Americans for Prosperity Foundation v. Bonta

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 2
Pages 595–646
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
July 1, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
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OCTOBER
TERM, 2020
595
Syllabus
AMERICANS FOR PROSPERITY FOUNDATION v.
BONT
A, ATTORNEY GENERAL OF CALIFORNIA
certiorari to the united states court of appeals for
the ninth circuit
No. 19–251. Argued April 26, 2021—Decided July 1, 2021*
Charitable organizations soliciting funds in California must disclose the
identities of their major donors to the state Attorney General's Offce.
Charities generally must register with the Attorney General and renew
their registrations annually. The Attorney General requires charities
renewing their registrations to fle copies of their Internal Revenue
Service Form 990, a form on which tax-exempt organizations provide
information about their mission, leadership, and fnances. Schedule B
to Form 990—the document that gives rise to the present dispute—
requires organizations to disclose the names and addresses of their
major donors. The State contends that having this information readily
available furthers its interest in policing misconduct by charities.
The petitioners are two tax-exempt charities that solicit contributions
in California. Since 2001, each petitioner has renewed its registration
and has fled a copy of its Form 990 with the Attorney General, as re-
quired by Cal. Code Regs., tit. 11, § 301. To preserve their donors' ano-
nymity, however, the petitioners have declined to fle unredacted Sched-
ule Bs, and they had until recently faced no consequences for
noncompliance. In 2010, the State increased its enforcement of chari-
ties' Schedule B disclosure obligations, and the Attorney General ulti-
mately threatened the petitioners with suspension of their registrations
and fnes for noncompliance. The petitioners each responded by fling
suit in District Court, alleging that the compelled disclosure require-
ment violated their First Amendment rights and the rights of their do-
nors. Disclosure of their Schedule Bs, the petitioners alleged, would
make their donors less likely to contribute and would subject them to
the risk of reprisals. Both organizations challenged the constitutional-
ity of the disclosure requirement on its face and as applied to them.
In each case, the District Court granted preliminary injunctive relief
prohibiting the Attorney General from collecting the petitioners' Sched-
ule B information. The Ninth Circuit vacated and remanded, reasoning
that Circuit precedent required rejection of the petitioners' facial chal-
*Together with No. 19–255, Thomas More Law Center v. Bonta, also on
certiorari to the same court.

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596 AMERICANS
FOR PROSPERITY FOUNDATION v. BONTA
Syllabus
lenge. Reviewing the petitioners' as-applied claims under an “exacting
scr
utiny” standard, the panel narrowed the District Court's injunction,
and it allowed the Attorney General to collect the petitioners' Schedule
Bs so long as they were not publicly disclosed. On remand, the District
Court held bench trials in both cases, after which it entered judgment
for the petitioners and permanently enjoined the Attorney General from
collecting their Schedule Bs. Applying exacting scrutiny, the District
Court held that disclosure of Schedule Bs was not narrowly tailored to
the State's interest in investigating charitable misconduct. The court
found little evidence that the Attorney General's investigators relied
on Schedule Bs to detect charitable fraud, and it determined that the
disclosure regime burdened the associational rights of donors. The Dis-
trict Court also found that California was unable to ensure the con-
fdentiality of donors' information. The Ninth Circuit again vacated the
District Court's injunctions, and this time reversed the judgments and
remanded for entry of judgment in favor of the Attorney General. The
Ninth Circuit held that the District Court had erred by imposing a nar-
row tailoring requirement. And it reasoned that the disclosure regime
satisfed exacting scrutiny because the up-front collection of charities'
Schedule Bs promoted investigative effciency and effectiveness. The
panel also found that the disclosure of Schedule Bs would not meaning-
fully burden donors' associational rights. The Ninth Circuit denied
rehearing en banc, over a dissent.
Held: The judgment is reversed, and the cases are remanded.
903 F. 3d 1000, reversed and remanded.
The Chief Justice delivered the opinion of the Court with respect
to all but Part II–B–1, concluding that California's disclosure require-
ment is facially invalid because it burdens donors' First Amendment
rights and is not narrowly tailored to an important government interest.
Pp. 605–607, 608–619.
(a) The Court reviews the petitioners' First Amendment challenge to
California's compelled disclosure requirement with the understanding
that “compelled disclosure of affliation with groups engaged in advocacy
may constitute as effective a restraint on freedom of association as
[other] forms of governmental action.” NAACP v. Alabama ex rel.
Patterson, 357 U. S. 449, 462. NAACP v. Alabama did not phrase in
precise terms the standard of review that applies to First Amendment
challenges to compelled disclosure. In Buckley v. Valeo, 424 U. S. 1, 64
(per curiam), the Court articulated an “exacting scrutiny” standard,
which requires “a substantial relation between the disclosure require-
ment and a suffciently important governmental interest,” Doe v. Reed,
561 U. S. 186, 196. The parties dispute whether exacting scrutiny ap-

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597
Syllabus
plies in these cases, and if so, whether that test imposes a least restric-
tive
means requirement similar to the one imposed by strict scrutiny.
The Cour t concludes that exac ti ng scr uti ny requires that a
government-mandated disclosure regime be narrowly tailored to the
government's asserted interest, even if it is not the least restrictive
means of achieving that end. The need for narrow tailoring was set
forth early in the Court's compelled disclosure cases. In Shelton v.
Tucker, 364 U. S. 479, the Court considered an Arkansas statute that
required teachers to disclose every organization to which they belonged
or contributed. The Court acknowledged the importance of “the right
of a State to investigate the competence and ftness of those whom it
hires to teach in its schools,” and it distinguished prior decisions that
had found “no substantially relevant correlation between the govern-
mental interest asserted and the State's effort to compel disclosure.”
Id., at 485. But the Court invalidated the Arkansas statute because
even a “legitimate and substantial” governmental interest “cannot be
pursued by means that broadly stife fundamental personal liberties
when the end can be more narrowly achieved.” Id., at 488. Shelton
stands for the proposition that a substantial relation to an important inter-
est is not enough to save a disclosure regime that is insuffciently tailored.
Where exacting scrutiny applies, the challenged requirement must be
narrowly tailored to the interest it promotes. Pp. 605–607, 608–611.
(b) California's blanket demand that all charities disclose Schedule Bs
to the Attorney General is facially unconstitutional. Pp. 611–619.
(1) The Ninth Circuit did not impose a narrow tailoring require-
ment to the relationship between the Attorney General's demand for
Schedule Bs and the identifed governmental interest. That was error
under the Court's precedents. And properly applied, the narrow tailor-
ing requirement is not satisfed by California's disclosure regime. In
fact, a dramatic mismatch exists between the interest the Attorney Gen-
eral seeks to promote and the disclosure regime that he has implemented.
The Court does not doubt the importance of California's interest
in preventing charitable fraud and self-dealing. But the enormous
amount of sensitive information collected through Schedule Bs does not
form an integral part of California's fraud detection efforts. California
does not rely on Schedule Bs to initiate investigations, and evidence at
trial did not support the State's concern that alternative means of
obtaining Schedule B information—such as a subpoena or audit letter—
are ineffcient and ineffective compared to up-front collection. In real-
ity, California's interest is less in investigating fraud and more in ease
of administration. But “the prime objective of the First Amendment
is not effciency.” McCullen v. Coakley, 573 U. S. 464, 495. Mere ad-
ministrative convenience does not remotely “refect the seriousness of
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598 AMERICANS
FOR PROSPERITY FOUNDATION v. BONTA
Syllabus
the actual burden” that the demand for Schedule Bs imposes on donors'
associati
on rights. Reed, 561 U. S., at 196 (internal quotation marks
omitted). Pp. 611–615.
(2) In the First Amendment context, the Court has recognized a
“type of facial challenge, whereby a law may be invalidated as overbroad
if a substantial number of its applications are unconstitutional, judged
in relation to the statute's plainly legitimate sweep.” United States
v. Stevens, 559 U. S. 460, 473 (internal quotation marks omitted). The
Attorney General's disclosure requirement is plainly overbroad under
that standard. The regulation lacks any tailoring to the State's investi-
gative goals, and the State's interest in administrative convenience is
weak. As a result, every demand that might deter association “creates
an unnecessary risk of chilling ” in violation of the First Amendment.
Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 968.
It does not make a difference in these cases if there is no disclosure to
the public, see Shelton, 364 U. S., at 486, if some donors do not mind
having their identities revealed, or if the relevant donor information is
already disclosed to the IRS as a condition of federal tax-exempt status.
California's disclosure requirement imposes a widespread burden on do-
nors' associational rights, and this burden cannot be justifed on the
ground that the regime is narrowly tailored to investigating charitable
wrongdoing, or that the State's interest in administrative convenience
is suffciently important. Pp. 615–619.
Roberts, C. J., delivered the opinion of the Court, except as to Part II–
B–1. Kavanaugh and Barrett, JJ., joined that opinion in full, Alito
and Gorsuch, JJ., joined except as to Part II–B–1, and Thomas, J., joined
except as to Parts II–B–1 and III–B. Thomas, J., fled an opinion concur-
ring in part and concurring in the judgment, post, p. 619. Alito, J., fled
an opinion concurring in part and concurring in the judgment, in which
Gorsuch, J., joined, post, p. 622. Sotomayor, J., fled a dissenting opin-
ion, in which Breyer and Kagan, JJ., joined, post, p. 623.
Derek L. Shaffer argued the cause for petitioners in both
cases. With him on the briefs for petitioner in No. 19–251
were William A. Burck, John F. Bash, Jonathan G. Cooper,
and Kathleen M. Sullivan. Kristen K. Waggoner, John J.
Bursch, David A. Cortman, Rory T. Gray, Christopher
P. Schandevel, and Louis H. Castoria fled briefs for peti-
tioner in No. 19–255.
Acting Solicitor General Prelogar argued the cause for
the United States as amicus curiae urging vacatur in both
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as: 594 U. S. 595 (2021)
599
Counsel
cases. With her on the brief were Deputy Assistant Attor-
ney
General Harrington, Frederick Liu, Sopan Joshi, Mi-
chael S. Raab, and Daniel Winik.
Aimee A. Feinberg, Deputy Solicitor General of California,
argued the cause for respondent in both cases. With her on
the brief were Matthew Rodriguez, Acting Attorney General
of California, Michael J. Mongan, Solicitor General, Tamar
Pach te r, Seni or Assist ant Attor ney Genera l, Jose A.
Zelidon-Zepeda, Deputy Attorney General, and Kimberly M.
Castle, Associate Deputy Solicitor General.†
†Briefs of amici curiae urging reversal in both cases were fled for the
State of Arizona et al. by Mark Brnovich, Attorney General of Arizona,
Drew C. Ensign, Deputy Solicitor General, Joseph A. Kanefeld, and Brunn
W. Roysden III, Solicitor General, and by the Attorneys General for their
respective States as follows: Steve Marshall of Alabama, Treg R. Taylor
of Alaska, Leslie Rutledge of Arkansas, Ashley Moody of Florida, Christo-
pher M. Carr of Georgia, Lawrence G. Wasden of Idaho, Theodore E. Rok-
ita of Indiana, Derek Schmidt of Kansas, Daniel Cameron of Kentucky,
Jeff Landry of Louisiana, Lynn Fitch of Mississippi, Eric S. Schmitt of
Missouri, Austin Knudsen of Montana, Douglas J. Peterson of Nebraska,
Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Jason Ravnsb-
org of South Dakota, Herbert H. Slatery III of Tennessee, Ken Paxton of
Texas, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia; for
the American Center for Law and Justice by Jay Alan Sekulow, Stuart J.
Roth, Jordan Sekulow, Colby M. May, and Laura B. Hernandez; for the
American Civil Liberties Union, Inc., et al. by Brian M. Hauss, Jennesa
Calvo-Friedman, Ben Wizner, David D. Cole, Sherrilyn A. Ifll, Janai S.
Nelson, Samuel Spital, Mahogane D. Reed, and Alex Abdo; for the Ameri-
can Legislative Exchange Council by Lee E. Goodman, Bruce L. McDon-
ald, Andrew G. Woodson, and Jonathon P. Hauenschild; for the Becket
Fund for Religious Liberty by Eric S. Baxter, Adèle A. Keim, and Wil-
liam J. Haun; for the Buckeye Institute et al. by Jay R. Carson and Rob-
ert Alt; for the Center for Equal Opportunity by Thomas G. Hungar,
Douglas R. Cox, and Jason J. Mendro; for the Chamber of Commerce of
the United States of America et al. by Caleb P. Burns and Stephen J.
Obermeier; for the China Aid Association by Andrew C. Nichols and Sean
P. Gates; for Citizen Power Initiatives for China by Kelly J. Shackel ford,
Jeffrey C. Mateer, Hiram S. Sasser III, and Jordan E. Pratt; for Citizens
United et al. by Jeremiah L. Morgan, William J. Olson, Robert J. Olson,
and Michael Boos; for the Electronic Frontier Foundation et al. by Brian
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600 AMERICANS
FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t, except as to Part II–B–1.
To solicit contributions in California, charitable organiza-
tions must disclose to the state Attorney General's Offce the
T. Burgess; for the Free Speech Coalition et al. by William J. Olson, Jere-
miah L. Morgan, Robert J. Olson, David A. Warrington, Gary G. Kreep,
and Steven C. Bailey; for the Goldwater Institute et al. by Timothy Sande-
fur; for the Hispanic Leadership Fund et al. by Jeffrey M. Harris and
William S. Consovoy; for the Independent Women's Law Center by Kas-
din M. Mitchell; for the Institute for Free Speech by Lisa S. Blatt, Amy
Mason Saharia, Katherine Moran Meeks, Alan Gura, and Owen Yeates;
for the Institute for Justice by Paul M. Sherman; for the National Associ-
ation of Manufacturers et al. by Sean Marotta, Benjamin A. Field, and
Lawrence S. Ebner; for the National Taxpayers Union Foundation et al.
by Barnaby W. Zall and Joseph D. Henchman; for the New Civil Liberties
Alliance by Aditya Dynar and Margaret A. Little; for the Nonproft Alli-
ance Foundation et al. by Karen Donnelly and Errol Copilevitz; for the
Pacifc Legal Foundation et al. by Jeremy Talcott, James M. Manley,
Kimberly S. Hermann, and Anthony T. Caso; for the Philanthropy Round-
table by Alexander L. Reid; for the Proposition 8 Legal Defense Fund by
Andrew P. Pugno; for the Thomas More Society by Thomas Brejcha; and
for Sen. Mitch McConnell by Donald F. McGahn II and Robert Luther III.
Briefs of amici curiae urging reversal in No. 19–251 were fled for the
Council on American-Islamic Relations by Lena F. Masri and Justin Sa-
dowsky; and for the Freedom Foundation by James G. Abernathy and
Timothy R. Snowball.
Briefs of amici curiae urging affrmance in both cases were fled for the
State of New York et al. by Letitia James, Attorney General of New York,
Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor
General, and Matthew W. Grieco, Assistant Solicitor General, and by the
Attorneys General for their respective jurisdictions as follows: Phil
Weiser of Colorado, William Tong of Connecticut, Karl A. Racine of the
District of Columbia, Clare E. Connors of Hawaii, Kwame Raoul of Illi-
nois, Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey
of Massachusetts, Dana Nessel of Michigan, Aaron Ford of Nevada,
Gurbir S. Grewal of New Jersey, Hector Balderas of New Mexico, Ellen
F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha
of Rhode Island, and Mark R. Herring of Virginia; for the California Asso-
ciation of Nonprofts by Anna-Rose Mathieson; for the Campaign Legal
Center et al. by Paul M. Smith, Tara Malloy, Megan P. McAllen, Stuart
C. McPhail, and Adam J. Rappaport; for CharityWatch by Kathleen
R. Hartnett and Adam S. Gershenson; for Legal Historians by Darin

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as: 594 U. S. 595 (2021)
601
Opinion of the Court
identities of their major donors. The State contends that
hav
ing this information on hand makes it easier to police
misconduct by charities. We must decide whether Califor-
nia's disclosure requirement violates the First Amendment
right to free association.
I
The California Attorney General's Offce is responsible for
statewide law enforcement, including the supervision and
regulation of charitable fundraising. Under state law, the
Attorney General is authorized to “establish and maintain a
register” of charitable organizations and to obtain “whatever
information, copies of instruments, reports, and records are
needed for the establishment and maintenance of the regis-
ter.” Cal. Govt. Code Ann. § 12584 (West 2018). In order
to operate and raise funds in California, charities generally
must register with the Attorney General and renew their
Sands and David Freeman Engstrom; for the National Council of Non-
profts by Tim Delaney and Tiffany Gourley Carter; for Public Citizen
et al. by Scott L. Nelson and Allison M. Zieve; and for Scholars of the
Law of Non-Proft Organizations by Bradley S. Phillips.
Briefs of amici curiae were fled in both cases by the Association of
National Advertisers et al. by James C. Martin; for the Cato Institute
et al. by Ilya Shapiro, Cristen Wohlgemuth, David C. McDonald, Manuel
S. Klausner, Joseph G. S. Greenlee, Theodore H. Frank, Anna St. John,
D. Gill Sperlein, and Darpana Sheth; for Concerned Women for America
et al. by Frederick W. Claybrook, Jr., Steven W. Fitschen, James A. Da-
vids, and David A. Bruce; for the Floyd Abrams Institute for Freedom of
Expression at Yale Law School by Floyd Abrams; for the James Madison
Center for Free Speech by James Bopp, Jr., and Richard E. Coleson; for
Judicial Watch, Inc., et al. by Robert D. Popper and T. Russell Nobile; for
the Legacy Foundation by Jason Torchinsky; for the Liberty Justice Cen-
ter by Daniel R. Suhr, Jeffrey M. Schwab, and Brian K. Kelsey; for Pro-
tect the 1st et al. by Gene C. Schaerr, Erik S. Jaffe, Hannah C. Smith,
and Kathryn E. Tarbert; for the Public Interest Legal Foundation et al.
by J. Christian Adams, Kaylan Phillips, and Eric E. Doster; for Randy
Elf by Mr. El f, pro se; and for Congressman John Sarbanes et al. by Seth
P. Waxman, Catherine M. A. Carroll, Fred Wertheimer, and Donald J.
Simon.
Daniel P. Chiplock fled a brief in No. 19–251 for U. S. Senators as
amici curiae.

602 AMERICANS
FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
registrations annually. §§ 12585(a), 12586(a). Over 100,000
char
ities are currently registered in the State, and roughly
60,000 renew their registrations each year.
California law empowers the Attorney General to make
rules and regulations regarding the registration and renewal
process. §§ 12585(b), 12586(b). Pursuant to this regulatory
authority, the Attorney General requires charities renewing
their registrations to fle copies of their Internal Revenue
Service Form 990, along with any attachments and sched-
ules. See Cal. Code Regs., tit. 11, § 301 (2020). Form 990
contains information regarding tax-exempt organizations'
mission, leadership, and fnances. Schedule B to Form
990—the document that gives rise to the present dispute—
requires organizations to disclose the names and addresses
of donors who have contributed more than $5,000 in a partic-
ular tax year (or, in some cases, who have given more than
2 percent of an organization's total contributions). See 26
CFR §§ 1.6033–2(a)(2)(ii)(f ), (iii) (2020).
The petitioners are tax-exempt charities that solicit contri-
butions in California and are subject to the Attorney Gener-
al's registration and renewal requirements. Americans for
Prosperity Foundation is a public charity that is “devoted
to education and training about the principles of a free and
open society, including free markets, civil liberties, immigra-
ti on refor m, and constituti ona lly limited gover nment. ”
Brief for Petitioner Foundation 10. Thomas More Law Cen-
ter is a public interest law frm whose “mission is to pro-
tect religious freedom, free speech, family values, and the
sanctity of human life.” Brief for Petitioner Law Center 4.
Since 2001, each petitioner has renewed its registration and
has fled a copy of its Form 990 with the Attorney General,
as required by Cal. Code Regs., tit. 11, § 301. Out of concern
for their donors' anonymity, however, the petitioners have
declined to fle their Schedule Bs (or have fled only redacted
versions) with the State.
For many years, the petitioners' reluctance to turn over
donor information presented no problem because the Attor-
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as: 594 U. S. 595 (2021)
603
Opinion of the Court
ney General was not particularly zealous about collecting
Schedu
le Bs. That changed in 2010, when the California De-
partment of Justice “ramped up its efforts to enforce chari-
ties' Schedule B obligations, sending thousands of defciency
letters to charities that had not complied with the Schedule
B requirement.” Americans for Prosperity Foundation v.
Becerra, 903 F. 3d 1000, 1006 (CA9 2018). The Law Center
and the Foundation received defciency letters in 2012 and
2013, respectively. When they continued to resist disclosing
their contributors' identities, the Attorney General threat-
ened to suspend their registrations and fne their directors
and offcers.
The petitioners each responded by fling suit in the Central
District of California. In their complaints, they alleged that
the Attorney General had violated their First Amendment
rights and the rights of their donors. The petitioners al-
leged that disclosure of their Schedule Bs would make their
donors less likely to contribute and would subject them to
the risk of reprisals. Both organizations challenged the dis-
closure requirement on its face and as applied to them.
In each case, the District Court granted preliminary
injunctive relief prohibiting the Attorney General from col-
lecting their Schedule B information. Americans for Pros-
perity Foundation v. Harris, 2015 WL 769778 (CD Cal.,
Feb. 23, 2015); App. to Pet. for Cert. in No. 19–255, pp. 90a–
96a. The Ninth Circuit vacated and remanded. Americans
for Prosperity Foundation v. Harris, 809 F. 3d 536 (2015)
(per curiam). The court held that it was bound by Circuit
precedent to reject the petitioners' facial challenge. Id., at
538 (citing Center for Competitive Politics v. Harris, 784
F. 3d 1307, 1317 (2015)). And reviewing the petitioners' as-
applied claims under an “exacting scrutiny” standard, the
panel narrowed the injunction, allowing the Attorney Gen-
eral to collect the petitioners' Schedule Bs so long as he did
not publicly disclose them. 809 F. 3d, at 538, 543.
On remand, the District Court held bench trials in both
cases, after which it entered judgment for the petitioners
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604 AMERICANS
FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
and per manently en joi ned the Attor ney Genera l from
col
lecting their Schedule Bs. Americans for Prosperity
Foundation v. Harris, 182 F. Supp. 3d 1049 (CD Cal. 2016);
Thomas More Law Center v. Harris, 2016 WL 6781090 (CD
Cal., Nov. 16, 2016). Applying exacting scrutiny, the Dis-
trict Court held that disclosure of Schedule Bs was not
narrowly tailored to the State's interest in investigating
charitable misconduct. The court credited testimony from
California offcials that Schedule Bs were rarely used to
audit or investigate charities. And it found that even where
Schedule B information was used, that information could be
obtained from other sources.
The court also determined that the disclosure regime bur-
dened the associational rights of donors. In both cases, the
court found that the petitioners had suffered from threats
and harassment in the past, and that donors were likely to
face similar retaliation in the future if their affliations be-
came publicly known. For example, the CEO of the Foun-
dation testifed that a technology contractor working at
the Foundation's headquarters had posted online that he was
“inside the belly of the beast” and “could easily walk into
[the CEO's] offce and slit his throat.” 182 F. Supp. 3d,
at 1056. And the Law Center introduced evidence that it
had received “threats, harassing calls, intimidating and ob-
scene emails, and even pornographic letters.” 2016 WL
6781090, *4.
The District Court also found that California was unable
to ensure the confdentiality of donors' information. During
the course of litigation, the Foundation identifed nearly
2,000 confdential Schedule Bs that had been inadvertently
posted to the Attorney General's website, including dozens
that were found the day before trial. One of the Founda-
tion's expert witnesses also discovered that he was able to
access hundreds of thousands of confdential documents on
the website simply by changing a digit in the URL. The
court found after trial that “the amount of careless mistakes
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605
Opinion of the Court
made by the Attorney General's Registry is shocking.” 182
F
. Supp. 3d, at 1057. And although California subsequently
codifed a policy prohibiting disclosure, Cal. Code Regs.,
tit. 11, § 310(b)—an effort the District Court described as
“commendable”—the court determined that “[d]onors and
potential donors would be reasonably justifed in a fear of
disclosure given such a context” of past breaches. 2016 WL
6781090, *5.
The Ninth Circuit again vacated the District Court's
injunctions, and this time reversed the judgments and re-
manded for entry of judgment in favor of the Attorney Gen-
eral. 903 F. 3d 1000. The court held that the District
Court had erred by imposing a narrow tailoring requirement.
Id., at 1008–1009. And it reasoned that the disclosure
regime satisfed exacting scrutiny because the up-front col-
lection of charities' Schedule Bs promoted investigative eff-
ciency and effectiveness. Id., at 1009–1012. The panel also
found that the disclosure of Schedule Bs would not meaning-
fully burden donors' associational rights, in part because the
Attorney General had taken remedial security measures to
fx the confdentiality breaches identifed at trial. Id., at
1013–1019.
The Ninth Circuit denied rehearing en banc. Americans
for Prosperity Foundation v. Becerra, 919 F. 3d 1177 (2019).
Judge Ikuta dissented, joined by four other judges. In her
view, the panel had impermissibly overridden the District
Court's factual fndings and evaluated the disclosure require-
ment under too lenient a degree of scrutiny. Id., at 1184–
1187.
We granted certiorari. 592 U. S. ––– (2021).
II
A
The First Amendment proh ibits gover nment from
“abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the
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606 AMERICANS
FOR PROSPERITY FOUNDATION v. BONTA
Opinion of the Court
Government for a redress of grievances.” This Court has
“
long understood as implicit in the right to engage in activi-
ties protected by the First Amendment a corresponding
right to associate with others.” Roberts v. United States
Jaycees, 468 U. S. 609, 622 (1984). Protected association
furthers “a wide variety of political, social, economic, educa-
tional, religious, and cultural ends,” and “is especially impor-
tant in preserving political and cultural diversity and in
shielding dissident expression from suppression by the
majority.” Ibid. Government infringement of this free-
dom “can take a number of forms.” Ibid. We have held,
for example, that the freedom of association may be violated
where a group is required to take in members it does not
want, see id., at 623, where individuals are punished for their
political affliation, see Elrod v. Burns, 427 U. S. 347, 355
(1976) (plurality opinion), or where members of an organiza-
tion are denied benefts based on the organization's message,
see Healy v. James, 408 U. S. 169, 181–182 (1972).
We have also noted that “[i]t is hardly a novel perception
that compelled disclosure of affliation with groups engaged
in advocacy may constitute as effective a restraint on free-
dom of association as [other] forms of governmental action.”
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462
(1958). NAACP v. Alabama involved this chilling effect in
its starkest form. The NAACP opened an Alabama offce
that supported racial integration in higher education and
public transportation. Id., at 452. In response, NAACP
members were threatened with economic reprisals and
violence. Id., at 462. As part of an effort to oust the orga-
nization from the State, the Alabama Attorney General
sought the group's membership lists. Id., at 452–453. We
held that the First Amendment prohibited such compelled
disclosure. Id., at 466. We explained that “ [e]ffective
advocacy of both public and private points of view, particu-
larly controversial ones, is undeniably enhanced by group
association,” id., at 460, and we noted “the vital relationship
between freedom to associate and privacy in one's associa-
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tions,” id., at 462. Because NAACP members faced a risk
of
reprisals if their affliation with the organization became
known—and because Alabama had demonstrated no offsett-
ing interest “suffcient to justify the deterrent effect” of dis-
closure, id., at 463—we concluded that the State's demand
violated the First Amendment.
B
1
NAACP v. Alabama did not phrase in precise terms the
standard of review that applies to First Amendment chal-
lenges to compelled disclosure. We have since settled on a
standard referred to as “exacting scrutiny.” Buckley v.
Valeo, 424 U. S. 1, 64 (1976) (per curiam). Under that
standard, there must be “a substantial relation between the
disclosure requirement and a suffciently important govern-
mental interest.” Doe v. Reed, 561 U. S. 186, 196 (2010) (in-
ternal quotation marks omitted). “To withstand this scru-
tiny, the strength of the governmental interest must refect
the seriousness of the actual burden on First Amendment
rights.” Ibid. (internal quotation marks omitted). Such
scrutiny, we have held, is appropriate given the “deterrent
effect on the exercise of First Amendment rights” that arises
as an “inevitable result of the government's conduct in re-
quiring disclosure.” Buckley, 424 U. S., at 65.
The Law Center (but not the Foundation) argues that we
should apply strict scrutiny, not exacting scrutiny. Under
strict scrutiny, the government must adopt “the least re-
strictive means of achieving a compelling state interest,”
McCullen v. Coakley, 573 U. S. 464, 478 (2014), rather than a
means substantially related to a suffciently important inter-
est. The Law Center contends that only strict scrutiny ade-
quately protects the associational rights of charities. And
although the Law Center acknowledges that we have applied
exacting scrutiny in prior disclosure cases, it argues that
those cases arose in the electoral context, where the govern-
ment's important interests justify less searching review.
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It is true that we frst enunciated the exacting scrutiny
st
andard in a campaign fnance case. See Buckley, 424 U. S.,
at 64–68. And we have since invoked it in other election-
related settings. See, e.g., Citizens United v. Federal Elec-
tion Comm'n, 558 U. S. 310, 366–367 (2010); Davis v. Federal
Election Comm'n, 554 U. S. 724, 744 (2008). But exacting
scrutiny is not unique to electoral disclosure regimes. To
the contrary, Buckley derived the test from NAACP v. Ala-
bama itself, as well as other nonelection cases. See 424
U. S., at 64 (citing Gibson v. Florida Legislative Investiga-
tion Comm., 372 U. S. 539 (1963); NAACP v. Button, 371
U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960); Bates
v. Little Rock, 361 U. S. 516 (1960)). As we explained in
NAACP v. Alabama, “it is immaterial” to the level of
scrutiny “whether the beliefs sought to be advanced by asso-
ciation pertain to political, economic, religious or cultural
matters.” 357 U. S., at 460–461. Regardless of the type of
association, compelled disclosure requirements are reviewed
under exacting scrutiny.
2
The Law Center (now joined by the Foundation) argues in
the alternative that even if exacting scrutiny applies, such
review incorporates a least restrictive means test similar to
the one imposed by strict scrutiny. The United States and
the Attorney General respond that exacting scrutiny de-
mands no additional tailoring beyond the “substantial rela-
tion” requirement noted above. We think that the answer
lies between those two positions. While exacting scrutiny
does not require that disclosure regimes be the least restric-
tive means of achieving their ends, it does require that they
be narrowly tailored to the government's asserted interest.
The need for narrow tailoring was set forth early in our
compelled disclosure cases. In Shelton v. Tucker, we con-
sidered an Arkansas statute that required teachers to dis-
close every organization to which they belonged or contrib-
uted. 364 U. S., at 480. We acknowledged the importance
of “the right of a State to investigate the competence and
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ftness of those whom it hires to teach in its schools.” Id.,
at
485. On that basis, we distinguished prior decisions in
which we had found “no substantially relevant correlation
between the governmental interest asserted and the State's
effort to compel disclosure.” Ibid. But we nevertheless
held that the Arkansas statute was invalid because even
a “legitimate and substantial” governmental interest “can-
not be pursued by means that broadly stife fundamental
personal liberties when the end can be more narrowly
achieved.” Id., at 488; see also Louisiana ex rel. Gremil-
lion v. NAACP, 366 U. S. 293, 296 (1961) (quoting same).
Shelton stands for the proposition that a substantial rela-
tion to an important interest is not enough to save a disclo-
sure regime that is insuffciently tailored. This requirement
makes sense. Narrow tailoring is crucial where First
Amendment activity is chilled—even if indirectly—“[b]e-
cause First Amendment freedoms need breathing space to
survive.” Button, 371 U. S., at 433.
Our more recent decisions confrm the need for tailoring.
In McCutcheon v. Federal Election Commission, 572 U. S.
185 (2014), for example, a plurality of the Court explained:
“In the First Amendment context, ft matters. Even
when the Court is not applying strict scrutiny, we still
require a ft that is not necessarily perfect, but reason-
able; that represents not necessarily the single best
disposition but one whose scope is in proportion to the
interest served, that employs not necessarily the least
restrictive means but a means narrowly tailored to
achieve the desired objective.” Id., at 218 (internal
quotation marks and alterations omitted).
McCutcheon is instructive here. A substantial relation is
necessary but not suffcient to ensure that the government
adequately considers the potential for First Amend-
ment harms before requiring that organizations reveal sensi-
tive information about their members and supporters.
Where exacting scrutiny applies, the challenged requirement
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must be narrowly tailored to the interest it promotes, even
i
f it is not the least restrictive means of achieving that
end.
The dissent reads our cases differently. It focuses on the
words “broadly stife” in the quotation from Shelton above,
and it interprets those words to mean that narrow tailoring
is required only for disclosure regimes that “impose a severe
burden on associational rights.” Post, at 634 (opinion of
Sotomayor, J.). Because, in the dissent's view, the petition-
ers have not shown such a burden here, narrow tailoring is
not required.
We respectfully disagree. The “government may regu-
late in the [First Amendment] area only with narrow speci-
fcity,” Button, 371 U. S., at 433, and compelled disclosure
regimes are no exception. When it comes to “a person's be-
liefs or associations,” “[b]road and sweeping state inquiries
into these protected areas . . . discourage citizens from exer-
cising rights protected by the Constitution.” Baird v. State
Bar of Ariz., 401 U. S. 1, 6 (1971) (plurality opinion). Con-
trary to the dissent, we understand this Court's discussion of
rules that are “broad” and “broadly stife” First Amendment
freedoms to refer to the scope of challenged restrictions—
their breadth—rather than the severity of any demonstrated
burden. That much seems clear to us from Shelton's state-
ment (in the sentence following the one quoted by the dis-
sent) that “[t]he breadth of legislative abridgment must be
viewed in the light of less drastic means for achieving the
same basic purpose.” 364 U. S., at 488; see id., at 488, n. 9
(citing sources that support this reading). It also seems
clear from the immediately preceding paragraph, which
stressed that “[t]he scope of the inquiry required by [the law]
is completely unlimited. . . . It requires [the teacher] to
list, without number, every conceivable kind of associational
tie—social, professional, political, avocational, or religious.
Many such relationships could have no possible bearing upon
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the teacher's occupational competence or ftness.” Id., at
488.
In other words, the law was not narrowly tailored to
the State's objective.
Nor does our decision in Reed suggest that narrow tailor-
ing is required only for laws that impose severe burdens.
The dissent casts Reed as a case involving only “ `modest
burdens,' ” and therefore “a correspondingly modest level of
tailoring.” Post, at 634 (quoting 561 U. S., at 201). But it
was only after we concluded that various narrower alterna-
tives proposed by the plaintiffs were inadequate, see 561
U. S., at 198–199, that we held that the strength of the
government's interest in disclosure refected the burden
imposed, see id., at 201. The point is that a reasonable as-
sessment of the burdens imposed by disclosure should begin
with an understanding of the extent to which the burdens
are unnecessary, and that requires narrow tailoring.
III
The Foundation and the Law Center both argued below
that the obligation to disclose Schedule Bs to the Attorney
General was unconstitutional on its face and as applied to
them. See 903 F. 3d, at 1007. The petitioners renew their
facial challenge in this Court, and they argue in the alterna-
tive that they are entitled to as-applied relief. For the rea-
sons below, we conclude that California's blanket demand for
Schedule Bs is facially unconstitutional.
A
As explained, exacting scrutiny requires that there be “a
substantial relation between the disclosure requirement and
a suffciently important governmental interest,” Reed, 561
U. S., at 196 (internal quotation marks omitted), and that the
disclosure requirement be narrowly tailored to the interest
it promotes, see Shelton, 364 U. S., at 488. The Ninth Cir-
cuit found that there was a substantial relation between the
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Attorney General's demand for Schedule Bs and a suffciently
strong
governmental interest. 903 F. 3d, at 1008–1020. Of
particular relevance, the court found that California had such
an interest in preventing charitable fraud and self-dealing,
and that “the up-front collection of Schedule B information
improves the effciency and effcacy of the Attorney General's
important regulatory efforts. ” Id., at 1011–1012. The
court did not apply a narrow tailoring requirement, however,
because it did not read our cases to mandate any such
inquiry. Id., at 1008–1009. That was error. And properly
applied, the narrow tailoring requirement is not satisfed by
the disclosure regime.
We do not doubt that California has an important interest
in preventing wrongdoing by charitable organizations. It
goes without saying that there is a “substantial governmen-
tal interest[ ] in protecting the public from fraud.” Schaum-
burg v. Citizens for Better Environment, 444 U. S. 620, 636
(1980) (internal quotation marks omitted). The Attorney
General receives complaints each month that identify a range
of misconduct, from “misuse, misappropriation, and diversion
of charitable assets,” to “false and misleading charitable so-
licitations,” to other “improper activities by charities solicit-
ing charitable donations.” App. in No. 19–255, p. 270 (alter-
ation omitted). Such offenses cause serious social harms.
And the Attorney General is the primary law enforcement
offcer charged with combating them under California law.
See Cal. Govt. Code Ann. § 12598.
There is a dramatic mismatch, however, between the inter-
est that the Attorney General seeks to promote and the dis-
closure regime that he has implemented in service of that
end. Recall that 60,000 charities renew their registrations
each year, and nearly all are required to fle a Schedule B.
Each Schedule B, in turn, contains information about a chari-
ty's top donors—a small handful of individuals in some cases,
but hundreds in others. See App. in No. 19–251, p. 319.
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This information includes donors' names and the total contri-
buti
ons they have made to the charity, as well as their
addresses.
Given the amount and sensitivity of this information har-
vested by the State, one would expect Schedule B collection
to form an integral part of California's fraud detection
efforts. It does not. To the contrary, the record amply
supports the District Court's fnding that there was not “a
single, concrete instance in which pre-investigation collection
of a Schedule B did anything to advance the Attorney Gener-
al's investigative, regulatory or enforcement efforts.” 182
F. Supp. 3d, at 1055.
The dissent devotes much of its analysis to relitigating fac-
tual disputes that the District Court resolved against the
Attorney General, see post, at 637–642, notwithstanding the
applicable clear error standard of review, see Fed. Rule Civ.
Proc. 52(a). For example, the dissent echoes the State's ar-
gument that, in some cases, it relies on up-front Schedule B
collection to prevent and police fraud. See post, at 639–640.
But the record before the District Court tells a different story.
See, e.g., App. in No. 19–251, at 397, 403, 417. And even if
the State relied on up-front collection in some cases, its
showing falls far short of satisfying the means-end ft that
exacting scrutiny requires. California is not free to enforce
any disclosure regime that furthers its interests. It must
instead demonstrate its need for universal production in
light of any less intrusive alternatives. Cf. Shelton, 364
U. S., at 488.
The Attorney General and the dissent contend that alter-
native means of obtaining Schedule B information—such as
a subpoena or audit letter—are ineffcient and ineffective com-
pared to up-front collection. See post, at 640–641. It be-
came clear at trial, however, that the Offce had not even con-
sidered alternatives to the current disclosure requirement.
See App. in No. 19–251, at 421 (“I see no reason to change
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what we've been doing.”). The Attorney General and the
dissent
also argue that a targeted request for Schedule B
information could tip a charity off, causing it to “hide or tam-
per with evidence.” Brief for Respondent 43; see post, at
641–642. But again, the States' witnesses failed to substan-
tiate that concern. See, e.g., App. in No. 19–251, at 405–406;
see also Board of Trustees of State Univ. of N. Y. v. Fox, 492
U. S. 469, 480 (1989) (“the State . . . must affrmatively estab-
lish the reasonable ft we require”). Nor do the actions of
investigators suggest a risk of tipping off charities under sus-
picion, as the standard practice is to send audit letters asking
for a wide range of information early in the investigative
process. See App. in No. 19–251, at 406, 411, 418. Further-
more, even if tipoff were a concern in some cases, the State's
indiscriminate collection of Schedule Bs in all cases would
not be justifed.
The upshot is that California casts a dragnet for sensitive
donor information from tens of thousands of charities each
year, even though that information will become relevant in
only a small number of cases involving fled complaints. See
id., at 307–308. California does not rely on Schedule Bs to
initiate investigations, and in all events, there are multiple
alternative mechanisms through which the Attorney General
can obtain Schedule B information after initiating an investi-
gation. The need for up-front collection is particularly dubi-
ous given that California—one of only three States to impose
such a requirement, see id., at 420—did not rigorously en-
force the disclosure obligation until 2010. Certainly, this is
not a regime “whose scope is in proportion to the interest
served.” McCutcheon, 572 U. S., at 218 (internal quotation
marks omitted).
In reality, then, California's interest is less in investigating
fraud and more in ease of administration. This interest,
however, cannot justify the disclosure requirement. The
Attorney General may well prefer to have every charity's
information close at hand, just in case. But “the prime
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objective of the First Amendment is not effciency.” Mc-
Cull
en, 573 U. S., at 495. Mere administrative convenience
does not remotely “refect the seriousness of the actual bur-
den” that the demand for Schedule Bs imposes on donors'
association rights. Reed, 561 U. S., at 196 (internal quota-
tion marks omitted).
B
The foregoing discussion also makes clear why a facial
challenge is appropriate in these cases. Normally, a plaintiff
bringing a facial challenge must “establish that no set of cir-
cumstances exists under which the [law] would be valid,”
United States v. Salerno, 481 U. S. 739, 745 (1987), or show
that the law lacks “a plainly legitimate sweep,” Washington
State Grange v. Washington State Republican Party, 552
U. S. 442, 449 (2008) (internal quotation marks omitted). In
the First Amendment context, however, we have recognized
“a second type of facial challenge, whereby a law may
be invalidated as overbroad if a substantial number of its
applications are unconstitutional, judged in relation to the
statute's plainly legitimate sweep.” United States v.
Stevens, 559 U. S. 460, 473 (2010) (internal quotation marks
omitted). We have no trouble concluding here that the
Attorney General's disclosure requirement is overbroad.
The lack of tailoring to the State's investigative goals is cate-
gorical—present in every case—as is the weakness of the
State's interest in administrative convenience. Every de-
mand that might chill association therefore fails exacting
scrutiny.
The Attorney General tries to downplay the burden on
donors, arguing that “there is no basis on which to conclude
that California's requirement results in any broad-based
chill.” Brief for Respondent 36. He emphasizes that “Cali-
fornia's Schedule B requirement is confdential,” and he
suggests that certain donors—like those who give to noncon-
troversial charities—are unlikely to be deterred from con-
tributing. Id., at 36–37. He also contends that disclosure
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to his offce imposes no added burdens on donors because
t
ax-exempt charities already provide their Schedule Bs to
the IRS. Id., at 37.
We are unpersuaded. Our cases have said that disclosure
requirements can chill association “[e]ven if there [is] no dis-
closure to the general public.” Shelton, 364 U. S., at 486.
In Shelton, for example, we noted the “constant and heavy”
pressure teachers would experience simply by disclosing
their associational ties to their schools. Ibid. Exacting
scrutiny is triggered by “state action which may have the
effect of curtailing the freedom to associate,” and by the
“possible deterrent effect” of disclosure. NAACP v. Ala-
bama, 357 U. S., at 460–461 (emphasis added); see Talley v.
California, 362 U. S. 60, 65 (1960) (“identifcation and fear of
reprisal might deter perfectly peaceful discussions of public
matters of importance” (emphasis added)). While assur-
ances of confdentiality may reduce the burden of disclosure
to the State, they do not eliminate it.*
It is irrelevant, moreover, that some donors might not
mind—or might even prefer—the disclosure of their identi-
ties to the State. The disclosure requirement “creates an
unnecessary risk of chilling ” in violation of the First Amend-
ment, Secretary of State of Md. v. Joseph H. Munson Co.,
467 U. S. 947, 968 (1984), indiscriminately sweeping up the
*Here the State's assurances of confdentiality are not worth much.
The dissent acknowledges that the Foundation and Law Center “have un-
questionably provided evidence that their donors face a reasonable proba-
bility of threats, harassment, and reprisals if their affliations are made
public,” but it concludes that the petitioners have no cause for concern
because the Attorney General “has implemented security measures to en-
sure that Schedule B information remains confdential.” Post, at 636–637
(opinion of Sotomayor, J.). The District Court—whose fndings, again,
we review only for clear error—disagreed. After two full bench trials,
the court found that the Attorney General's promise of confdentiality
“rings hollow,” and that “[d]onors and potential donors would be reason-
ably justifed in a fear of disclosure.” Thomas More Law Center v. Har-
ris, 2016 WL 6781090, *5 (CD Cal., Nov. 16, 2016).
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information of every major donor with reason to remain
anonymous.
The petitioners here, for example, introduced
evidence that they and their supporters have been subjected
to bomb threats, protests, stalking, and physical violence.
App. in No. 19–251, at 256, 291–292. Such risks are height-
ened in the 21st century and seem to grow with each passing
year, as “anyone with access to a computer [can] compile a
wealth of information about” anyone else, including such sen-
sitive details as a person's home address or the school at-
tended by his children. Reed, 561 U. S., at 208 (Alito, J.,
concurring).
The gravity of the privacy concerns in this context is fur-
ther underscored by the flings of hundreds of organizations
as amici curiae in support of the petitioners. Far from rep-
resenting uniquely sensitive causes, these organizations span
the ideological spectrum, and indeed the full range of human
endeavors: from the American Civil Liberties Union to the
Proposition 8 Legal Defense Fund; from the Council on
American-Islamic Relations to the Zionist Organization of
America; from Feeding America—Eastern Wisconsin to PBS
Reno. The deterrent effect feared by these organizations is
real and pervasive, even if their concerns are not shared by
every single charity operating or raising funds in California.
The dissent argues that—regardless of the defects in
California's disclosure regime—a facial challenge cannot
succeed unless a plaintiff shows that donors to a substantial
number of organizations will be subjected to harassment
and reprisals. See post, at 642, n. 11. As we have ex-
plained, plaintiffs may be required to bear this evidentiary
burden where the challenged regime is narrowly tailored to
an important government interest. See supra, at 610–611.
Such a demandi ng show i ng is not required, however,
where—as here—the disclosure law fails to satisfy these
criteria.
Finally, California's demand for Schedule Bs cannot be
saved by the fact that donor information is already disclosed
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to the IRS as a condition of federal tax-exempt status. For
one
thing, each governmental demand for disclosure brings
with it an additional risk of chill. For another, revenue col-
lection efforts and conferral of tax-exempt status may raise
issues not presented by California's disclosure requirement,
which can prevent charities from operating in the State alto-
gether. See Regan v. Taxation With Representation of
Wash., 461 U. S. 540, 545 (1983); see also Schaumburg, 444
U. S., at 633 (First Amendment protects right to solicit chari-
table contributions).
We are left to conclude that the Attorney General's disclo-
sure requirement imposes a widespread burden on donors'
associational rights. And this burden cannot be justifed on
the ground that the regime is narrowly tailored to investi-
gating charitable wrongdoing, or that the State's interest in
administrative convenience is suffciently important. We
therefore hold that the up-front collection of Schedule Bs is
facially unconstitutional, because it fails exacting scrutiny in
“a substantial number of its applications . . . judged in rela-
tion to [its] plainly legitimate sweep.” Stevens, 559 U. S., at
473 (internal quotation marks omitted).
The dissent concludes by saying that it would be “sympa-
thetic” if we “had simply granted as-applied relief to peti-
tioners based on [our] reading of the facts.” Post, at 646.
But the pertinent facts in these cases are the same across
the board: Schedule Bs are not used to initiate investigations.
That is true in every case. California has not considered
alternatives to indiscriminate up-front disclosure. That is
true in every case. And the State's interest in amassing
sensitive information for its own convenience is weak. That
is true in every case. When it comes to the freedom of asso-
ciation, the protections of the First Amendment are trig-
gered not only by actual restrictions on an individual's ability
to join with others to further shared goals. The risk of a
chilling effect on association is enough, “[b]ecause First
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Amendment freedoms need breathing space to survive.”
Bu
tton, 371 U. S., at 433.
***
The District Court correctly entered judgment in favor
of the petitioners and permanently enjoined the Attorney
General from collecting their Schedule Bs. The Ninth
Circuit erred by vacating those injunctions and directing
entry of judgment for the Attorney General. The judgment
of the Ninth Circuit is reversed, and the cases are remanded
for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, concurring in Parts I, II–A, II–B–2, and
III–A, and concurring in the judgment.
The Court correctly holds that California's disclosure
requirement violates the First Amendment. It also cor-
rectly concludes that the District Court properly enjoined
California's attorney general from collecting the forms at
issue, which contain sensitive donor information. But, while
I agree with much of the Court's opinion, I would approach
three issues differently.
First, the bulk of “our precedents . . . require application
of strict scrutiny to laws that compel disclosure of protected
First Amendment association.” Doe v. Reed, 561 U. S. 186,
232 (2010) (Thomas, J., dissenting). California's law fts that
description. Although the Court rightly holds that even the
less demanding “exacting scrutiny” standard requires nar-
row tailoring for laws that compel disclosure, ante, at 608–
611, invoking exacting scrutiny is at odds with our repeated
recognition “that privacy of association is protected under
the First Amendment.” 561 U. S., at 240 (Thomas, J., dis-
senting). The text and history of the Assembly Clause sug-
gest that the right to assemble includes the right to associate
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anonymously. See 4 Annals of Cong. 900–902, 941–942 (1795)
(
defending the Democratic-Republican societies, many of
which met in secret, as exercising individuals' “leave to assem-
ble”); see also Brief for Becket Fund for Religious Liberty as
Amicus Curiae 13–20; Reply Brief in No. 19–251, pp. 3–5;
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958)
(discussing the history of anonymous publications). And the
right to associate anonymously often operates as a vehicle to
protect other First Amendment rights, such as the freedom of
the press. McIntyre v. Ohio Elections Comm'n, 514 U. S.
334, 361–367 (1995) (Thomas, J., concurring in judgment)
(“Founding-era Americans” understood the freedom of the
press to include the right of printers and publishers not to be
compelled to disclose the authors of anonymous works). Laws
directly burdening the right to associate anonymously, includ-
ing compelled disclosure laws, should be subject to the same
scrutiny as laws directly burdening other First Amendment
rights. Doe, 561 U. S., at 232, 240 (Thomas, J., dissenting).
Second, the Court holds the law “overbroad” and, thus, in-
valid in all circumstances. Ante, at 615. But I continue to
have “doubts about [the] origins and application” of our “over-
breadth doctrine.” United States v. Sineneng-Smith, 590
U. S. 371, 383 (2020) (Thomas, J., concurring). That doctrine
purports to grant federal courts the power to invalidate a law
“if a substantial number of its applications are unconstitu-
tional, judged in relation to the statute's plainly legitimate
sweep.” Id., at 382 (internal quotation marks omitted).
However, the Court has no power to enjoin the lawful applica-
tion of a statute just because that statute might be unlawful as-
applied in other circumstances. Id., at 390; Borden v. United
States, 593 U. S. 420, 448 (2021) (Thomas, J., concurring in
judgment) (“a court cannot, consistent with separation of
powers, enjoin enforcement of a statute where enforcement
would be lawful”). And the principle that application of a
law is always unlawful if “a substantial number of its appli-

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Opinion of Thomas, J.
cations are unconstitutional” “lacks any basis in the Con-
stituti
on's text” and “contravenes traditional standing prin-
ciples.” Sineneng-Smith, 590 U. S., at 382–383 (Thomas, J.,
concurring) (internal quotation marks omitted).
Third, and relatedly, this Court also lacks the power
“to `pronounce that the statute is unconstitutional in all ap-
plications,' ” even if the Court suspects that the law will
likely be unconstitutional in every future application as op-
posed to just a substantial number of its applications. Bor-
den, 593 U. S., at 447 (opinion of Thomas, J.) (quoting
Chicago v. Morales, 527 U. S 41, 77 (1999) (Scalia, J., dissent-
ing)). A declaration that the law is “facially” unconstitu-
tional “seems to me no more than an advisory opinion—
which a federal court should never issue at all.” 593 U. S.,
at 447 (opinion of Thomas, J.). Courts cannot “strike down
statutory text” or resolve the legal rights of litigants not
before them. Ibid. (brackets and internal quotation marks
omitted).
Despite the Court's use of the term “facially unconstitu-
tional,” I join Part III–A, which fnds that California's law
fails exacting scrutiny, because the Court does not say that
it is “provid[ing] relief beyond the parties to the case.”
Trump v. Hawaii, 585 U. S. 667, 717 (2018) (Thomas, J., con-
curring). The Court simply (and correctly) holds that the
District Court properly enjoined the law as applied to peti-
tioners. Ante, at 619. The Court's judgment is also not de-
pendent on its overbreadth determination. Ante, at 611–615.
One can understand the Court's reasoning as based on the fun-
damental legal problems with the law (that are obvious in light
of the facts of this suit) that will, in practice, prevent California
from lawfully applying the disclosure requirement against a
substantial number of entities, including petitioners.
With those points of difference clarifed, I join Parts I,
II–A, II–B–2, and III–A of the majority's opinion and concur
in the judgment.
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622 AMERICANS
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Opinion of Alito, J.
Justice Alito, with whom Justice Gorsuch joins, con-
curr
ing in Parts I, II–A, II–B–2, and III, and concurring in
the judgment.
I am pleased to join most of The Chief Justice's opinion.
In particular, I agree that the exacting scrutiny standard
drawn from our election-law jurisprudence has real teeth.
It requires both narrow tailoring and consideration of alter-
native means of obtaining the sought-after information.
See ante, at 608–611, 614–615 (opinion of the Court). For
the reasons The Chief Justice explains, California's blun-
derbuss approach to charitable disclosures fails exacting
scrutiny and is facially unconstitutional. See ante, at 611–
619 (opinion of the Court). The question is not even close.
And for the same reasons, California's approach necessarily
fails strict scrutiny.
The Chief Justice would hold that the particular exact-
ing scrutiny standard in our election-law jurisprudence ap-
plies categorically “to First Amendment challenges to com-
pelled disclosure.” Ante, at 607 (plurality opinion). Jus-
tice Thomas, by contrast, would hold that strict scrutiny
applies in all such cases. See ante, at 619–620 (concurring
in part and concurring in judgment). I am not prepared at
this time to hold that a single standard applies to all disclo-
sure requirements. And I do not read our cases to have
broadly resolved the question in favor of exacting scrutiny.
This Court decided its seminal compelled disclosure cases be-
fore it developed modern strict scrutiny doctrine. See Fal-
lon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1284 (2007)
(“Before 1960, what we would now call strict judicial scrutiny
. . . did not exist”); id., at 1282 (contending that modern strict
scrutiny's “frst unambiguous appearance” in a majority opin-
ion occurred in 1969). Accordingly, nothing in those cases can
be understood as rejecting strict scrutiny. If anything, their
language and reasoning—requiring a compelling interest and
a minimally intrusive means of advancing that interest—an-
ticipated and is fully in accord with contemporary strict
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623
Sotomayor, J., dissenting
scrutiny doctrine. See, e. g., Shelton v. Tucker, 364 U. S.
479,
488 (1960) (the government's purpose “cannot be pur-
sued by means that broadly stife fundamental personal liber-
ties when the end can be more narrowly achieved”); NAACP
v. Alabama ex rel. Patterson, 357 U. S. 449, 463 (1958) (re-
quiring a “compelling ” interest (internal quotation marks
omitted)). Similarly, Buckley v. Valeo, 424 U. S. 1 (1976)
(per curiam), and its progeny should not be read to have
broadly cabined our earlier decisions merely by relying on
them in one particular context.
Because the choice between exacting and strict scrutiny
has no effect on the decision in these cases, I see no need to
decide which standard should be applied here or whether the
same level of scrutiny should apply in all cases in which the
compelled disclosure of associations is challenged under the
First Amendment.
Justice Sotomayor, with whom Justice Breyer and
Justice Kagan join, dissenting.
Although this Court is protective of First Amendment
rights, it typically requires that plaintiffs demonstrate an ac-
tual First Amendment burden before demanding that a law
be narrowly tailored to the government's interests, never
mind striking the law down in its entirety. Not so today.
Today, the Court holds that reporting and disclosure require-
ments must be narrowly tailored even if a plaintiff demon-
strates no burden at all. The same scrutiny the Court ap-
plied when NAACP members in the Jim Crow South did not
want to disclose their membership for fear of reprisals and
violence now applies equally in the case of donors only too
happy to publicize their names across the websites and walls
of the organizations they support.
California oversees nearly a quarter of this Nation's chari-
table assets. As part of that oversight, it investigates and
prosecutes charitable fraud, relying in part on a registry
where it collects and keeps charitable organizations' tax
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624 AMERICANS
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Sotomayor, J., dissenting
forms. The majority holds that a California regulation
requir
ing charitable organizations to disclose tax forms
containing the names and contributions of their top donors
unconstitutionally burdens the right to associate even if the
forms are not publicly disclosed.
In so holding, the Court discards its decades-long require-
ment that, to establish a cognizable burden on their associa-
tional rights, plaintiffs must plead and prove that disclosure
will likely expose them to objective harms, such as threats,
harassment, or reprisals. It also departs from the tradi-
tional, nuanced approach to First Amendment challenges,
whereby the degree of means-end tailoring required is
commensurate to the actual burdens on associational rights.
Finally, it recklessly holds a state regulation facially invalid
despite petitioners' failure to show that a substantial propor-
tion of those affected would prefer anonymity, much less that
they are objectively burdened by the loss of it.
Today's analysis marks reporting and disclosure require-
ments with a bull's-eye. Regulated entities who wish to
avoid their obligations can do so by vaguely waving toward
First Amendment “privacy concerns.” Ante, at 617. It
does not matter if not a single individual risks experiencing
a single reprisal from disclosure, or if the vast majority of
those affected would happily comply. That is all irrelevant
to the Court's determination that California's Schedule B re-
quirement is facially unconstitutional. Neither precedent
nor common sense supports such a result. I respectfully
dissent.
I
Charitable organizations that wish to solicit tax-deductible
contributions from California residents must maintain mem-
bership in a registry managed by the California attorney
general. Cal. Govt. Code Ann. §§ 12584, 12585 (West 2018).
As a condition of membership, the attorney general requires
charities to submit a complete copy of Internal Revenue
Service (IRS) Form 990, including Schedule B, on which
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625
Sotomayor, J., dissenting
501(c)(3) organizations report the names and contributions of
their
major donors. See Cal. Code Regs., tit. 11, § 301
(2021); 26 CFR §§ 1.6033–2(a)(2)(ii), (iii) (2020). California
regulations expressly require that Schedule Bs remain con-
fdential, Cal. Code Regs., tit. 11, § 310(b), and the attorney
genera l's office has implemented enhanced protocols to
ensure confdentiality.
1
California relies on Schedule Bs to
investigate fraud and other malfeasance.
After the attorney general's offce stepped up its efforts
to enforce California's Schedule B reporting requirement,
petitioners Americans for Prosperity Foundation (Founda-
tion) and Thomas More Law Center (Law Center) sought
an injunction against the requirement. They alleged that
the requirement “unconstitutionally burden[ed] their First
Amendment right to free association by deterring individu-
als from fnancially supporting them.” Americans for Pros-
perity Foundation v. Becerra, 903 F. 3d 1000, 1006 (CA9
2018). They pointed to evidence that their supporters
experienced threats, reprisals, and harassment when their
identities and associations became publicly known in other
contexts. Importantly, however, the Foundation and Law
Center failed to show that such consequences would result
from the confdential submission of their top donors' identi-
1
Schedule Bs are kept in a confdential database used only by the Chari-
table Trusts Section and inaccessible to others in California's attorney
general's offce. Employees who fail to safeguard confdential information
are subject to discipline. See generally Cal. Govt. Code Ann. § 19572
(West 2009). In light of previous security breaches disclosed in this litiga-
tion, see ante, at 604–605, the attorney general's offce instituted a series
of measures to ensure that Schedule B information remains confdential.
The offce has adopted a system of text searching forms before they are
uploaded onto the Internet to ensure that none contain Schedule B infor-
mation. The offce now also runs automated scans of publicly accessible
government databases to identify and remove any documents containing
Schedule B information that may be inadvertently uploaded. See Ameri-
cans for Prosperity Foundation v. Becerra, 903 F. 3d 1000, 1018 (CA9
2018).
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626 AMERICANS
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ties to California's attorney general's offce in light of the
secur
ity mechanisms the offce has now implemented.
II
Because the freedom to associate needs “breathing space
to survive,” NAACP v. Button, 371 U. S. 415, 433 (1963),
this Court has recognized that associational rights must be
“protected not only against heavy-handed frontal attack, but
also from being stifed by more subtle governmental inter-
ference,” Bates v. Little Rock, 361 U. S. 516, 523 (1960).
Publicizing individuals' association with particular groups
might expose members to harassment, threats, and repris-
als by opponents of those organizations. Individuals may
choose to disassociate themselves from a group altogether
rather than face such backlash.
Acknowledging that risk, this Court has observed that
“privacy in group association may in many circumstances
be indispensable to preservation of freedom of association,
particularly where a group espouses dissident beliefs.”
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462
(1958). That observation places special emphasis on the
risks actually resulting from disclosure. Privacy “may” be
indispensable to the preservation of freedom of association,
but it need not be. It depends on whether publicity will
lead to reprisal. For example, privacy can be particularly
important to “dissident” groups because the risk of retalia-
tion against their supporters may be greater. For groups
that promote mainstream goals and ideas, on the other hand,
privacy may not be all that important. Not only might their
supporters feel agnostic about disclosing their association,
they might actively seek to do so.
Given the indeterminacy of how disclosure requirements
will impact associational rights, this Court requires plaintiffs
to demonstrate that a requirement is likely to expose their
supporters to concrete repercussions in order to establish an
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627
Sotomayor, J., dissenting
actual burden. It then applies a level of means-end tailoring
propor
tional to that burden. The Court abandons that ap-
proach here, instead holding that narrow tailoring applies to
disclosure requirements across the board, even if there is no
evidence that they burden anyone at all.
A
Before today, to demonstrate that a reporting or disclosure
requirement would chill association, litigants had to show “a
reasonable probability that the compelled disclosure of . . .
contributors' names will subject them to threats, harass-
ment, or reprisals from either Government offcials or pri-
vate parties.” Buckley v. Valeo, 424 U. S. 1, 74 (1976) (per
curiam). Proof could include “specifc evidence of past or
present harassment of members due to their associational
ties, or of harassment directed against the organization it-
self,” ibid., as well as evidence that “fear of community
hostility and economic reprisals that would follow public dis-
closure . . . had discouraged new members from joining ” an
organization or caused “former members to withdraw,”
Bates, 361 U. S., at 524. Although the Court has never im-
posed an “unduly strict requiremen[t] of proof,” Buckley, 424
U. S., at 74, it has consistently required at least some record
evidence demonstrating a risk of such objective harms. See
Bates, 361 U. S., at 523–524; Patterson, 357 U. S., at 462–463.
Indeed, the Court has expressly held that parties do not
have standing to bring claims where they assert nothing
more than that government action will cause a “subjective
`chill.' ” Laird v. Tatum, 408 U. S. 1, 13–14 (1972). It does
not matter if an individual perceives a government regula-
tion “as inappropriate,” or believes “it is inherently danger-
ous for the [government] to be concerned with” a particular
activity, or has “generalized yet speculative apprehensive-
ness that the [government] may at some future date misuse
the information in some way that would cause direct harm”
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628 AMERICANS
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to her. Id., at 13. She must still allege a risk of objective
har
m. See id., at 14; see also Clapper v. Amnesty Int'l
USA, 568 U. S. 398, 417–418 (2013).
Consistent with this approach, the Court has carefully
scrutinized record evidence to determine whether a disclo-
sure requirement actually risks exposing supporters to back-
lash. See Patterson, 357 U. S., at 462 (compelled disclosure
of NAACP members “entail[ed] the likelihood of a substan-
tial restraint” on association in light of “an uncontroverted
showing ” that past disclosures exposed members “to eco-
nomic reprisal, loss of employment, threat of physical coer-
cion, and other manifestations of public hostility”); Bates, 361
U. S., at 523–524 (compelled disclosure of NAACP member-
ship “would work a signifcant interference with the freedom
of association” based on “uncontroverted evidence” that past
identifcation “had been followed by harassment and threats
of bodily harm”); Shelton v. Tucker, 364 U. S. 479, 486 (1960)
(disclosure of teachers' organizational affliations impaired
association because record evidence substantiated a “fear of
public disclosure” and a “constant and heavy” pressure on
teachers “to avoid any ties which might displease those who
control [their] professional destin[ies]”); Buckley, 424 U. S.,
at 69–70 (“any serious infringement” on associational rights
caused by the compelled disclosure of contributors was
“highly speculative” on the record before the Court).
Hence, in Doe v. Reed, 561 U. S. 186 (2010), the Court re-
jected a facial challenge to the public disclosure of referenda
signatories on the ground that the “typical referendum” con-
cerned revenue, budget, and tax policies unlikely to incite
threats or harassment. Id., at 200–201. Any judge who
has witnessed local fghts over raising taxes, funding schools,
building sewer systems, or rerouting roads can surely envis-
age signatories with reason to keep their support for such
measures private. But in Reed, such subjective reasons did
not suffce to establish a cognizable burden on associational
rights.
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629
Sotomayor, J., dissenting
Today, the Court abandons the requirement that plaintiffs
demonstrate
that they are chilled, much less that they are
reasonably chilled. Instead, it presumes (contrary to the ev-
idence, precedent, and common sense) that all disclosure re-
quirements impose associational burdens. For example, the
Court explains that there is a risk of chill in this suit because
the government requires disclosure of the identity of any
donor “with reason to remain anonymous.” Ante, at 617.
The Court does not qualify that statement, nor does it re-
quire record evidence of such reasons. If the Court did, it
would not be able to strike California's Schedule B require-
ment down in all its applications, because the only evidence
in the record of donors with any reason to remain anonymous
is that of petitioners'.
2
At best, then, a subjective preference for privacy, which
previously did not confer standing, now subjects disclosure
requirements to close scrutiny. Of course, all disclosure re-
quires some loss of anonymity, and courts can always imag-
ine that someone might, for some reason, prefer to keep their
donations undisclosed. If such speculation is enough (and
apparently it is), then all disclosure requirements ipso facto
impose cognizable First Amendment burdens.
Indeed, the Court makes obvious its presumption that all
disclosure requirements are burdensome by beginning its
analysis of “burden” with an evaluation of means-end ft in-
stead. “[A] reasonable assessment of the burdens imposed
by disclosure,” the Court explains, “should begin with an un-
derstanding of the extent to which the burdens are unneces-
sary, and that requires narrow tailoring.” Ante, at 611; see
also ante, at 617 (excusing plaintiffs from showing any bur-
den if a disclosure law is not narrowly tailored).
I disagree. A reasonable assessment of the burdens im-
posed by disclosure should begin by determining whether
those burdens even exist. If a disclosure requirement im-
2
See Part IV, in fra.

630 AMERICANS
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Sotomayor, J., dissenting
poses no burdens at all, then of course there are no “unneces-
sary”
burdens. Likewise, if a disclosure requirement im-
poses no burden for the Court to remedy, there is no need
for it to be closely scrutinized. By forgoing the requirement
that plaintiffs adduce evidence of tangible burdens, such as
increased vulnerability to harassment or reprisals, the Court
gives itself license to substitute its own policy preferences
for those of politically accountable actors.
B
All this would be less troubling if the Court still required
means-end tailoring commensurate to the actual burden im-
posed. It does not. Instead, it adopts a new rule that
every reporting or disclosure requirement be narrowly tai-
lored. See ante, at 608 (“While exacting scrutiny does not
require that disclosure regimes be the least restrictive
means of achieving their ends, it does require that they be
narrowly tailored to the government's asserted interest”).
1
Disclosure requirements burden associational rights only
indirectly and only in certain contexts. For that reason, this
Court has never necessarily demanded such requirements to
be narrowly tailored. Rather, it has reserved such auto-
matic tailoring for state action that “directly and immedi-
ately affects associational rights.” Boy Scouts of America
v. Dale, 530 U. S. 640, 659 (2000); see also Buckley, 424 U. S.,
at 22, 25 (requiring a “closely drawn” ft for political contri-
bution limits, which directly “limit one important means of
associating with a candidate or committee”). When it comes
to reporting and disclosure requirements, the Court has
instead employed a more fexible approach, which it has
named “exacting scrutiny.” See ante, at 607–608 (opinion of
Roberts, C. J.).
Exacting scrutiny requires two things: frst, there must be
“ `a “substantial relation” between the disclosure require-
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631
Sotomayor, J., dissenting
ment and a “suffciently important” government interest,' ”
and
second, “ `the strength of the governmental interest
must refect the seriousness of the actual burden on First
Amendment rights.' ” Reed, 561 U. S., at 196. Exacting
scrutiny thus incorporates a degree of fexibility into the
means-end analysis. The more serious the burden on First
Amendment rights, the more compelling the government's
interest must be, and the tighter must be the ft between
that interest and the government's means of pursuing it.
By contrast, a less substantial interest and looser ft will suf-
fce where the burden on First Amendment rights is weaker
(or nonexistent). In other words, to decide how closely tai-
lored a disclosure requirement must be, courts must ask an
antecedent question: How much does the disclosure require-
ment actually burden the freedom to associate?
This approach refects the longstanding principle that the
requisite level of scrutiny should be commensurate to the
burden a government action actually imposes on First
Amendment rights. See, e. g., Burdick v. Takushi, 504 U. S.
428, 434 (1992) (“[T]he rigorousness of our inquiry . . . de-
pends upon the extent to which a challenged regulation bur-
dens” First Amendment rights); Board of Trustees of State
Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989) (“[C]ommercial
speech enjoys a limited measure of protection, commensu-
rate with its subordinate position in the scale of First
Amendment values, and is [thus] subject to modes of regula-
tion that might be impermissible in the realm of noncommer-
cial expression” (internal quotation marks and alterations
omitted)); see also Fulton v. Philadelphia, 593 U. S. 522, 543
(2021) (Barrett, J., concurring) (noting the “nuanced” ap-
proach the Court generally takes in the “resolution of con-
ficts between generally applicable laws and . . . First
Amendment rights”).
Compare, for instance, the Court's approaches in Shelton
v. Tucker and Doe v. Reed. At issue in Shelton was an
Arkansas statute passed in 1958 that compelled all public
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school teachers, as a condition of employment, to submit an-
nua
lly a list of every organization to which they belonged
or regularly contributed. 364 U. S., at 480–481. The Court
held that the disclosure requirement “comprehensive[ly] in-
terfere[d] with associational freedom,” because record evi-
dence demonstrated a signifcant risk that the information
would be publicly disclosed, and such disclosure could lead to
public pressure on school boards “to discharge teachers who
belong to unpopular or minority organizations.” Id., at 486–
487, 490. Arkansas's statute did not require that the infor-
mation remain confdential; each school board was “free to
deal with the information as it wishe[d].” Id., at 486. In-
deed, “a witness who was a member of the Capital Citizen[s']
Council” (an organization dedicated to resisting school inte-
gration)
3
“testifed that his group intended to gain access”
to the teachers' affdavits “with a view to eliminating from
the school system persons who supported organizations un-
popular with the group.” Ibid., n. 7. Moreover, a starkly
asymmetric power dynamic existed between teachers, who
were “hired on a year-to-year basis,” and the hiring authori-
ties to whom their membership lists were submitted. Id.,
at 482. The Arkansas Legislature had made no secret of its
desire for teachers' disclosures to be used for hiring and fr-
ing decisions. One year after enacting the disclosure require-
ment at issue in Shelton, the legislature enacted another pro-
vision that made it outright unlawful for state governmental
bodies to employ members of the NAACP. Shelton v.
McKinley, 174 F. Supp. 351, 353–354 (ED Ark. 1959). It
is thus unsurprising that the Court found that Arkansas
teachers would feel a “constant and heavy” pressure “to
avoid any ties which might displease those who control [their]
professional destin[ies].” 364 U. S., at 486; see also Keyis-
hian v. Board of Regents of Univ. of State of N. Y., 385 U. S.
589, 604 (1967) (“When one must guess what conduct or ut-
3
See Hagley, Massive Resistance—The Rhetoric and the Reality, 27
N. M. L. Rev. 167, 203 (1997).
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Sotomayor, J., dissenting
terance may lose him his position, one necessarily will steer
far
wider of the [impermissible] zone” (internal quotation
marks omitted)). Because Arkansas's purpose (ensuring
teachers' ftness) was “pursued by means that broadly stife
fundamental personal liberties,” the Court demanded that
Arkansas “more narrowly achiev[e]” its interest. Shelton,
364 U. S., at 488.
Now consider this Court's approach in Reed. Reed in-
volved a facial challenge to a Washington law permitting the
public disclosure of referendum petitions that included signa-
tories' names and addresses. 561 U. S., at 190–191. The
Court found that Washington had a number of other mecha-
nisms in place to pursue its stated interest in preventing
fraudulent referendum signatures. For instance, the secre-
tary of state was charged with verifying and canvassing the
names on referendum petitions, advocates and opponents of
a measure could observe the canvassing process, and citizens
could challenge the secretary's actions in court. Id., at 198.
Publicly disclosing referendum signatories was thus a mere
backstop, giving citizens the opportunity to catch the secre-
tary's mistakes. Had Washington been required to achieve
its interests narrowly, as in Shelton, it is unlikely the disclo-
sure requirement would have survived.
4
In crucial contrast to Shelton, however, the Reed Court
found “scant evidence” that disclosure exposed signatories of
typical referendums to “threats, harassment, or reprisals
from either Government offcials or private parties.” 561
U. S., at 200–201 (internal quotation marks omitted). Given
4
For instance, the Court did not ask whether the public disclosure of
signatories' names and addresses was “in proportion to the” government's
interest in policing fraud. Ante, at 614 (internal quotation marks omit-
ted). Nor did it feel any need to respond to the dissent's description of
ways in which Washington's interest could be met without public disclo-
sure. Reed, 561 U. S., at 234–238 (opinion of Thomas, J.). It was enough
that public disclosure could “help” advance electoral integrity. Id., at 198
(majority opinion). The Court is clearly wrong to suggest it applied
narrow tailoring in Reed. See ante, at 611.
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the “modest burdens” imposed by the requirement, id., at
201,
the Court required a correspondingly modest level of
tailoring. Under that standard, the disclosure requirement
passed muster, and the Court refused to facially strike it
down.
The public disclosure regimes in both Shelton and Reed
served important government goals. Yet the Court's as-
sessment of each differed considerably because the First
Amendment burdens differed. This fexible approach is
necessary because not all reporting and disclosure regimes
burden associational rights in the same way.
2
The Court now departs from this nuanced approach in
favor of a “one size fts all” test. Regardless of whether
there is any risk of public disclosure, and no matter if the
burdens on associational rights are slight, heavy, or nonexist-
ent, disclosure regimes must always be narrowly tailored.
The Court searches in vain to fnd a foothold for this new
approach in precedent. The Court frst seizes on Shelton's
statement that a governmental interest “ `cannot be pursued
by means that broadly stife fundamental personal liberties
when the end can be more narrowly achieved.' ” Ante, at
609 (quoting 364 U. S., at 488). The Court could not have
cherry-picked a less helpful quote. By its own terms, Shel-
ton held that an end must be “more narrowly achieved” only
if the means “broadly stife” First Amendment liberties, that
is, only if the means impose a severe burden on associa-
tional rights.
5
5
The Court claims that “broadly stife” refers “to the scope of chal-
lenged restrictions” rather than “the severity of any demonstrated bur-
den.” Ante, at 610. That reading ignores the verb “stife” and its object,
“fundamental personal liberties.” The Court wishes the sentence said
that a government interest “cannot be pursued by [broad] means.” It
does not.
The Court also fnds meaning in the fact that Shelton criticized Arkan-
sas's challenged disclosure regime for not being narrowly tailored. Ibid.
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In any event, the Court need not read a few isolated sen-
tences
from that opinion to divine Shelton's meaning. As
described, see Part II–B–1, supra, the Court in Shelton con-
cluded that a reasonable “fear of public disclosure” and an
asymmetric power dynamic with hiring authorities would re-
sult in a “constant and heavy” pressure on teachers “to avoid
any ties which might displease those who control [their] pro-
fessional destin[ies].” 364 U. S., at 486. Recall that a wit-
ness had testifed that his white supremacist organization
would seek to obtain the identities of teachers working on
civil rights issues in order to eradicate them from the school
system, and that just a year after Arkansas enacted its dis-
closure law, it enacted a law prohibiting the hiring of mem-
bers of the NAACP as public school teachers. The problem
was not the breadth of the inquiry; it was the signifcant
risk that teachers would face serious repercussions for their
disclosed associations.
6
But the Shelton Court had already explained why the failure to narrowly
tailor was problematic: because the statute signifcantly burdened Arkan-
sas teachers' associational rights. See Shelton, 364 U. S., at 485–487. In
no way did the Court suggest that narrow tailoring was necessary in the
absence of a signifcant burden on associational rights.
6
The statement the Court cites from Baird v. State Bar of Ariz., 401
U. S. 1, 6 (1971) (plurality opinion), must be read in a similar context. See
ante, at 610. Baird involved the Arizona State Bar's requirement that
lawyers seeking admission disclose their organizational affliations and
face denial if they gave the wrong answers. The “state inquiries” were
not just “[b]road and sweeping ”; they were designed to identify and “pun-
is[h]” applicants who “[held] certain beliefs” or were “member[s] of a par-
ticular political organization.” 401 U. S., at 6. As the Court explained,
“a State may not inquire about a man's views or associations solely for the
purpose of withholding a right or beneft because of what he believes.”
Id., at 7. The Court nowhere suggests that California will “punish”
donors for their beliefs. That logic thus has no application here.
The Court also draws on language from NAACP v. Button, 371 U. S.
415 (1963). Ante, at 610. But that case did not involve a disclosure re-
quirement at all. It involved a law that made it a crime for a person to
advise another of the infringement of her legal rights and to refer her to
a group of attorneys, like the legal staff of the NAACP, for assistance.
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The Court next looks to McCutcheon v. Federal Election
C
omm'n, 572 U. S. 185 (2014) (plurality opinion), which ad-
dressed political contribution limits, not disclosure regimes.
It is no surprise that the Court subjected the former to nar-
row tailoring, as Buckley had already held that contribution
limits directly “impinge on protected associational free-
doms.” 424 U. S., at 22; see also McCutcheon, 572 U. S., at
204 (explaining that aggregate limits on contributions “di-
minish an individual's right of political association” by “limit-
[ing] the number of candidates he supports” or the amount
of money he gives). Buckley itself distinguished the First
Amendment burdens of disclosure requirements and contri-
bution limits. See 424 U. S., at 64 (noting that, unlike contri-
bution limits, “disclosure requirements impose no ceiling on
campaign-related activities” and concluding only that com-
pelled disclosure “can” infringe associational rights). Ap-
parently, those distinctions no longer matter.
Neither Shelton nor McCutcheon, then, supports the idea
that all disclosure requirements must be narrowly tailored.
McCutcheon arose in the context of a direct limit on associa-
tional freedoms, while the law in Shelton “broadly stife[d]”
associational rights. Ignoring these distinctions, the Court
decides that it will indiscriminately require narrow tailoring
for every single disclosure regime. The Court thus trades
precision for blunt force, creating a signifcant risk that it
will topple disclosure regimes that should be constitutional,
and that, as in Reed, promote important governmental
interests.
III
A
Under a First Amendment analysis that is faithful to this
Court's precedents, California's Schedule B requirement is
constitutional. Begin with the burden it imposes on associa-
tional rights. Petitioners have unquestionably provided evi-
dence that their donors face a reasonable probability of
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637
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threats, harassment, and reprisals if their affliations are
made
public. See ante, at 604. California's Schedule B reg-
ulation, however, is a nonpublic reporting requirement, and
California has implemented security measures to ensure that
Schedule B information remains confdential.
7
Nor have petitioners shown that their donors, or any orga-
nization's donors, will face threats, harassment, or reprisals
if their names remain in the hands of a few California state
offcials. The Court notes that, under Shelton, disclosure
requirements can chill association even absent public disclo-
sure. See ante, at 616. In Shelton, however, there was a
serious concern that hiring authorities would punish teach-
ers for their organizational affliations. See 364 U. S., at 486.
By contrast, the Court in no way suggests that California
offcials will use Schedule B information to retaliate against
any organization's donors. If California's reporting require-
ment imposes any burden at all, it is at most a very slight
one.
B
1
Given the modesty of the First Amendment burden, Cali-
fornia may justify its Schedule B requirement with a corre-
spondingly modest showing that the means achieve its ends.
7
Although in the Court's view, the actual risk of reprisals is apparently
irrelevant, the Court notes that the District Court concluded that Califor-
nia's attorney general could not ensure the confdentiality of Schedule B
information. See ante, at 616, n. But the Ninth Circuit held this fnding
to be clearly erroneous because the District Court rested its conclusion
“solely on the state's past inability to ensure confdentiality.” 903 F. 3d,
at 1019 (internal quotation marks omitted). The District Court never ex-
plained why the current security measures were insuffcient to protect
donors' confdentiality. As the Ninth Circuit observed, “the changes the
Attorney General has adopted since those breaches occurred” show that
the “risk of inadvertent disclosure of any Schedule B information in the
future is small, and the risk of inadvertent disclosure of the plaintiffs'
Schedule B information in particular is smaller still.” Ibid.; see also
n. 1, supra.
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Sotomayor, J., dissenting
See Reed, 561 U. S., at 201. California easily meets this
st
andard.
California collects Schedule Bs to facilitate supervision of
charities that operate in the State. As the Court acknowl-
edges, this is undoubtedly a signifcant governmental inter-
est. See ante, at 612. In the United States, responsibility
for overseeing charities has historically been vested in
States' attorneys general, who are tasked with prosecuting
charitable fraud, self-dealing, and misappropriation of chari-
table funds. Effective policing is critical to maintaining
public confdence in, and continued giving to, charitable orga-
nizations. California's interest in exercising such oversight
is especially compelling given the size of its charitable sector.
Nearly a quarter of the country's charitable assets are held
by charities registered in California. Brief for Scholars of
the Law of Non-Proft Organizations as Amici Curiae 10;
see ibid. (“As of June 2018, charities registered in California
reported $295 billion in annual income and net assets of
$851 billion”).
The Schedule B reporting requirement is properly tailored
to further California's efforts to police charitable fraud. See
Reed, 561 U. S., at 198–199 (noting that disclosure “helps”
combat fraud, even if it is not the least restrictive method of
doing so). The IRS Schedule B form requires organizations
to disclose the names and addresses of their major donors,
the total amount of their contributions, and whether the do-
nation was cash or in-kind. See 26 CFR §§ 1.6033–2(a)(2)(ii),
(iii). If the gift is in-kind, Schedule B requires a description
of the property and its fair market value.
Schedule B and other parts of Form 990 help attorneys in
the Charitable Trusts Section of the California Department
of Justice (Section) uncover whether an offcer or director of
a charity is engaged in self-dealing, or whether a charity has
diverted donors' charitable contributions for improper use.
Appellant-Cross-Appellee's Excerpts of Record in No. 16–
55727 etc. (CA9), pp. 575, 716–718 (16–55727 ER). It helps
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639
Sotomayor, J., dissenting
them determine whether a donor is using the charity as a
pass-through
entity, including as a source of improper loans
that the donor repays as a contribution. Id., at 577–578,
716–718. It helps them identify red fags, such as discrepan-
cies in reporting contributions across different schedules.
Id., at 578 – 579, 716 –718. And it helps them deter-
mine whether a charity has infated the value of a donor's in-
k i nd contr ibuti on i n order, for i nst ance, to overst ate
how effciently the charity expends resources. Id., at 721–
727.
As a former head of the Section described it, Schedule B
combined with the rest of Form 990 provides “[a] roadmap
to the rest of the investigation that follows.” Id., at 717.
Indeed, having Schedule Bs on hand is important to attor-
neys' decisions regarding whether to advance an investiga-
tion at all. One of the frst things an auditor or lawyer does
upon receiving a complaint is review the entire Form 990,
including Schedule B. Id., at 969–970, 996–997, 1062–1063.
One Section leader testifed that she used Schedule Bs “[a]ll
the time” for this purpose. App. in No. 19–251, p. 413.
In sum, the evidence shows that California's confdential
reporting requirement imposes trivial burdens on petition-
ers' associational rights and plays a meaningful role in Sec-
tion attorneys' ability to identify and prosecute charities
engaged in malfeasance. That is more than enough to sat-
isfy the First Amendment here.
2
Much of the Court's tailoring analysis is categorically inap-
propriate under the correct standard of review. In any
event, the Court greatly understates the importance to Cali-
fornia of collecting information on charitable organizations'
top donors.
The Court claims that the collection of Schedule Bs does
not form an “integral” part of California's fraud detection
efforts and has never done “ `anything ' ” to advance investi-
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gative efforts.
8
An
te, at 613. The record reveals other-
wise. As discussed, Section leaders report that they use
Schedule Bs “[a]ll the time” and rely on them to create road-
maps for their investigations. App. in No. 19–251, at 413;
see also 16–55727 ER, at 717. The Court further complains
that California does not rely on Schedule Bs to “initiate”
investigations. Ante, at 614, 618. But disclosure assists
California in its decisions whether to advance or end an in-
vestigation. Perhaps the Court's main concern is that Cali-
fornia has not identifed enough instances in which Schedule
B played a unique role in prosecuting charitable malfeasance.
But “[l]ike a jigsaw puzzle,” investigations often advance
“only by placing in the proper place the many pieces of evi-
dence that, taken singly, would show comparatively little.”
Andresen v. Maryland, 427 U. S. 463, 481, n. 10 (1976).
The Court next insists that California can rely on alterna-
tive mechanisms, such as audit letters or subpoenas, to ob-
tain Schedule B information. But the Section receives as
many as 100 charity-related complaints a month. App. in
No. 19–251, at 307. It is not feasible for the Section, which
has limited staff and resources, to conduct that many audits.
See Appellant-Cross-Appellee's Excerpts of Record in No.
16–56855 etc. (CA9), pp. 512–513. The subpoena process is
also time consuming: Letters must go through multiple lay-
ers of review and waiting for a response causes further de-
lays during which a charity can continue its malfeasance.
App. in No. 19–251, at 412.
Implicitly acknowledging that audits and subpoenas are
more cumbersome and time consuming, the Court trivializes
the State's interest in what it calls “ease of administration.”
8
The Court goes so far as to suggest that the State does not rely on
Schedule B collection to “prevent and police fraud” and to imply the Dis-
trict Court found the same. Ante, at 613. Yet the District Court ex-
pressly acknowledged that it did “not doubt that the Attorney General
does in fact use the Schedule Bs it collects.” Thomas More Law Center
v. Harris, 2016 WL 6781090, *2 (CD Cal., Nov. 16, 2016).
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641
Sotomayor, J., dissenting
Ante, at 614. Yet in various contexts, the Court has recog-
ni
zed that an interest in “effciency” is critical to the effective
operation of public agencies.
9
See, e. g., Bailey v. United
States, 568 U. S. 186, 200 (2013) (“[T]he law enforcement in-
terests in conducting a safe and effcient search” justify de-
taining “occupants on the premises during the execution of
a search warrant”); Civil Service Comm'n v. Letter Carriers,
413 U. S. 548, 564 (1973) (seeking a constitutional balance be-
tween the interests of a government employee in comment-
ing on matters of public concern and the interest of the
government in the effciency of the services it performs).
In addition to being burdensome, audit letters and subpoe-
nas can also signifcantly undercut the Section's work by
alerting an organization to the existence of an investigation,
giving it a chance to hide assets or tamper with evidence.
The Court dismisses this concern as unsubstantiated. Yet
one Section head reported that this had “happened several
times,” and another testifed to her personal experience with
organizations “fabricat[ing]” and “destroy[ing] records” after
being tipped off to an investigation. 16–55727 ER, at 590,
998–999.
10
A State surely has a compelling interest in en-
suring that the subject of an investigation does not destroy
evidence or hide funds before investigators have an opportu-
nity to fnd them. Cf. Kentucky v. King, 563 U. S. 452, 460
(2011) (“[T]he need to prevent the imminent destruction of
evidence has long been recognized as a suffcient justifcation
9
Of course, an interest in effciency cannot justify constitutional viola-
tions, but it is an important governmental interest when deciding whether
a constitutional violation has taken place at all. See Bailey v. United
States, 568 U. S. 186, 199–200 (2013).
10
The Court asserts that “the actions of investigators” do not “suggest
a risk of tipping off charities” because the Section's standard practice is
to send an audit letter early in an investigation. Ante, at 614. Where
the Section suspects serious fraud, however, it obtains a temporary re-
straining order to freeze assets before ever contacting the charity. See
16–55727 ER, at 591. The Section's actions thus demonstrate exactly the
fear of tipping off charities that this Court so hastily dismisses.
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for a warrantless search” (internal quotation marks omit-
ted)).
The Court ignores those interests here.
IV
In a fnal coup de grâce, the Court concludes that Califor-
nia's reporting requirement is unconstitutional not just as
applied to petitioners, but on its very face. “In the First
Amendment context,” such broad relief requires proof that
the requirement is unconstitutional in “ `a substantial num-
ber of . . . applications . . . , judged in relation to the statute's
plainly legitimate sweep.' ” United States v. Stevens, 559
U. S. 460, 473 (2010). “Facial challenges are disfavored for
several reasons,” prime among them because they “often
rest on speculation.” Washington State Grange v. Washing-
ton State Republican Party, 552 U. S. 442, 450 (2008). Spec-
ulation is all the Court has. The Court points to not a single
piece of record evidence showing that California's reporting
requirement will chill “a substantial number” of top donors
from giving to their charities of choice.
11
Yet it strikes the
requirement down in every application.
The average donor is probably at most agnostic about hav-
ing their information confdentially reported to California's
attorney general. A signifcant number of the charities reg-
istered in California engage in uncontroversial pursuits.
They include hospitals and clinics; educational institutions;
orchestras, operas, choirs, and theatrical groups; museums
and art exhibition spaces; food banks and other organizations
11
The Court highlights the “flings of hundreds of organizations as amici
curiae in support of ” petitioners in this suit. Ante, at 617. Those briefs,
of course, are not record evidence. Moreover, even if those organizations
had each provided evidence that California's reporting requirement would
subject their top donors to harassment and reprisals (they did not), this
still would not demonstrate that a substantial proportion of the reporting
requirement's applications are unconstitutional when “ `judged in relation
to [its] plainly legitimate sweep.' ” United States v. Stevens, 559 U. S.
460, 473 (2010). Some 60,000 charities renew their registrations with Cal-
ifornia each year, and nearly all must fle a Schedule B. See ante, at 612.
The amici are just a small fraction of the disclosure requirement's reach.
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643
Sotomayor, J., dissenting
providing services to the needy, the elderly, and the disabled;
ani
mal shelters; and organizations that help maintain parks
and gardens. Brief for Public Citizen et al. as Amici Curiae
12–13. It is somewhat hard to fathom that donors to the
Anderson Elementary School PTA, the Loomis-Eureka
Lakeside Little League, or the Santa Barbara County Horti-
cultural Society (“[c]elebrating plants since 1880”) are less
likely to give because their donations are confdentially
reported to California's Charitable Trusts Section.
12
In fact, research shows that the vast majority of donors
prefer to publicize their charitable contributions. See Dren-
nan, Where Generosity and Pride Abide: Charitable Naming
Rights, 80 U. Cin. L. Rev. 45, 50 (2011) (“Research reveals
that anonymous largesse from the wealthy has become
rare”); Posner, Altruism, Status, and Trust in the Law of
Gifts and Gratuitous Promises, 1997 Wis. L. Rev. 567, 574,
n. 17 (“[C]haritable gifts are rarely made anonymously”).
One study found that anonymous gifting accounted for less
than 1% of all donations to Yale Law School, Harvard Law
School, and Carnegie Mellon University. Glazer & Konrad,
A Signaling Explanation for Charity, 86 Am. Econ. Rev. 1019,
1021 (1996). Symptomatic of this trend is the explosion in
charitable naming rights since the mid-1990s. Drennan, 80
U. Cin. L. Rev., at 50, 55. As one author has recounted,
“every nook and cranny of [public] buildings” is now “tagged
by some wealthy, generous and obviously not publicity-shy
donor.” Isherwood, The Graffti of the Philanthropic Class,
N. Y. Times, Dec. 2, 2007.
Of course, it is always possible that an organization is in-
herently controversial or for an apparently innocuous organi-
zation to explode into controversy. The answer, however, is
to ensure that confdentiality measures are sound or, in the
case of public disclosures, to require a procedure for govern-
12
See California Dept. of Justice, Offce of Atty. Gen., Charity Registra-
tion Reports (June 15, 2021), https://oag.ca.gov/charities/reports#crr;
Santa Barbara County Horticultural Society (June 15, 2021), https://
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644 AMERICANS
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ments to address requests for exemptions in a timely man-
ner
. It is not to hamper all government law enforcement
efforts by forbidding confdential disclosures en masse.
Indeed, this Court has already rejected such an indiscrimi-
nate approach in the specifc context of disclosure require-
ments. Just over a decade ago, in Reed, petitioners demon-
strated that their own supporters would face reprisal if their
opposition to expanding domestic partnership laws became
public. That evidence did not support a facial challenge to
Washington's public disclosure law, however, because the
“typical referendum petitio[n] concern[ed] tax policy, reve-
nue, budget, or other state law issues,” and “there [was] no
reason to assume that any burdens imposed by disclosure
of typical referendum petitions would be remotely like the
burdens plaintiffs fear in this case.” 561 U. S., at 200–201
(internal quotation marks omitted); see also id., at 202–203
(Alito, J., concurring) (“Many referendum petitions concern
relatively uncontroversial matters, and plaintiffs have pro-
vided no reason to think that disclosure of signatory informa-
tion in those contexts would signifcantly chill the willing-
ness of voters to sign. Plaintiffs' facial challenge therefore
must fail” (citation omitted)).
So too here. Many charitable organizations “concern rela-
tively uncontroversial matters” and petitioners “have pro-
vided no reason to think that” confdential disclosure of
donor information “would signifcantly chill the willingness
of ” most donors to give. Nor does the Court provide such
a reason. It merely highlights threats that public disclosure
would pose to these two petitioners' supporters. Those
threats provide “scant evidence” of anything beyond “the
specifc harm” that petitioners' donors might experience
were their Schedule B information publicly disclosed. Id.,
at 200–201 (majority opinion). Petitioners' “facial challenge
therefore must fail.” Id., at 203 (Alito, J., concurring).
How, then, can their facial challenge succeed? Only be-
cause the Court has decided, in a radical departure from
precedent, that there no longer need be any evidence that
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a disclosure requirement is likely to cause an objective bur-
den
on First Amendment rights before it can be struck
down.
***
Today's decision discards decades of First Amendment
jurisprudence recognizing that reporting and disclosure
requirements do not directly burden associational rights.
There is no other explanation for the Court's conclusion that,
frst, plaintiffs do not need to show they are actually bur-
dened by a disclosure requirement; second, every disclosure
requirement demands narrow tailoring; and third, a facial
challenge can succeed in the absence of any evidence a state
law burdens the associational rights of a substantial propor-
tion of affected individuals.
That disclosure requirements directly burden associational
rights has been the view of Justice Thomas, see id., at 232
(dissenting opinion), but it has never been the view of this
Court. Just 11 years ago, eight Members of the Court, in-
cluding two Members of the current majority, recognized
that disclosure requirements do not directly interfere with
First Amendment rights. See id., at 196 (majority opinion).
In an opinion barely mentioned in today's decision, the Court
in Reed did the opposite of what the Court does today.
First, it demanded objective evidence that disclosure risked
exposing supporters to threats and reprisals; second, it re-
quired only a loose means-end ft in light of the “modest”
burden it found; and third, it rejected a facial challenge given
petitioners' failure to establish that signatories to the “typi-
cal” referendum had any reason to fear disclosure. See id.,
at 200–201. In so doing, the Court ensured that it would
not “short circuit the democratic process by preventing laws
embodying the will of the people from being implemented
in a manner consistent with the Constitution.” Washington
State Grange, 552 U. S., at 451.
The Court 11 years later apparently has a different view
of its role. It now calls upon the federal courts to serve “as
virtually continuing monitors of the wisdom and soundness
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of [governmental] action.” Laird, 408 U. S., at 15. There
is
no question that petitioners have shown that their donors
reasonably fear reprisals if their identities are publicly ex-
posed. The Court and I, however, disagree about the likeli-
hood of that happening and the role Schedule Bs play in the
investigation of charitable malfeasance. If the Court had
simply granted as-applied relief to petitioners based on its
reading of the facts, I would be sympathetic, although my
own views diverge. But the Court's decision is not nearly
so narrow or modest. Instead, the Court jettisons com-
pletely the longstanding requirement that plaintiffs demon-
strate an actual First Amendment burden before the Court
will subject government action to close scrutiny. It then
invalidates a regulation in its entirety, even though it can
point to no record evidence demonstrating that the regula-
tion is likely to chill a substantial proportion of donors.
These moves are wholly inconsistent with the Court's prece-
dents and our Court's long-held view that disclosure require-
ments only indirectly burden First Amendment rights.
With respect, I dissent.
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