Ninth Circuit vs. Free Speech

The Senate will soon vote on Supreme Court nominee Brett Kavanaugh, even as events highlight the constitutional stakes. The Ninth Circuit Court of Appeals struck again Tuesday, handing California’s Attorney General the power to intimidate political donors.

The Americans for Prosperity Foundation in 2016 convinced a federal judge to impose a permanent injunction against the California AG’s demand that nonprofits hand over the unredacted names of their donors. The group, which is connected to businessmen Charles and David Koch, argued that the state had no legitimate law-enforcement interest in obtaining the names.

Judge Manuel Real agreed and found that the AG’s failure to protect donor names put the foundation’s members and donors at risk of harassment and retaliation.

A Ninth Circuit panel swept past the trial evidence to vacate the injunction and reverse Judge Real. The judge had noted that the Attorney General struggled “to find a single witness who could corroborate the necessity of [donor names] in conjunction with their office’s investigations.” The Ninth Circuit panel brushed this aside on grounds that the AG had a “strong interest” in donor names to investigate fraud.

The lower court also found that the Attorney General had “systematically failed to maintain the confidentiality” of donor names, noting that thousands were posted on the AG’s public website. No less than the progressive NAACP filed an amicus brief on behalf of the foundation, listing the Supreme Court’s precedents on the damage to speech rights that can accompany forced disclosure. Most famously, in NAACP v. Alabama in 1958, the High Court protected the NAACP’s membership lists from disclosure to the state government.

The Ninth Circuit waved aside the security lapses and dismissed the “undeniably” real threats against foundation supporters, claiming it isn’t a “foregone conclusion” that harm would result from disclosure. Nothing like judicial nonchalance about the Constitution.

The polarization of American politics is raising the risks of disclosure for donors, though the judicial left won’t admit it. Americans for Prosperity says it will seek a rehearing before the full Ninth Circuit, and if necessary the Supreme Court. A reaffirmation of the constitutional burdens of disclosure is overdue.


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