Americans for Prosperity Foundation v. Bonta

Does a California tax law violate the freedom of assembly? 

If you want to be a nonprofit organization in California, you must disclose your donors to the Attorney General. This disclosure ostensibly makes future law enforcement more “efficient.” But California’s requirement is a national outlier and invites harassment. Indeed, in the past, the California Attorney General’s Office has leaked sensitive information like a sieve, resulting in donor harassment.  Americans for Prosperity Foundation (AFP) did not submit to the disclosure requirement and, as a result, in 2013, California threatened to revoke AFP’s nonprofit status.  

There and back again: a journey through the courts 

AFP sued California in December 2014. It claimed that California’s mandatory donor disclosure requirement violates the right to “freedom of association”—a right protected by the U.S. Constitution, but with unclear basis in the Constitution’s text, history, or tradition. This confusion led the Ninth Circuit Court of Appeals to reverse AFP’s trial court victory. It claimed that, since nothing is “distinguishable” between associating for political campaigns (where disclosure ensures democratic accountability) and associating for any other charitable purpose, the law permitted California to demand disclosure of every nonprofits’ donors.   

AFP appealed the Ninth Circuit ruling to the U.S. Supreme Court, which granted AFP’s petition on January 8, 2021. Oral argument was held on April 26, 2021.  

An opportunity to set straight the meaning of “freedom of assembly” 

On March 1, 2021, Becket filed an amicus brief at the U.S. Supreme Court, and our argument about the freedom of assembly was mentioned during oral arguments by three of the Justices and extensively discussed by advocates for both AFP and California. Our brief urged the Court to use this case as an opportunity to correct the courts’ decades-long faulty interpretation of the Assembly Clause, which focuses primarily on protecting expression. This error at the core of the Ninth Circuit’s decision has led to decades of bad rulings against religious and other assemblies, and it restricts the Constitution’s protection for civil society. As our brief explains, assemblies should not be protected based on how “expressive” they are. Rather, the text, history, and tradition of the First Amendment’s Assembly Clause confirms that assemblies primarily exist for formative purposes—shaping people in beliefs and customs, regardless of their political expression or popularity.   

Our brief argued that the freedom of assembly is grounded in, and was historically understood to come from, the freedom to assemble for the purpose of worship. By looking to our long national tradition of how and why we protect religious assembly, the law can better protect the right to assemble generally, and the right to not give the government the tools to squelch private assemblies out of existence (or into submission). Properly applying that tradition dooms California’s donor disclosure requirement and shores up legal protections for civil society.  

On July 1, 2021, the U.S. Supreme Court ruled that the First Amendment protects collective action for “preserving political and cultural diversity” and that “[m]ere administrative convenience” is not enough to restrict First Amendment freedoms. Justice Thomas’ concurring opinion cited Becket’s amicus brief, noting that “[t]he text and history of the Assembly Clause” include “the right to associate anonymously.” 

Importance to Religious Liberty 

• Freedom of assembly: The First Amendment includes “the right of the people peaceably to assemble.” Contrary to popular interpretations, which link freedom of assembly most closely to freedom of speech, the freedom of assembly is grounded in the freedom to assemble for formative purposes. Self-government depends upon shaping individuals to govern themselves, and that is what safeguarding space for civil society permits.