April 29, 2016

VICTORY! How a judge compared California Atty General to segregationist Alabama

Watch judge slap down power mad Attorney General. Retweet

On February 9, we told you about an amicus brief we’d filed in the case Americans for Prosperity v. Kamala D. Harris, by virtue of our membership in the Free Speech Coalition. We were so busy with other briefs and projects we hadn’t even come to request any funding for this one. Well, now we’re pleased to tell you the court has ruled. The result…


Ms. Harris, the California Attorney General, has been permanently enjoined from requiring charities to provide their IRS 990 Schedule Bs as a precondition for raising money in her state. Schedule Bs contain sensitive personal information about donors such as names, home addresses, and amounts.

Our brief argued that…

  • Ms. Harris created this requirement herself. There is no legislative basis for it.
  • The requirement violates federal tax law, which holds that Schedule B information must not be exposed to the public.
  • The 9th Circuit ruling that supported Ms. Harris was wrong because it compared charities to political campaigns. There donor reporting is still required. But charities are legally prohibited from participating in election campaigns. Thus, the 9th Circuit’s analogy fails. But even more fundamentally…
  • U.S. law has historically protected anonymous speech. Election law, since 1974, has been the only exception (and defect) of this liberty.
  • Exposing donor information can create a chilling effect on giving, as demonstrated by civil rights activists in the segregationist south.

Well, we got what we wanted, though not in the exact way we requested. We were working one level up, in the Appeals Court. Strategically, we were trying to clear a path for a “facial” challenge — to get this kind of behavior made unconstitutional on its face. Instead, due to a technicality…

District Judge Manuel Real was only able to rule that Ms. Harris’s requirement places an unconstitutional burden on the free speech of Americans for Prosperity — an “as applied” decision. The judge’s 12-page decision took Ms. Harris to task on a number of fronts, including those two…

  1. Ms. Harris claimed the donor records were for internal use and would not be disclosed to the public. Oops! Americans for Prosperity found a whopping 1,400 Schedule Bs available to the public on her website.
  2. Ms. Harris said she needed all of this info to identify lawbreaking. Oops! She was unable to present any evidence that she had used the information in this way.

In fact, Judge Real couldn’t have been much harsher in his excoriation of Ms. Harris. So we doubt that other states will try to copy what she did (though we’re still worried about New York).

The judge, who was an LBJ appointee during the civil rights era, also took note of evidence presented by Americans for Prosperity that some of their donors have faced harassment as a result of having their identifies exposed to the public. The judge wrote…

“[A]lthough the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from that era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

We hope you’re as encouraged by this victory as we are.

It was possible for us to participate in this case by virtue of our longtime membership in the Free Speech Legal Defense Fund and the Free Speech Coalition. Our own Jim Babka sits on the committee that determines legal and legislative strategy in those groups.

Your support makes this work possible, so…

Thank you,

Perry Willis
Downsize DC Foundation

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