-
tiffs demonstrate that they are chilled, much less that they
are reasonably chilled. Instead, it presumes (contrary to
the evidence, precedent, and common sense) that all disclo-
sure requirements impose associational burdens. For ex-
ample, the Court explains that there is a risk of chill in this
suit because the government requires disclosure of the iden-
tity of any donor “with reason to remain anonymous.” Ante,
at 17. The Court does not qualify that statement, nor does
it require record evidence of such reasons. If the Court did,
it would not be able to strike California’s Schedule B re-
quirement down in all its applications, because the only ev-
idence in the record of donors with any reason to remain
anonymous is that of petitioners’.2
At best, then, a subjective preference for privacy, which
previously did not confer standing, now subjects disclosure
requirements to close scrutiny. Of course, all disclosure re-
quires some loss of anonymity, and courts can always imag-
ine that someone might, for some reason, prefer to keep
their donations undisclosed. If such speculation is enough
(and apparently it is), then all disclosure requirements ipso
facto impose cognizable First Amendment burdens.
Indeed, the Court makes obvious its presumption that all
disclosure requirements are burdensome by beginning its
analysis of “burden” with an evaluation of means-end fit in-
stead. “[A] reasonable assessment of the burdens imposed
by disclosure,” the Court explains, “should begin with an
understanding of the extent to which the burdens are un-
necessary, and that requires narrow tailoring.” Ante, at 11;
see also ante, at 17–18 (excusing plaintiffs from showing
——————
2 See Part IV, infra.
8 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
any burden if a disclosure law is not narrowly tailored).
I disagree. A reasonable assessment of the burdens im-
posed by disclosure should begin by determining whether
those burdens even exist. If a disclosure requirement im-
poses no burdens at all, then of course there are no “unnec-
essary” burdens. Likewise, if a disclosure requirement im-
poses no burden for the Court to remedy, there is no need
for it to be closely scrutinized. By forgoing the requirement
that plaintiffs adduce evidence of tangible burdens, such as
increased vulnerability to harassment or reprisals, the
Court gives itself license to substitute its own policy prefer-
ences for those of politically accountable actors.
B
All this would be less troubling if the Court still required
means-end tailoring commensurate to the actual burden
imposed. It does not. Instead, it adopts a new rule that
every reporting or disclosure requirement be narrowly tai-
lored. See ante, at 9 (“While exacting scrutiny does not re-
quire that disclosure regimes be the least restrictive means
of achieving their ends, it does require that they be nar-
rowly tailored to the government’s asserted interest”).
1
Disclosure requirements burden associational rights only
indirectly and only in certain contexts. For that reason, this
Court has never necessarily demanded such requirements
to be narrowly tailored. Rather, it has reserved such auto-
matic tailoring for state action that “directly and immedi-
ately affects associational rights.” Boy Scouts of America v.
Dale, 530 U. S. 640, 659 (2000); see also Buckley, 424 U. S.,
at 22, 25 (requiring a “closely drawn” fit for political contri-
bution limits, which directly “limit one important means of
associating with a candidate or committee”). When it comes
to reporting and disclosure requirements, the Court has in-
stead employed a more flexible approach, which it has
Cite as: 594 U. S. ____ (2021) 9
SOTOMAYOR, J., dissenting
named “exacting scrutiny.” See ante, at 7–8 (opinion of
ROBERTS, C. J.).
Exacting scrutiny requires two things: first, there must
be “ ‘a “substantial relation” between the disclosure require-
ment and a “sufficiently important” government interest,’ ”
and second, “ ‘the strength of the governmental interest
must reflect the seriousness of the actual burden on First
Amendment rights.’ ” Reed, 561 U. S., at 196. Exacting
scrutiny thus incorporates a degree of flexibility into the
means-end analysis. The more serious the burden on First
Amendment rights, the more compelling the government’s
interest must be, and the tighter must be the fit between
that interest and the government’s means of pursuing it.
By contrast, a less substantial interest and looser fit will
suffice where the burden on First Amendment rights is
weaker (or nonexistent). In other words, to decide how
closely tailored a disclosure requirement must be, courts
must ask an antecedent question: How much does the dis-
closure requirement actually burden the freedom to associ-
ate?
This approach reflects the longstanding principle that the
requisite level of scrutiny should be commensurate to the
burden a government action actually imposes on First
Amendment rights. See, e.g., Burdick v. Takushi, 504 U. S.
428, 434 (1992) (“[T]he rigorousness of our inquiry . . . de-
pends upon the extent to which a challenged regulation bur-
dens” First Amendment rights); Board of Trustees of State
Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989) (“[C]ommer-
cial speech enjoys a limited measure of protection, commen-
surate with its subordinate position in the scale of First
Amendment values, and is [thus] subject to modes of regu-
lation that might be impermissible in the realm of noncom-
mercial expression” (internal quotation marks and altera-
tions omitted)); see also Fulton v. Philadelphia, 593 U. S.
___, ___ (2021) (BARRETT, J., concurring) (slip op., at 2) (not-
ing the “nuanced” approach the Court generally takes in the
10 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
“resolution of conflicts between generally applicable laws
and . . . First Amendment rights”).
Compare, for instance, the Court’s approaches in Shelton
v. Tucker and Doe v. Reed. At issue in Shelton was an Ar-
kansas statute passed in 1958 that compelled all public
school teachers, as a condition of employment, to submit an-
nually a list of every organization to which they belonged or
regularly contributed. 364 U. S., at 480–481. The Court
held that the disclosure requirement “comprehensive[ly] in-
terfere[d] with associational freedom,” because record evi-
dence demonstrated a significant risk that the information
would be publicly disclosed, and such disclosure could lead
to public pressure on school boards “to discharge teachers
who belong to unpopular or minority organizations.” Id., at
486–487, 490. Arkansas’s statute did not require that the
information remain confidential; each school board was
“free to deal with the information as it wishe[d].” Id., at
486. Indeed, “a witness who was a member of the Capital
Citizens[’] Council” (an organization dedicated to resisting
school integration)3 “testified that his group intended to
gain access” to the teachers’ affidavits “with a view to elim-
inating from the school system persons who supported or-
ganizations unpopular with the group.” Ibid., n. 7. Moreo-
ver, a starkly asymmetric power dynamic existed between
teachers, who were “hired on a year-to-year basis,” and the
hiring authorities to whom their membership lists were
submitted. Id., at 482. The Arkansas Legislature had
made no secret of its desire for teachers’ disclosures to be
used for hiring and firing decisions. One year after enacting
the disclosure requirement at issue in Shelton, the legisla-
ture enacted another provision that made it outright un-
lawful for state governmental bodies to employ members of
the NAACP. Shelton v. McKinley, 174 F. Supp. 351, 353–
——————
3 See Hagley, Massive Resistance—The Rhetoric and the Reality, 27
N. M. L. Rev. 167, 203 (1997).
Cite as: 594 U. S. ____ (2021) 11
SOTOMAYOR, J., dissenting
354 (ED Ark. 1959). It is thus unsurprising that the Court
found that Arkansas teachers would feel a “constant and
heavy” pressure “to avoid any ties which might displease
those who control [their] professional destin[ies].” Id., at
486; see also Keyishian v. Board of Regents of Univ. of State
of N. Y., 385 U. S. 589, 604 (1967) (“When one must guess
what conduct or utterance may lose him his position, one
necessarily will steer far wider of the [impermissible] zone”
(internal quotation marks omitted)). Because Arkansas’s
purpose (ensuring teachers’ fitness) was “pursued by means
that broadly stifle fundamental personal liberties,” the
Court demanded that Arkansas “more narrowly achiev[e]”
its interest. Shelton, 364 U. S., at 488.
Now consider this Court’s approach in Reed. Reed in-
volved a facial challenge to a Washington law permitting
the public disclosure of referendum petitions that included
signatories’ names and addresses. 561 U. S., at 190–191.
The Court found that Washington had a number of other
mechanisms in place to pursue its stated interest in pre-
venting fraudulent referendum signatures. For instance,
the secretary of state was charged with verifying and can-
vassing the names on referendum petitions, advocates and
opponents of a measure could observe the canvassing pro-
cess, and citizens could challenge the secretary’s actions in
court. Id., at 198. Publicly disclosing referendum signato-
ries was thus a mere backstop, giving citizens the oppor-
tunity to catch the secretary’s mistakes. Had Washington
been required to achieve its interests narrowly, as in Shel-
ton, it is unlikely the disclosure requirement would have
survived.4
——————
4 For instance, the Court did not ask whether the public disclosure of
signatories’ names and addresses was “in proportion to the” govern-
ment’s interest in policing fraud. Ante, at 15 (internal quotation marks
omitted). Nor did it feel any need to respond to the dissent’s description
12 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
In crucial contrast to Shelton, however, the Reed Court
found “scant evidence” that disclosure exposed signatories
of typical referendums to “threats, harassment, or reprisals
from either Government officials or private parties.” 561
U. S., at 200–201 (internal quotation marks omitted).
Given the “modest burdens” imposed by the requirement,
id., at 201, the Court required a correspondingly modest
level of tailoring. Under that standard, the disclosure re-
quirement passed muster, and the Court refused to facially
strike it down.
The public disclosure regimes in both Shelton and Reed
served important government goals. Yet the Court’s assess-
ment of each differed considerably because the First
Amendment burdens differed. This flexible approach is
necessary because not all reporting and disclosure regimes
burden associational rights in the same way.
2
The Court now departs from this nuanced approach in fa-
vor of a “one size fits all” test. Regardless of whether there
is any risk of public disclosure, and no matter if the burdens
on associational rights are slight, heavy, or nonexistent,
disclosure regimes must always be narrowly tailored.
The Court searches in vain to find a foothold for this new
approach in precedent. The Court first seizes on Shelton’s
statement that a governmental interest “ ‘cannot be pur-
sued by means that broadly stifle fundamental personal lib-
erties when the end can be more narrowly achieved.’ ” Ante,
at 9 (quoting 364 U. S., at 488). The Court could not have
——————
of ways in which Washington’s interest could be met without public dis-
closure. Reed, 561 U. S., at 234–238 (opinion of THOMAS, J.). It was
enough that public disclosure could “help” advance electoral integrity.
Id., at 198 (majority opinion). The Court is clearly wrong to suggest it
applied narrow tailoring in Reed. See ante, at 11.
Cite as: 594 U. S. ____ (2021) 13
SOTOMAYOR, J., dissenting
cherry-picked a less helpful quote. By its own terms, Shel-
ton held that an end must be “more narrowly achieved” only
if the means “broadly stifle” First Amendment liberties,
that is, only if the means impose a severe burden on associ-
ational rights.5
In any event, the Court need not read a few isolated sen-
tences from that opinion to divine Shelton’s meaning. As
described, see Part II–B–1, supra, the Court in Shelton con-
cluded that a reasonable “fear of public disclosure” and an
asymmetric power dynamic with hiring authorities would
result in a “constant and heavy” pressure on teachers “to
avoid any ties which might displease those who control
[their] professional destin[ies].” 364 U. S., at 486. Recall
that a witness had testified that his white supremacist or-
ganization would seek to obtain the identities of teachers
working on civil rights issues in order to eradicate them
from the school system, and that just a year after Arkansas
enacted its disclosure law, it enacted a law prohibiting the
hiring of members of the NAACP as public school teachers.
The problem was not the breadth of the inquiry; it was the
significant risk that teachers would face serious repercus-
sions for their disclosed associations.6
——————
5 The Court claims that “broadly stifle” refers “to the scope of chal-
lenged restrictions” rather than “the severity of any demonstrated bur-
den.” Ante, at 11. That reading ignores the verb “stifle” and its object,
“fundamental personal liberties.” The Court wishes the sentence said
that a government interest “cannot be pursued by [broad] means.” It
does not.
The Court also finds meaning in the fact that Shelton criticized Arkan-
sas’ challenged disclosure regime for not being narrowly tailored. Ante,
at 11. But the Shelton Court had already explained why the failure to
narrowly tailor was problematic: because the statute significantly bur-
dened Arkansas teachers’ associational rights. See Shelton, 364 U. S., at485–487. In no way did the Court suggest that narrow tailoring was
necessary in the absence of a significant burden on associational rights.
6 The statement the Court cites from Baird v. State Bar of Ariz., 401
U. S. 1, 6 (1971) (plurality opinion), must be read in a similar context.
14 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
The Court next looks to McCutcheon v. Federal Election
Comm’n, 572 U. S. 185 (2014), which addressed political
contribution limits, not disclosure regimes. It is no surprise
that the Court subjected the former to narrow tailoring, as
Buckley had already held that contribution limits directly
“impinge on protected associational freedoms.” 424 U. S.,
at 22; see also McCutcheon, 572 U. S., at 204 (explaining
that aggregate limits on contributions “diminish an individ-
ual’s right of political association” by “limit[ing] the number
of candidates he supports” or the amount of money he
gives). Buckley itself distinguished the First Amendment
burdens of disclosure requirements and contribution limits.
See 424 U. S., at 64 (noting that, unlike contribution limits,
“disclosure requirements impose no ceiling on campaign-re-
lated activities” and concluding only that compelled disclo-
sure “can” infringe associational rights). Apparently, those
distinctions no longer matter.
Neither Shelton nor McCutcheon, then, supports the idea
that all disclosure requirements must be narrowly tailored.
McCutcheon arose in the context of a direct limit on associ-
ational freedoms, while the law in Shelton “broadly sti-
fle[d]” associational rights. Ignoring these distinctions, the
Court decides that it will indiscriminately require narrow
——————
See ante, at 10–11. Baird involved the Arizona State Bar’s requirement
that lawyers seeking admission disclose their organizational affiliations
and face denial if they gave the wrong answers. The “state inquiries”
were not just “[b]road and sweeping”; they were designed to identify and
“punis[h]” applicants who “[held] certain beliefs” or were “member[s] of
a particular political organization.” 401 U. S., at 6. As the Court ex-
plained, “a State may not inquire about a man’s views or associations
solely for the purpose of withholding a right or benefit because of what
he believes.” Id., at 7. The Court nowhere suggests that California will
“punish” donors for their beliefs. That logic thus has no application here.
The Court also draws on language from NAACP v. Button, 371 U. S.
415 (1963). Ante, at 10. But that case did not involve a disclosure re-
quirement at all. It involved a law that made it a crime for a person to
advise another of the infringement of her legal rights and to refer her to
a group of attorneys, like the legal staff of the NAACP, for assistance.
Cite as: 594 U. S. ____ (2021) 15
SOTOMAYOR, J., dissenting
tailoring for every single disclosure regime. The Court thus
trades precision for blunt force, creating a significant risk
that it will topple disclosure regimes that should be consti-
tutional, and that, as in Reed, promote important govern-
mental interests.
III
A
Under a First Amendment analysis that is faithful to this
Court’s precedents, California’s Schedule B requirement is
constitutional. Begin with the burden it imposes on associ-
ational rights. Petitioners have unquestionably provided
evidence that their donors face a reasonable probability of
threats, harassment, and reprisals if their affiliations are
made public. See ante, at 4. California’s Schedule B regu-
lation, however, is a nonpublic reporting requirement, and
California has implemented security measures to ensure
that Schedule B information remains confidential.7
Nor have petitioners shown that their donors, or any or-
ganization’s donors, will face threats, harassment, or re-
prisals if their names remain in the hands of a few Califor-
nia state officials. The Court notes that, under Shelton,
disclosure requirements can chill association even absent
public disclosure. See ante, at 16. In Shelton, however,
——————
7 Although in the Court’s view, the actual risk of reprisals is apparently
irrelevant, the Court notes that the District Court concluded that Cali-
fornia’s attorney general could not ensure the confidentiality of Schedule
B information. See ante, at 17, n. But the Ninth Circuit held this finding
to be clearly erroneous because the District Court rested its conclusion
“solely on the state’s past inability to ensure confidentiality.” 903 F. 3d,
at 1019 (internal quotation marks omitted). The District Court never
explained why the current security measures were insufficient to protect
donors’ confidentiality. As the Ninth Circuit observed, “the changes the
Attorney General has adopted since those breaches occurred” show that
the “risk of inadvertent disclosure of any Schedule B information in the
future is small, and the risk of inadvertent disclosure of the plaintiffs’
Schedule B information in particular is smaller still.” Ibid.; see also n. 1,
supra.
16 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
there was a serious concern that hiring authorities would
punish teachers for their organizational affiliations. See
364 U. S., at 486. By contrast, the Court in no way suggests
that California officials will use Schedule B information to
retaliate against any organization’s donors. If California’s
reporting requirement imposes any burden at all, it is at
most a very slight one.
B
1
Given the modesty of the First Amendment burden, Cal-
ifornia may justify its Schedule B requirement with a cor-
respondingly modest showing that the means achieve its
ends. See Reed, 561 U. S., at 201. California easily meets
this standard.
California collects Schedule Bs to facilitate supervision of
charities that operate in the State. As the Court acknowl-
edges, this is undoubtedly a significant governmental inter-
est. See ante, at 12–13. In the United States, responsibility
for overseeing charities has historically been vested in
States’ attorneys general, who are tasked with prosecuting
charitable fraud, self-dealing, and misappropriation of
charitable funds. Effective policing is critical to maintain-
ing public confidence in, and continued giving to, charitable
organizations. California’s interest in exercising such over-
sight is especially compelling given the size of its charitable
sector. Nearly a quarter of the country’s charitable assets
are held by charities registered in California. Brief for
Scholars of the Law of Non-Profit Organizations as Amici
Curiae 10; see ibid. (“As of June 2018, charities registered
in California reported $295 billion in annual income and
net assets of $851 billion”).
The Schedule B reporting requirement is properly tai-
lored to further California’s efforts to police charitable
fraud. See Reed, 561 U. S., at 198–199 (noting that disclo-
Cite as: 594 U. S. ____ (2021) 17
SOTOMAYOR, J., dissenting
sure “helps” combat fraud, even if it is not the least restric-
tive method of doing so). The IRS Schedule B form requires
organizations to disclose the names and addresses of their
major donors, the total amount of their contributions, and
whether the donation was cash or in-kind. See 26 CFR
§§1.6033–2(a)(2)(ii), (iii). If the gift is in-kind, Schedule B
requires a description of the property and its fair market
value.
Schedule B and other parts of Form 990 help attorneys in
the Charitable Trusts Section of the California Department
of Justice (Section) uncover whether an officer or director of
a charity is engaged in self-dealing, or whether a charity
has diverted donors’ charitable contributions for improper
use. Appellant-Cross-Appellee’s Excerpts of Record in No.
16–55727 etc. (CA9), pp. 575, 716–718 (16–55727 ER). It
helps them determine whether a donor is using the charity
as a pass-through entity, including as a source of improper
loans that the donor repays as a contribution. Id., at 577–
578, 716–718. It helps them identify red flags, such as dis-
crepancies in reporting contributions across different
schedules. Id., at 578–579, 716–718. And it helps them de-
termine whether a charity has inflated the value of a do-
nor’s in-kind contribution in order, for instance, to overstate
how efficiently the charity expends resources. Id., at 721–
727.
As a former head of the Section described it, Schedule B
combined with the rest of Form 990 provides “[a] roadmap
to the rest of the investigation that follows.” Id., at 717.
Indeed, having Schedule Bs on hand is important to attor-
neys’ decisions regarding whether to advance an investiga-
tion at all. One of the first things an auditor or lawyer does
upon receiving a complaint is review the entire Form 990,
including Schedule B. Id., at 969–970, 996–997, 1062–
1063. One Section leader testified that she used Schedule
Bs “[a]ll the time” for this purpose. App. in No. 19–251, p.
413.
18 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
In sum, the evidence shows that California’s confidential
reporting requirement imposes trivial burdens on petition-
ers’ associational rights and plays a meaningful role in Sec-
tion attorneys’ ability to identify and prosecute charities en-
gaged in malfeasance. That is more than enough to satisfy
the First Amendment here.
2
Much of the Court’s tailoring analysis is categorically in-
appropriate under the correct standard of review. In any
event, the Court greatly understates the importance to Cal-
ifornia of collecting information on charitable organiza-
tions’ top donors.
The Court claims that the collection of Schedule Bs does
not form an “integral” part of California’s fraud detection
efforts and has never done “ ‘anything’ ” to advance investi-
gative efforts.8 Ante, at 13. The record reveals otherwise.
As discussed, Section leaders report that they use Schedule
Bs “[a]ll the time” and rely on them to create roadmaps for
their investigations. App. in No. 19–251, at 413; see also
16–55727 ER, at 717. The Court further complains that
California does not rely on Schedule Bs to “initiate” inves-
tigations. Ante, at 15, 19. But disclosure assists California
in its decisions whether to advance or end an investigation.
Perhaps the Court’s main concern is that California has not
identified enough instances in which Schedule B played a
unique role in prosecuting charitable malfeasance. But
“[l]ike a jigsaw puzzle,” investigations often advance “only
by placing in the proper place the many pieces of evidence
——————
8 The Court goes so far as to suggest that the State does not rely on
Schedule B collection to “prevent and police fraud” and to imply the Dis-
trict Court found the same. Ante, at 13–14. Yet the District Court ex-
pressly acknowledged that it did “not doubt that the Attorney General
does in fact use the Schedule Bs it collects.” Thomas More Law Center v.
Harris, 2016 WL 6781090, *2 (CD Cal., Nov. 16, 2016).
Cite as: 594 U. S. ____ (2021) 19
SOTOMAYOR, J., dissenting
that, taken singly, would show comparatively little.” An-
dresen v. Maryland, 427 U. S. 463, 481, n. 10 (1976).
The Court next insists that California can rely on alter-
native mechanisms, such as audit letters or subpoenas, to
obtain Schedule B information. But the Section receives as
many as 100 charity-related complaints a month. App. in
No. 19–251, at 307. It is not feasible for the Section, which
has limited staff and resources, to conduct that many au-
dits. See Appellant-Cross-Appellee’s Excerpts of Record in
No. 16–56855 etc. (CA9), pp. 512–513. The subpoena pro-
cess is also time consuming: Letters must go through mul-
tiple layers of review and waiting for a response causes fur-
ther delays during which a charity can continue its
malfeasance. App. in No. 19–251, at 412.
Implicitly acknowledging that audits and subpoenas are
more cumbersome and time consuming, the Court trivial-
izes the State’s interest in what it calls “ease of administra-
tion.” Ante, at 15. Yet in various contexts, the Court has
recognized that an interest in “efficiency” is critical to the
effective operation of public agencies.9 See, e.g., Bailey v.
United States, 568 U. S. 186, 200 (2013) (“[T]he law enforce-
ment interests in conducting a safe and efficient search”
justify detaining “occupants on the premises during the ex-
ecution of a search warrant”); Civil Service Comm’n v. Let-
ter Carriers, 413 U. S. 548, 564 (1973) (seeking a constitu-
tional balance between the interests of a government
employee in commenting on matters of public concern and
the interest of the government in the efficiency of the ser-
vices it performs).
In addition to being burdensome, audit letters and sub-
poenas can also significantly undercut the Section’s work
——————
9 Of course, an interest in efficiency cannot justify constitutional viola-
tions, but it is an important governmental interest when deciding
whether a constitutional violation has taken place at all. See Bailey v.
United States, 568 U. S. 186, 199–200 (2013).
20 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
by alerting an organization to the existence of an investiga-
tion, giving it a chance to hide assets or tamper with evi-
dence. The Court dismisses this concern as unsubstanti-
ated. Yet one Section head reported that this had
“happened several times,” and another testified to her per-
sonal experience with organizations “fabricat[ing]” and “de-
stroy[ing] records” after being tipped off to an investigation.
16–55727 ER, at 590, 998–999.10 A State surely has a com-
pelling interest in ensuring that the subject of an investiga-
tion does not destroy evidence or hide funds before investi-
gators have an opportunity to find them. Cf. Kentucky v.
King, 563 U. S. 452, 460 (2011) (“[T]he need to prevent the
imminent destruction of evidence has long been recognized
as a sufficient justification for a warrantless search” (inter-
nal quotation marks omitted)). The Court ignores those in-
terests here.
IV
In a final coup de grâce, the Court concludes that Califor-
nia’s reporting requirement is unconstitutional not just as
applied to petitioners, but on its very face. “In the First
Amendment context,” such broad relief requires proof that
the requirement is unconstitutional in “ ‘a substantial num-
ber of . . . applications . . . , judged in relation to the stat-
ute’s plainly legitimate sweep.’ ” United States v. Stevens,
559 U. S. 460, 473 (2010). “Facial challenges are disfavored
for several reasons,” prime among them because they “often
rest on speculation.” Washington State Grange v. Washing-
——————
10 The Court asserts that “the actions of investigators” do not “suggest
a risk of tipping off charities” because the Section’s standard practice is
to send an audit letter early in an investigation. Ante, at 14. Where the
Section suspects serious fraud, however, it obtains a temporary restrain-
ing order to freeze assets before ever contacting the charity. See 16–
55727 ER, at 591. The Section’s actions thus demonstrate exactly the
fear of tipping off charities that this Court so hastily dismisses.
Cite as: 594 U. S. ____ (2021) 21
SOTOMAYOR, J., dissenting
ton State Republican Party, 552 U. S. 442, 450 (2008). Spec-
ulation is all the Court has. The Court points to not a single
piece of record evidence showing that California’s reporting
requirement will chill “a substantial number” of top donors
from giving to their charities of choice.11 Yet it strikes the
requirement down in every application.
The average donor is probably at most agnostic about
having their information confidentially reported to Califor-
nia’s attorney general. A significant number of the chari-
ties registered in California engage in uncontroversial pur-
suits. They include hospitals and clinics; educational
institutions; orchestras, operas, choirs, and theatrical
groups; museums and art exhibition spaces; food banks and
other organizations providing services to the needy, the el-
derly, and the disabled; animal shelters; and organizations
that help maintain parks and gardens. Brief for Public Cit-
izen et al. as Amici Curiae 12–13. It is somewhat hard to
fathom that donors to the Anderson Elementary School
PTA, the Loomis-Eureka Lakeside Little League, or the
Santa Barbara County Horticultural Society (“[c]elebrating
plants since 1880”) are less likely to give because their do-
——————
11 The Court highlights the “filings of hundreds of organizations as
amici curiae in support of ” petitioners in this suit. Ante, at 17. Those
briefs, of course, are not record evidence. Moreover, even if those organ-
izations had each provided evidence that California’s reporting require-
ment would subject their top donors to harassment and reprisals (they
did not), this still would not demonstrate that a substantial proportion
of the reporting requirement’s applications are unconstitutional when
“ ‘judged in relation to [its] plainly legitimate sweep.’ ” United States v.
Stevens, 559 U. S. 460, 473 (2010). Some 60,000 charities renew their
registrations with California each year, and nearly all must file a Sched-
ule B. See ante, at 13. The amici are just a small fraction of the disclo-
sure requirement’s reach.
22 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
nations are confidentially reported to California’s Charita-
ble Trusts Section.12
In fact, research shows that the vast majority of donors
prefer to publicize their charitable contributions. See Dren-
nan, Where Generosity and Pride Abide: Charitable Nam-
ing Rights, 80 U. Cin. L. Rev. 45, 50 (2011) (“Research re-
veals that anonymous largesse from the wealthy has
become rare”); Posner, Altruism, Status, and Trust in the
Law of Gifts and Gratuitous Promises, 1997 Wis. L. Rev.
567, 574, n. 17 (“[C]haritable gifts are rarely made anony-
mously”). One study found that anonymous gifting ac-
counted for less than 1% of all donations to Yale Law
School, Harvard Law School, and Carnegie Mellon Univer-
sity. Glazer & Konrad, A Signaling Explanation for Char-
ity, 86 Am. Econ. Rev. 1019, 1021 (1996). Symptomatic of
this trend is the explosion in charitable naming rights since
the mid-1990s. Drennan, 80 U. Cin. L. Rev., at 50, 55. As
one author has recounted, “every nook and cranny of [pub-
lic] buildings” is now “tagged by some wealthy, generous
and obviously not publicity-shy donor.” Isherwood, The
Graffiti of the Philanthropic Class, N. Y. Times, Dec. 2,
2007.
Of course, it is always possible that an organization is in-
herently controversial or for an apparently innocuous or-
ganization to explode into controversy. The answer, how-
ever, is to ensure that confidentiality measures are sound
or, in the case of public disclosures, to require a procedure
for governments to address requests for exemptions in a
timely manner. It is not to hamper all government law en-
forcement efforts by forbidding confidential disclosures en
masse.
——————
12 See California Dept. of Justice, Office of Atty. Gen., Charity Regis-
tration Reports (June 15, 2021), https://oag.ca.gov/charities/reports#crr;
Santa Barbara County Horticultural Society (June 15, 2021),
https://www.sbchs.org.
Cite as: 594 U. S. ____ (2021) 23
SOTOMAYOR, J., dissenting
Indeed, this Court has already rejected such an indis-
criminate approach in the specific context of disclosure re-
quirements. Just over a decade ago, in Reed, petitioners
demonstrated that their own supporters would face reprisal
if their opposition to expanding domestic partnership laws
became public. That evidence did not support a facial chal-
lenge to Washington’s public disclosure law, however, be-
cause the “typical referendum petitio[n] concern[ed] tax pol-
icy, revenue, budget, or other state law issues,” and “there
[was] no reason to assume that any burdens imposed by dis-
closure of typical referendum petitions would be remotely
like the burdens plaintiffs fear in this case.” 561 U. S., at200–201 (internal quotation marks omitted); see also id., at
202–203 (ALITO, J., concurring) (“Many referendum peti-
tions concern relatively uncontroversial matters, and plain-
tiffs have provided no reason to think that disclosure of sig-
natory information in those contexts would significantly
chill the willingness of voters to sign. Plaintiffs’ facial chal-
lenge therefore must fail” (citation omitted)).
So too here. Many charitable organizations “concern rel-
atively uncontroversial matters” and petitioners “have pro-
vided no reason to think that” confidential disclosure of do-
nor information “would significantly chill the willingness
of ” most donors to give. Nor does the Court provide such a
reason. It merely highlights threats that public disclosure
would pose to these two petitioners’ supporters. Those
threats provide “scant evidence” of anything beyond “the
specific harm” that petitioners’ donors might experience
were their Schedule B information publicly disclosed. Id.,at 200–201. Petitioners’ “facial challenge therefore must
fail.” Id., at 203 (ALITO, J., concurring).
How, then, can their facial challenge succeed? Only be-
cause the Court has decided, in a radical departure from
precedent, that there no longer need be any evidence that a
disclosure requirement is likely to cause an objective bur-
den on First Amendment rights before it can be struck
24 AMERICANS FOR PROSPERITY FOUNDATION v. BONTA
SOTOMAYOR, J., dissenting
down.
* * *
Today’s decision discards decades of First Amendment ju-
risprudence recognizing that reporting and disclosure re-
quirements do not directly burden associational rights.
There is no other explanation for the Court’s conclusion
that, first, plaintiffs do not need to show they are actually
burdened by a disclosure requirement; second, every disclo-
sure requirement demands narrow tailoring; and third, a
facial challenge can succeed in the absence of any evidence
a state law burdens the associational rights of a substantial
proportion of affected individuals.
That disclosure requirements directly burden associa-
tional rights has been the view of JUSTICE THOMAS, see id.,
at 232 (dissenting opinion), but it has never been the view
of this Court. Just 11 years ago, eight Members of the
Court, including two Members of the current majority, rec-
ognized that disclosure requirements do not directly inter-
fere with First Amendment rights. See id., at 196 (majority
opinion). In an opinion barely mentioned in today’s deci-
sion, the Court in Reed did the opposite of what the Court
does today. First, it demanded objective evidence that dis-
closure risked exposing supporters to threats and reprisals;
second, it required only a loose means-end fit in light of the
“modest” burden it found; and third, it rejected a facial chal-
lenge given petitioners’ failure to establish that signatories
to the “typical” referendum had any reason to fear disclo-
sure. See id., at 200–201. In so doing, the Court ensured
that it would not “short circuit the democratic process by
preventing laws embodying the will of the people from be-
ing implemented in a manner consistent with the Constitu-
tion.” Washington State Grange, 552 U. S., at 451.
The Court 11 years later apparently has a different view
of its role. It now calls upon the federal courts to serve “as
virtually continuing monitors of the wisdom and soundness
Cite as: 594 U. S. ____ (2021) 25
SOTOMAYOR, J., dissenting
of [governmental] action.” Laird, 408 U. S., at 15. There is
no question that petitioners have shown that their donors
reasonably fear reprisals if their identities are publicly ex-
posed. The Court and I, however, disagree about the likeli-
hood of that happening and the role Schedule Bs play in the
investigation of charitable malfeasance. If the Court had
simply granted as-applied relief to petitioners based on its
reading of the facts, I would be sympathetic, although my
own views diverge. But the Court’s decision is not nearly
so narrow or modest. Instead, the Court jettisons com-
pletely the longstanding requirement that plaintiffs demon-
strate an actual First Amendment burden before the Court
will subject government action to close scrutiny. It then in-
validates a regulation in its entirety, even though it can
point to no record evidence demonstrating that the regula-
tion is likely to chill a substantial proportion of donors.
These moves are wholly inconsistent with the Court’s prec-
edents and our Court’s long-held view that disclosure re-
quirements only indirectly burden First Amendment
rights. With respect, I dissent.