James Madison Center for Free Speech Files U.S. Supreme Court Brief Establishing the Dangers of Donor Disclosure from the California Prop 8 Experience

Posted by James Madison CenterFeb 23, 20210 Comments

February 23, 2021
Contact: James Bopp, Jr., General Counsel
Phone 812-232-2434; Fax 812-235-3685; [email protected]

Today, the James Madison Center for Free Speech (“JMCFS”), filed a friend of the court brief in two U.S. Supreme Court cases considering California's requirement that nonprofit groups give California the donor-disclosure documents they file with the IRS. Charities provide the names and addresses of contributors in their annual IRS filings on Schedule B, which typically remains private. But California requires charities to send Schedules B to it too.

Sending this personal information about donors exposes it to California officials and government personnel, which is a risk in itself. But this proliferation of governmental entities demanding Schedules B also increases the risk of inadvertent or intentional disclosure to the public. Such disclosure runs a substantial, unreasonable risk of severe consequences for donors and the groups.

The JMCFS amicus brief presented evidence of the results of disclosing the personal information of contributors to a political cause from the experience of supporters of California's Proposition 8, the amendment to the California Constitution to establish marriage between one man and one woman. Gay-rights advocates used the personal information publicly provided under California law to launch a vicious campaign of harassment, intimidation and reprisals against Prop 8 supporters. The campaign was aimed at intimidating supporters from associating with Prop 8 advocacy groups in violation of their First Amendment rights.

In 2009, the law firm of James Bopp, Jr., who is also JMCFS's General Counsel, took the case of ProtectMarriage.com–Yes on 8, the advocacy group at the center of the maelstrom over Prop 8. As a result of California's publication of the personal information of Prop 8 supporters, that information was published by Prop 8 foes on websites, including with maps showing donors' homes and businesses, facilitating gay rights supporters' attacks. Mr. Bopp's firm, gathered overwhelming evidence of the ugly backlash.

The JMCFS amicus brief presented some of that evidence for the U.S. Supreme Court. The evidence filed in the Prop. 8 case provided (1) undisputed testimony and evidence of over 80 instances of harassment, intimidation, and reprisals against 58 “John Does”—people allowed to testify anonymously for their own protection; (2) links to 14 videos reporting and in some cases recording ugly and sometimes violent confrontations and “protests” with Prop. 8 supporters; and (3) 157 contemporaneously published accounts of harassment, intimidation and reprisals directed at Prop 8 supporters.

California's release of personal information led directly to death threats, threats of violence, vandalism, threats of destruction of property, arson, threats of arson, angry and lewd protests, intimidating emails and phone calls, mailed envelopes of suspicious powder, entire web sites dedicated to blacklisting supporters of traditional marriage and similar causes, loss of employment and job opportunities, intimidation and reprisals on campus and in the classroom, economic reprisals and demands for “hush money,” and gross expressions of anti-religious bigotry, including vandalism and threats directed at religious institutions and religious adherents.

This vicious campaign cast a chill over supporters and would-be supporters of an organization advocating a position on an important and fundamental political and social cause. And that is a violation of the First Amendment right to speech and association. The ProtectMarriage.com evidence compellingly establishes the grave constitutional injuries that can result from disclosing ordinary citizens' personal information simply because they've donated to a group that supports their own views on an issue of public importance.

James Bopp, Jr. comments: “California has no compelling need for the personal information of donors to nonprofit advocacy groups. Today, more than ever, there's no doubt that public disclosure of personal information about supporters of advocacy groups can enable the thuggish to browbeat, punish, and ultimately cow their political opponents into silence. There's no need for California to have the information, and there's a clear danger of fundamental First Amendment injury in its release. Consequently, the U.S. Supreme Court has always required strong, special justification from government seeking such disclosure, and lacking that, California's requirement should not be allowed.”

The amicus brief is available on the JMCFS website here. The consolidated cases are listed on the Supreme Court docket as No. 19-251 (Americans for Prosperity Foundation) and 19-255 (Thomas More Law Center v. Becerra).

James Bopp, Jr. is General Counsel for the James Madison Center for Free Speech and has a national constitutional law practice with The Bopp Law Firm, PC.