These Nonprofit 'Disclosure' Requirements Are an Assault on the First Amendment

California Attorney General Xavier Becerra says he wants to prevent charitable fraud, while the House Democrats who approved the "For the People Act" last week say they want to fortify democracy, fight corruption, and block foreign interference in U.S. elections. But the methods they have chosen pose a serious threat to freedom of speech and freedom of association.

Under a policy at the center of a First Amendment case the Supreme Court will hear this term, Becerra requires that all 115,000 nonprofit organizations operating in California report information about their major donors. That information is supposed to be confidential, but in practice it is not, because California has a history of accidentally posting it online and making it easily available to anyone with rudimentary hacking skills.

In a 1958 case involving Alabama's demand that the National Association for the Advancement of Colored People disclose its membership lists, the Supreme Court recognized that such requirements can have a chilling effect on freedom of association, because they expose supporters of controversial groups to harassment and threats of violence. When the government compels disclosure of organizational information that may result in "reprisals against and hostility to the members," the Court has said, it must show that the policy is "substantially related" to a "compelling" government interest and "narrowly tailored" for that purpose.