Americans for Prosperity Found. v. Becerra, 16-55727
| Decision Date | 29 March 2019 |
| Docket Number | No. 16-55727, No. 16-56855, No. 16-55786, No. 16-56902,16-55727 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | AMERICANS FOR PROSPERITY FOUNDATION, Plaintiff-Appellee, v. Xavier BECERRA, in his Official Capacity as Attorney General of the State of California, Defendant-Appellant. Americans for Prosperity Foundation, Plaintiff-Appellant, v. Xavier Becerra, in his Official Capacity as Attorney General of the State of California, Defendant-Appellee. Thomas More Law Center, Plaintiff-Appellee, v. Xavier Becerra, in his Official Capacity as Attorney General of the State of California, Defendant-Appellant. Thomas More Law Center, Plaintiff-Appellant, v. Xavier Becerra, in his Official Capacity as Attorney General of the State of California, Defendant-Appellee. |
Judge Paez and Judge Nguyen have voted to deny the petitions for rehearing en banc and Judge Fisher has so recommended.
The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.
The petitions for rehearing en banc (Nos. 16-55727 and 16-55786, filed September 25, 2018 - Dkt. 106; and Nos. 16-56855 and 16-56902, filed September 26, 2018 - Dkt. 67) are DENIED .
Controversial groups often face threats, public hostility, and economic reprisals if the government compels the organization to disclose its membership and contributor lists. The Supreme Court has long recognized this danger and held that such compelled disclosures can violate the First Amendment right to association. See, e.g. , NAACP v. Alabama ex rel. Patterson , 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
For this reason, the Supreme Court has given significant protection to individuals who may be victimized by compelled disclosure of their affiliations. Where government action subjects persons to harassment and threats of bodily harm, economic reprisal, or "other manifestations of public hostility," NAACP v. Alabama , 357 U.S. at 462, 78 S.Ct. 1163, the government must demonstrate a compelling interest, id. at 463, 78 S.Ct. 1163 ; Bates v. Little Rock , 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960), there must be a substantial relationship between the information sought and the compelling state interest, Gibson v. Fla. Legislative Investigation Comm. , 372 U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963), and the state regulation must "be narrowly drawn to prevent the supposed evil," Louisiana ex rel. Gremillion v. NAACP , 366 U.S. 293, 297, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961) (internal quotation marks omitted) (quoting Cantwell v. Connecticut , 310 U.S. 296, 307, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) ).
This robust protection of First Amendment free association rights was desperately needed here. In this case, California demanded that organizations that were highly controversial due to their conservative positions disclose most of their donors, even though, as the district court found, the state did not really need this information to accomplish its goals. Although the state is required to keep donor names private, the district court found that the state’s promise of confidentiality was illusory; the state’s database was vulnerable to hacking and scores of donor names were repeatedly released to the public, even up to the week before trial. See Ams. for Prosperity Found. v. Harris , 182 F.Supp.3d 1049, 1057 (C.D. Cal. 2016). Moreover, as the district court found, supporters whose affiliation had previously been disclosed experienced harassment and abuse. See id. at 1055–56. Their names and addresses, and even the addresses of their children’s schools, were posted online along with threats of violence. Some donors’ businesses were boycotted. In one incident, a rally of the plaintiff’s supporters was stormed by assailants wielding knives and box cutters, who tore down the rally’s tent while the plaintiff’s supporters struggled to avoid being trapped beneath it. In light of the powerful evidence at trial, the district court held the organizations and their donors were entitled to First Amendment protection under the principles of NAACP v. Alabama . See id. at 1055.
The panel’s reversal of the district court’s decision was based on appellate factfinding and crucial legal errors. First, the panel ignored the district court’s factfinding, holding against all evidence that the donors’ names would not be made public and that the donors would not be harassed. See Ams. for Prosperity Found. v. Becerra , 903 F.3d 1000, 1017, 1019 (9th Cir. 2018) (" AFPF II "). Second, the panel declined to apply NAACP v. Alabama , even though the facts squarely called for it. See id. at 1008–09. Instead, the panel applied a lower form of scrutiny adopted by the Supreme Court for the unique electoral context. See Buckley v. Valeo , 424 U.S. 1, 64, 68, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The panel’s approach will ensure that individuals affiliated with controversial organizations effectively have little or no protection from compelled disclosure. We should have taken this case en banc to correct this error and bring our case law in line with Supreme Court jurisprudence.
The Supreme Court has established a clear test for cases like this one. While the Court has modified the test to fit different contexts, it has not wavered from the principle that the First Amendment affords organizations and individuals substantial protection when the government tries to force disclosure of ties that could impact their freedom of association.
The Supreme Court decisions protecting against forced disclosures that threaten individuals’ freedom of association arose in a series of cases involving the NAACP. See, e.g. , NAACP v. Alabama , 357 U.S. 449, 78 S.Ct. 1163 ; Bates , 361 U.S. 516, 80 S.Ct. 412 ; Gremillion , 366 U.S. 293, 81 S.Ct. 1333 ; Gibson , 372 U.S. 539, 83 S.Ct. 889. The Court considered numerous attempts by states to compel disclosure of NAACP membership information at a time when those members faced a well-known risk of "economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." NAACP v. Alabama , 357 U.S. at 462, 78 S.Ct. 1163 ; see also Gremillion , 366 U.S. at 295–96, 81 S.Ct. 1333 ; Bates , 361 U.S. at 523–24, 80 S.Ct. 412.
In this broader context, the Court recognized that "[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association" as more direct restrictions on speech. NAACP v. Alabama , 357 U.S. at 462, 78 S.Ct. 1163. "[F]reedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States ... not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates , 361 U.S. at 523, 80 S.Ct. 412 (citations omitted).
Because state disclosure requirements can abridge First Amendment associational rights, the Court held such requirements were subject to heightened scrutiny. Once a plaintiff carries the burden of showing that a state-required disclosure may result "in reprisals against and hostility to the members," Gremillion , 366 U.S. at 296, 81 S.Ct. 1333, the state has to show: (1) a sufficiently compelling interest for requiring disclosure, see NAACP v. Alabama , 357 U.S. at 462–63, 78 S.Ct. 1163 ; (2) that the means were substantially related to that interest, Gibson , 372 U.S. at 549, 83 S.Ct. 889 ; and (3) that the means were narrowly tailored, Gremillion , 366 U.S. at 296, 81 S.Ct. 1333. While the Supreme Court has articulated this three-part test in various ways, it has made clear that the test affords substantial protection to persons whose associational freedoms are threatened.
The Court modified the NAACP v. Alabama test for application in the electoral context. See Buckley , 424 U.S. at 64, 68, 96 S.Ct. 612. Buckley recognized the importance of applying "[t]he strict test established by NAACP v. Alabama ... because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights," but it adjusted the test for government action that affects elections when the plaintiffs could not establish that disclosure would subject them to threats or harassment. Id. at 66, 96 S.Ct. 612. It makes sense to adapt the NAACP v. Alabama test for the electoral context, where the government’s interest is uniquely important. Influence in elections may result in influence in government decisionmaking and the use of political power; therefore, the government’s crucial interest in avoiding the potential for corruption and hidden leverage outweighs incidental infringement on First Amendment rights. Id. at 66–68, 71, 96 S.Ct. 612. The interests served by disclosure outside the electoral context, such as policing types of charitable fraud, pale in comparison to the crucial importance of ensuring our election system is free from corruption or its appearance.
Given the unique electoral context, Buckley held that, for the first prong, the governmental interest must be "sufficiently important to outweigh the possibility of infringement" of First Amendment rights; the government did not need to show a compelling government interest. Id. at 66, 96 S.Ct. 612. For the second prong, it still held there must be a "substantial relation between the governmental interest and the information required to be disclosed." Id. at 64, 96 S.Ct. 612 (footnote and internal quotation marks omitted) (quoting Gibson , 372 U.S. at 547, 83 S.Ct. 889 ).
As to the third prong of the test, Buckley fashioned a per se rule:...
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