See also:United States Court of Appeals for the Ninth Circuit (Americans for Prosperity Foundation v. Becerra, 2:14-cv-09448-R-FFM)

On March 29, 2019, theUnited States Court of Appeals for the Ninth Circuitdeclined a request for en banc review of an earlier judgment upholding a California donor disclosure law. In anen banc review, the entire bench takes up the case, as opposed to the customary three-judge panel that typically hears appeals.^[5]

The law in question requires nonprofit organizations to file copies of their IRS 990 forms with the state. Schedule B of this form includes the names and addresses of all individuals who donate more than $5,000 to the organization in a given tax year. The California law requires that nonprofits furnish the state with Schedule B forms. Although the law does not provide for the public release of Schedule B information, court documents indicate inadvertent disclosures have occurred. Americans for Prosperity Foundation filed suit against the state in federal court, alleging a violation of their First Amendment rights. In 2016, JudgeManuel Real, appointed to theUnited States District Court for the Central District of California by President Lyndon Johnson (D),found in favor of the plaintiff and enjoined the state from collecting Schedule B information from Americans for Prosperity Foundation.^[6]

A three-judge panel of the Ninth Circuit unanimously overturned Real's ruling in 2018. That panel comprised JudgesRaymond Fisher,Richard Paez, andJacqueline Nguyen. Fisher and Paez were appointed to the court by President Bill Clinton (D); Nguyen was appointed by President Barack Obama (D). Americans for Prosperity Foundation petitioned the Ninth Circuit for en banc review. That petition was rejected on March 29, 2019, with five judges dissenting.^[7]

JudgeSandra Ikuta, appointed to the court by President George W. Bush (R), wrote the following in thedissent: “Under the panel’s analysis, the government can put the First Amendment associational rights of members and contributors at risk for a list of names it does not need, so long as it promises to do better in the future to avoid public disclosure of the names. Given the inability of governments to keep data secure, this standard puts anyone with controversial views at risk. We should have reheard this case en banc to reaffirm the vitality ofNAACP v. Alabama’s protective doctrine, and to clarify that Buckley’s watered-down standard has no place outside of the electoral context." JudgesConsuelo Maria Callahan,Carlos Bea,Mark J. Bennett, andRyan D. Nelson joined the dissent. Callahan and Bea were appointed to the court by Bush; Bennett and Nelson were appointed by President Donald Trump (R).^[7]

Judges Fisher, Paez, and Nguyen wrote in response to the dissent, "Requiring thenonpublic disclosure of Schedule B information comports with the freedom of association protected by the First Amendment because it allows state and federal regulators to protect the public from fraud without exposing contributors to the threats, harassment or reprisals that might followpublic disclosure."^[7]

Dave Abrams, a spokesman for Americans for Prosperity Foundation,said, "We’re assessing the order and reviewing options. We appreciate the dissent’s recognition of why this case is so important. We’re committed to championing First Amendment liberties for all Americans and speaking out against measures that risk chilling diverse public discourse."^[5]

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