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Tuesday, June 29, 2021

Abrams Institute Files Amicus Brief in SCOTUS Donor Disclosure Case 

Sterling Law Building

The Media Freedom and Information Access Clinic (MFIA) prepared a Supreme Court amicus brief on behalf of the Abrams Institute for Freedom of Expression this semester in a closely-watched case about compelled disclosure of donors to nonprofit organizations.  

The consolidated cases — Americans for Prosperity v. Xavier Becerra and Thomas Moore Law Center v. Xavier Becerra — involved a challenge to a requirement in California that nonprofits provide the attorney general with their Schedule B forms, confidential listings of their major donors. The petitioners claim that requiring donor disclosure violates the First Amendment’s protection for freedom of association, even though the state is supposed to prevent that information from becoming public. 

The MFIA brief supported neither party but advanced the proposition that the public does have a First Amendment interest in knowing the identities of major donors to nonprofits that advocate on issues of public policy. Forty briefs, representing well over 100 parties, supported the petitioners in seeking to overturn the disclosure requirement at issue. The MFIA brief was the only brief to remind the Court of the public’s independent interest in knowing donor information — an interest the Supreme Court has repeatedly recognized in cases involving election campaigns, but has not yet delineated outside the electoral context. 

The brief drew the Court’s attention to the strong First Amendment interest in more, rather than less, public disclosure — which counterbalances the petitioners’ stated interests in freedom of association. As the Supreme Court recognized in Citizens United, the public in a democracy needs information that will enable it to “make informed decisions and give proper weight to different speakers and messages.” Although Citizens United discussed disclosure in the context of election-related messages, the public’s interest in disclosure is similarly strong outside of the election context, and it should lead to greater dissemination of information about who is actually trying to persuade the public.

A series of examples in the MFIA brief illustrated the issue. In one, an ad campaign paid for by A Healthy Choice, a 501(c)(4) nonprofit that does not disclose its donors, warned people about the supposed danger of an executive order by then-President Donald Trump aimed at lowering prescription drug costs. It stated, “America needs a cure for COVID-19 now and innovative biopharmaceutical companies are rising to the challenge. So why is President Trump risking American lives with dangerous executive orders?” What should the public make of those statements, and how should other speakers respond? The answers necessarily depended on who was speaking through the ads. The public’s understanding of the message would be markedly different if it turned out the ads were paid for by a group of emergency room doctors, or an association of insurance companies, or a single Democratic activist. But there was no way to know. 

“The same standard for disclosure requirements should apply inside and outside of electoral campaigns, since the public has just as great an interest in knowing who is trying to influence it,” according to Michael Linhorst, MFIA Clinic’s Craig Newmark Fellow. “We need to know what the people behind these million dollar ad campaigns stand to gain from their funding.”

The Media Freedom and Information Access Clinic (MFIA) is a law student clinic dedicated to increasing government transparency, defending the essential work of newsgatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation, and developing policy initiatives. 

By Leah Ferentinos