Americans for Prosperity Foundation v. KAMALA D. HARRIS, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICANS FOR PROSPERITY
FOUNDATION,
Plaintiff-Appellee,
v.
KAMALA D. HARRIS, Attorney
General, in her Official Capacity as
Attorney General of California,
Defendant-Appellant.
No. 15-55446
D.C. No.
2:14-cv-09448-
R-FFM
THOMAS MORE LAW CENTER,
Plaintiff-Appellee,
v.
KAMALA D. HARRIS, Attorney
General, in her Official Capacity,
Defendant-Appellant.
No. 15-55911
D.C.
No. 2:15-cv-
03048-R-FFM
OPINION
Appeals from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
December 9, 2015—Pasadena, California

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AMERICANS FOR PROSPERITY V. HARRIS 2
Filed December 29, 2015
Before: Stephen Reinhardt, Raymond C. Fisher
and Jacqueline H. Nguyen, Circuit Judges.
Per Curiam Opinion
SUMMARY*
First Amendment / Preliminary Injunction
The panel vacated the district court’s orders granting
preliminary injunctions, and instructed the district court to
enter new orders preliminarily enjoining the California
Attorney General from making public, but not from
collecting, Internal Revenue Service Form 990 Schedule B
information, which contains identifying information for the
major donors of the plaintiff nonprofit organizations
Americans for Prosperity Foundation and Thomas More Law
Center.
The panel held that the district court abused its discretion
by enjoining the Attorney General from collecting plaintiffs’
Schedule B forms for law enforcement use. The panel held
that plaintiffs failed to demonstrate any actual burden on First
Amendment rights flowing from the Attorney General’s
demand for and collection of their Schedule B forms for
nonpublic use. The panel concluded that without showing
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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AMERICANS FOR PROSPERITY V. HARRIS 3
actual harm, the plaintiffs could not enjoin the Attorney
General from enforcing the disclosure requirement.
The panel held that the district court did not abuse its
discretion by enjoining public disclosure of the plaintiffs’
Schedule B forms. The panel held that under the narrow and
deferential review at the preliminary injunction stage of the
proceedings, and given the Attorney General’s own position
that Schedule B forms should not be publicly disclosed, the
panel need not hold that the district court abused its discretion
to the extent it preliminarily enjoined public disclosure
pending trial.
COUNSEL
Kamala D. Harris, Attorney General of California, Douglas
J. Woods, Senior Assistant Attorney General, Sacramento,
California; Tamar Pachter, Supervising Deputy Attorney
General, Emmanuelle S. Soichet, Deputy Attorney General,
Alexandra Robert Gordon (argued), Deputy Attorney
General, San Francisco, California; Kim L. Nguyen (argued),
Deputy Attorney General, Los Angeles, California, for
Defendant-Appellant.
Harold A. Barza and Carolyn Homer Thomas, Quinn
Emanuel Urquhart & Sullivan, LLP, Los Angeles, California;
Derek L. Shaffer (argued), William A. Burck, Jonathan G.
Cooper and Crystal R. Nwaneri, Quinn Emanuel Urquhart &
Sullivan, LLP, Washington, D.C., for Plaintiff-Appellee
Americans for Prosperity Foundation.

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AMERICANS FOR PROSPERITY V. HARRIS 4
Louis H. Castoria (argued) and Sheila M. Pham, Kaufman
Dolowich & Voluck, LLP, San Francisco, California, for
Plaintiff-Appellee Thomas More Law Center.
OPINION
PER CURIAM:
Nonprofit organizations Americans for Prosperity
Foundation and Thomas More Law Center challenge the
Attorney General of California’s collection of Internal
Revenue Service (IRS) Form 990 Schedule B, which contains
identifying information for their major donors. They argue
the nonpublic disclosure requirement is unconstitutional as
applied to them because it impermissibly burdens First
Amendment rights to free speech and association by deterring
individuals from financially supporting them. The district
court entered preliminary injunctions preventing the Attorney
General from demanding the plaintiffs’ Schedule B forms
pending a trial on the merits. We have jurisdiction under
28 U.S.C. § 1292, and we vacate the injunctions with
instructions to enter new orders preliminarily enjoining the
Attorney General from publicly disclosing, but not from
collecting, the plaintiffs’ Schedule B forms.
I.
California’s Supervision of Trustees and Fundraisers for
Charitable Purposes Act (Charitable Purposes Act) requires
the Attorney General to maintain a Registry of Charitable
Trusts and authorizes her to obtain “whatever information,
copies of instruments, reports, and records are needed for the
establishment and maintenance of the [Registry].” Cal. Gov’t

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AMERICANS FOR PROSPERITY V. HARRIS 5
Code § 12584. An organization must maintain membership
in the Registry to solicit tax-deductible donations from
California residents, see id. § 12585, and as one condition of
membership, the Attorney General requires each organization
to annually submit the complete IRS Form 990 Schedule B,
see Cal. Code Regs. tit. 11, § 301. Schedule B, which a
charitable organization files with the IRS, lists the names and
addresses of persons who have given $5,000 or more to the
organization during the preceding year.
The Attorney General’s Schedule B disclosure
requirement seeks only nonpublic disclosure of these forms,
and she seeks them solely to assist her in enforcing charitable
organization laws and ensuring that charities in the Registry
are not engaging in unfair business practices. See Ctr. for
Competitive Politics v. Harris, 784 F.3d 1307, 1311 (9th Cir.
2015). The Attorney General does not assert any state
interest in public disclosure of Schedule B forms. To the
contrary, her longstanding policy of treating Schedule B
forms as confidential, as well as her proposed regulation
formalizing that policy, confirm that the state has no interest
in public disclosure.1 This regime is readily distinguishable
from state requirements mandating public disclosure – such
as those often found in the regulation of elections – that are
intended to inform the public and promote transparency. See,
e.g., John Doe No. 1 v. Reed, 561 U.S. 186, 197 (2010);
Buckley v. Valeo, 424 U.S. 1, 66–67 (1976); Family PAC v.
McKenna, 685 F.3d 800, 806 (9th Cir. 2012).
1 We take judicial notice of the Attorney General’s proposed regulation.
See California Regulatory Notice Register, 50-Z Cal. Regulatory Notice
Register 2280-84 (Dec. 11, 2015), http://www.oal.ca.gov/res/docs/pdf/n
otice/50z-2015.pdf; see also Disabled Rights Action Comm. v. Las Vegas
Events, Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004).

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AMERICANS FOR PROSPERITY V. HARRIS 6
We are bound by our holding in Center for Competitive
Politics, 784 F.3d at 1317, that the Attorney General’s
nonpublic Schedule B disclosure regime is facially
constitutional. Compelled disclosure requirements are
evaluated under exacting scrutiny, which requires the strength
of the governmental interest to reflect the seriousness of the
actual burden on a plaintiff’s First Amendment rights. See id.
at 1312. In that case, brought as a facial challenge, we held
the Attorney General’s authority to demand and collect
charitable organizations’ Schedule B forms falls within “her
general subpoena power” and furthers California’s
compelling interest in enforcing its laws. Id. at 1317.
Applying exacting scrutiny, we rejected the facial challenge
to the disclosure requirement because the plaintiff failed to
show it placed an actual burden on First Amendment rights.
See id. at 1314–15, 1317. We left open the possibility,
however, that a future litigant might “show a reasonable
probability that the compelled disclosure of its contributors’
names will subject them to threats, harassment, or reprisals
from either Government officials or private parties that would
warrant relief on an as-applied challenge.” Id. at 1317
(alteration and internal quotation marks omitted).
The plaintiffs here, two charitable organizations engaged
in advocacy some may consider controversial, argue they
have made such a showing. They contend disclosure to the
state will infringe First Amendment rights by deterring
donors from associating with and financially supporting them,
and therefore that the Attorney General should be enjoined
from collecting their Schedule B forms, even for nonpublic
use in enforcing the law.
The district court preliminarily enjoined the Attorney
General from demanding and enforcing her demand for IRS

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AMERICANS FOR PROSPERITY V. HARRIS 7
Form 990 Schedule B from the plaintiffs.2 The Attorney
General has appealed these orders.
II.
We review the district court’s grant of a preliminary
injunction for abuse of discretion, reviewing findings of fact
for clear error and conclusions of law de novo. See id. at
1311. Reversal for clear error is warranted when the district
court’s factual determination is illogical, implausible or lacks
support in inferences that may be drawn from facts in the
record. See United States v. Hinkson, 585 F.3d 1247, 1263
(9th Cir. 2009) (en banc). A court may grant a preliminary
injunction when a party shows “serious questions” going to
the merits of its claim, a balance of hardships that tips sharply
in its favor, a likelihood of irreparable harm and that an
injunction is in the public interest. See All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
The plaintiffs argue the Attorney General must be
enjoined from demanding and collecting their Schedule B
forms on two theories. First, they argue confidential
disclosure to her office itself chills protected conduct or
would lead to persecution and harassment of their donors by
the state or the public. Second, they argue that,
notwithstanding her voluntary policy against disclosing
Schedule B forms to the public, the Attorney General may
change her policy or be compelled to release the forms under
California law, and that the resulting public disclosure will
2 The district court’s orders expressly enjoin only the collection of the
plaintiffs’ Schedule B forms, but, in doing so, necessarily prevent the
Attorney General from disclosing those forms to the public.

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AMERICANS FOR PROSPERITY V. HARRIS 8
lead to harassment of their donors by members of the public,
chilling protected conduct. We address these theories in turn.
A. The District Court Abused its Discretion by
Enjoining the Attorney General from Collecting
the Plaintiffs’ Schedule B Forms for Law
Enforcement Use.
Neither plaintiff has shown anything more than “broad
allegations or subjective fears” that confidential disclosure to
the Attorney General will chill participation or result in
harassment of its donors by the state or the public. Dole v.
Serv. Emps. Union, Local 280, 950 F.2d 1456, 1460 (9th Cir.
1991) (quoting McLaughlin v. Serv. Emps. Union, Local 280,
880 F.2d 170, 175 (9th Cir. 1989)) (internal quotation mark
omitted). The district court abused its discretion by enjoining
the Attorney General from demanding the plaintiffs’
Schedule B forms given the absence of evidence showing
confidential disclosure would cause actual harm. See Ctr. for
Competitive Politics, 784 F.3d at 1316 (“[N]o case has ever
held or implied that a disclosure requirement in and of itself
constitutes First Amendment injury.”); see also Park Vill.
Apartment Tenants Ass’n v. Mortimer Howard Trust,
636 F.3d 1150, 1160 (9th Cir. 2011) (explaining that an
overbroad injunction is an abuse of discretion). To the extent
the district court found actual chilling or a reasonable
probability of harassment from confidential disclosure to the
Attorney General, those findings are clearly erroneous.
First, the plaintiffs have not shown the demand for
nonpublic disclosure of their Schedule B forms to the
Attorney General has actually chilled protected conduct or
would be likely to do so. See Ctr. for Competitive Politics,
784 F.3d at 1314 (finding no “actual burden” on First

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AMERICANS FOR PROSPERITY V. HARRIS 9
Amendment rights). Notably, neither plaintiff has alleged
that annual disclosure of Schedule B forms to the IRS had
any chilling effect. Americans for Prosperity Foundation
proffered a declaration from its vice president for
development asserting its donors “worry that disclosure to the
Attorney General will lead to their own persecution at the
hands of state officials.”3 The declaration, however, does not
show that any donor has declined, or would decline, to
support the Foundation as a result of this worry. No evidence
supports the district court’s conclusion that donors have
expressed “their unwillingness to continue to participate if
such limited disclosure [to the Attorney General] is made.”
Thomas More Law Center’s evidence similarly fails to
show its donors have been or would be chilled from
contributing by the Attorney General’s mere collection of
Schedule B forms. The declaration from its president and
chief counsel states only that donors “would be deterred”
from donating if exposed to the type of harassment the Law
Center incurs for its public activities, but says nothing to
suggest donors have been or would be deterred by
confidential disclosure of their identifying information to the
Attorney General.
Second, the plaintiffs have not shown a “reasonable
probability” of harassment at the hands of the state if the
Attorney General is permitted to collect their Schedule B
3 Although much of the plaintiffs’ evidence includes hearsay, the district
court did not abuse its discretion by considering it at the preliminary
injunction stage. See Herb Reed Enters., LLC v. Florida Entm’t Mgmt.,
Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013) (“Due to the urgency of
obtaining a preliminary injunction at a point when there has been limited
factual development, the rules of evidence do not apply strictly to
preliminary injunction proceedings.”).

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AMERICANS FOR PROSPERITY V. HARRIS 10
forms for nonpublic use. See Brown v. Socialist Workers ’74
Campaign Comm. (Ohio), 459 U.S. 87, 99–101 (1982)
(detailing “a past history of government harassment,”
including “massive” FBI surveillance and a concerted effort
to interfere with an organization’s political activities); Ctr. for
Competitive Politics, 784 F.3d at 1316. Americans for
Prosperity Foundation has offered no evidence that it has
been subjected to government harassment or hostility. It
relies on an October 24, 2013 press release from the
California Fair Political Practices Commission that, in
announcing a settlement with two nonprofit organizations
accused of violating campaign finance laws, inaccurately
characterized those organizations as part of Charles and
David Koch’s network of “dark money” nonprofit
corporations. This error was later corrected, but Americans
for Prosperity Foundation argues that because Charles and
David Koch are closely associated with the Foundation, the
release demonstrates the type of past government harassment
sufficient to support its challenge. This single, isolated
incident, directed not against the Foundation but against
prominent public figures, falls far short of “suggest[ing] that
[government] hostility toward” Americans for Prosperity
Foundation “is ingrained and likely to continue.” Brown,
459 U.S. at 101.
Similarly, Thomas More Law Center has produced no
evidence of state harassment or targeting beyond its bare and
unsubstantiated allegation that enforcement of the Schedule
B disclosure requirement is politically motivated. The district
court concluded the Center raised serious questions on the
merits by “pos[ing] questions . . . whether the groups [the
Attorney General] is demanding donor information from are
being particularly selected for such inquiries.” But here, as
in Center for Competitive Politics, there is “no indication in

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AMERICANS FOR PROSPERITY V. HARRIS 11
the record that the Attorney General’s disclosure requirement
was adopted or is enforced in order to harass members of the
registry in general or [the plaintiffs] in particular.” Ctr. for
Competitive Politics, 784 F.3d at 1313.
Nor have the plaintiffs shown a “reasonable probability,”
id. at 1317, of harassment by members of the public due to
disclosure to the Attorney General for nonpublic use. The
plaintiffs’ allegations that technical failures or cybersecurity
breaches are likely to lead to inadvertent public disclosure of
their Schedule B forms are too speculative to support
issuance of an injunction.
The district court also erred in concluding an injunction
was warranted because there were serious questions about the
Attorney General’s right to collect Schedule B information as
to non-California donors. The district court’s conclusion that
the Attorney General’s demand for national donor
information may be more intrusive than necessary does not
raise serious questions because “exacting scrutiny is not a
least-restrictive-means test.” Chula Vista Citizens for Jobs &
Fair Competition v. Norris, 782 F.3d 520, 541 (9th Cir. 2015)
(en banc). The government “need only ensure that its means
are substantially related” to a sufficiently important interest.
Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1013
(9th Cir. 2010); see also Ctr. for Competitive Politics,
784 F.3d at 1312.
In sum, the plaintiffs have failed to demonstrate any
actual burden on First Amendment rights flowing from the
Attorney General’s demand for and collection of their
Schedule B forms for nonpublic use. As we have held,
compelled nonpublic disclosure of Schedule B forms to the
Attorney General is not itself First Amendment injury. See

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AMERICANS FOR PROSPERITY V. HARRIS 12
Ctr. for Competitive Politics, 784 F.3d at 1314. Without
showing actual harm, the plaintiffs cannot enjoin the Attorney
General from enforcing the disclosure requirement.4 See id.
B. The District Court Did Not Abuse its Discretion by
Enjoining Public Disclosure of the Plaintiffs’
Schedule B Forms.
The plaintiffs have raised serious questions, however, as
to whether Schedule B forms collected by the state could be
available for public inspection under California law,
notwithstanding the Attorney General’s good faith policy to
the contrary. We are not convinced the evidence offered by
either plaintiff sufficiently establishes that such public
disclosure would result in First Amendment harm.
Nevertheless, under our narrow and deferential review at this
stage in the proceedings, and given the Attorney General’s
own position that Schedule B forms should not be publicly
disclosed, we need not hold that the district court abused its
discretion to the extent it preliminarily enjoined public
disclosure pending trial.
This court’s earlier dictum that “it appears doubtful” the
Attorney General would be compelled to make Schedule B
information publicly available focused on the California
Public Records Act (CPRA). See Ctr. for Competitive
Politics, 784 F.3d at 1316 n.9. CPRA allows the public to
4 Even had the plaintiffs shown some First Amendment harm from the
disclosure requirement, they would not necessarily have raised serious
questions entitling them to an injunction. Under exacting scrutiny, they
would have to demonstrate serious questions as to whether the state’s
“compelling interest” in enforcing the law reflected the “actual burden”
on their First Amendment rights. Ctr. for Competitive Politics, 784 F.3d
at 1312, 1314.

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AMERICANS FOR PROSPERITY V. HARRIS 13
request certain records except those, as relevant here, “the
disclosure of which is exempted or prohibited pursuant to
federal or state law.” See Cal. Gov’t Code § 6254(k). The
Attorney General argues that because 26 U.S.C. § 6103 and
26 U.S.C. § 6104 prevent the IRS from disclosing Schedule
B forms to the public, she too is prohibited from disclosing
Schedule B forms “pursuant to federal . . . law.” But § 6103
prevents disclosure of return information filed directly with
the IRS; it does not prevent state officials from publicly
disclosing return information collected by the state directly
from taxpayers. See Stokwitz v. United States, 831 F.2d 893,
894 (9th Cir. 1987). The same is likely true of § 6104. See
Ctr. for Competitive Politics, 784 F.3d at 1319. It is therefore
unclear whether the Attorney General could avoid disclosing
Schedule B forms under Government Code § 6254(k) based
on § 6103 or § 6104.
Even if the Attorney General is not required to publicly
disclose Schedule B forms under CPRA, Center for
Competitive Politics did not address the independent public
inspection requirement under the Charitable Purposes Act,
which provides that filings in the Registry of Charitable
Trusts “shall be open to public inspection” subject to
“reasonable rules and regulations adopted by the Attorney
General.” Cal. Gov’t Code § 12590 (emphasis added).
Although the Attorney General has proposed a regulation
limiting public inspection of Schedule B forms, no such rule
or regulation is currently in force. The Charitable Purposes
Act might require public inspection under these
circumstances.
The plaintiffs therefore have raised serious questions as
to whether the Attorney General’s current policy actually
prevents public disclosure. Because the Attorney General

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AMERICANS FOR PROSPERITY V. HARRIS 14
agrees with the plaintiffs that Schedule B information should
not be publicly disclosed, and because she is in the process of
promulgating a regulation prohibiting such public disclosure,
a preliminary injunction prohibiting public disclosure of
donor information promotes, rather than undermines, the
state’s policy. It serves the interests of the state by allowing
it to resist efforts to compel public disclosure pending formal
adoption of a regulation to accomplish the plaintiffs’ and the
state’s shared objective of preventing disclosure to the public.
As a preliminary injunction of this nature would further the
state’s public policy as well as allay the concerns of the
plaintiffs, there is no harm in allowing that aspect of the
injunction that serves to prevent public disclosure to remain
in effect on a temporary basis.
In the absence of harm to the state, the plaintiffs or the
public from a modified injunction, we decline to use our
appellate authority to hold that the district court abused its
discretion with respect to that part of the injunction that helps
enforce the state’s public policy.
III.
An injunction properly tailored to the plaintiffs’ concerns
would address the risk of public disclosure by enjoining the
Attorney General and her agents from making Schedule B
information public, pending a decision on the merits of the
plaintiffs’ as-applied challenges. The plaintiffs have not,
however, shown they are entitled to an injunction preventing
the Attorney General from demanding their Schedule B
forms, enforcing that demand, and using the forms to enforce
California law.

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AMERICANS FOR PROSPERITY V. HARRIS 15
We therefore vacate the district court’s orders granting
preliminary injunctions and instruct the district court to enter
new orders preliminarily enjoining the Attorney General only
from making Schedule B information public. The injunctions
may not preclude the Attorney General from obtaining and
using Schedule B forms for enforcement purposes. The
district court shall permit the parties to address whether the
injunctions should include exceptions to the bar against
public disclosure, such as those enumerated in the Attorney
General’s proposed regulation. Each party shall bear its own
costs on appeal.
ORDERS VACATED.

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