On Monday, the Supreme Court heard arguments in the key First Amendment case Americans for Prosperity v. Rodriguez, which centers on the State of California’s requirement that nonprofit organizations disclose their donor information to the state. Back in 2015, then-Attorney General Kamala Harris (D-Calif.) demanded that two conservative nonprofits, Americans for Prosperity (AFP) and the Thomas More Law Center (TMLC), hand over their donor lists. This demand threatened to reveal the identities of donors, potentially subjecting them to threats and harassment. //

“The justices appreciated very well that membership and donations to an organization are protected by a right to privacy in association, not just a right to associate,” Kathleen Sullivan, legal counsel for Americans for Prosperity Foundation, said on a press call after the oral arguments on Monday.

She noted that the justices cited many friend-of-the-court briefs written by ideological opponents of AFP and TMLC that nonetheless support these conservative organizations’ rights to donor anonymity. The American Civil Liberties Union (ACLU), the National Association for the Advancement of Colored People (NAACP), and the Human Rights Campaign (HRC) proved particularly noteworthy in this regard.

Many of the justices cited the key legal precedent NAACP v. Alabama (1958), in which the Supreme Court struck down Alabama’s order that the NAACP hand over a list of its members. Alabama issued this order during the era of segregation when the Ku Klux Klan held tremendous power in the state. The Court rightly upheld the NAACP’s organizational privacy.

“In particular, the justices seem to understand that what is not controversial today may be controversial tomorrow,” and that views that are now commonly-held were controversial in the past, Sullivan noted. //

Justice Clarence Thomas “explained that the government used confidential census data information to locate Japanese citizens for internment,” Bursch noted. “Sotomayor noted that donors may not have faith in California” because the state had leaked the records of more than 1,700 donors. //

When California’s lawyers argued that most non-profits would not object to providing donor lists, Justice Amy Coney Barrett said, “That’s not how the First Amendment works.” She noted that speech zones on college campuses may violate the First Amendment even if most students support speech zones.