On April 21, 2016, following a bench trial, Judge Manuel Real in the Central District of California permanently enjoined California Attorney General Kamala Harris from requiring that Quinn Emanuel client, the Americans for Prosperity Foundation, a 501(c)(3) charitable organization, disclose a list of the names and addresses of its major donors. This marks an important First Amendment victory.
To protect its donors from threats, harassment, and violence, the Foundation keeps the identities of its donors highly confidential. In October 2014, however, the Attorney General told the Foundation that unless it turned over its donor list to her within 30 days, it would face fines and lose the ability to fundraise in California.
In stepped Quinn Emanuel. The firm filed a complaint and motion for a preliminary injunction, alleging that the Attorney General’s demand violated the First Amendment. This looked to be an uphill fight as, just a few months earlier, a different federal district court in California had denied a preliminary injunction in a case brought by another charity, the Center for Competitive Politics (“CCP”), that likewise challenged the Attorney General’s demand for its donor list on First Amendment grounds.
However, by emphasizing the compelling facts and 11 record unique to the case, Quinn Emanuel was able to distinguish the CCP case and secure a preliminary injunction for its client in February 2015. Trial commenced in February 2016. By then, Quinn Emanuel had amassed a factual record that thoroughly undercut every defense the Attorney General could muster.
The Attorney General’s primary justification was that collecting the donor lists of every charity in her state helped her office stamp out fraud and abuse. Yet, the Attorney General’s witnesses conceded in cross-examination that they almost never used these donor lists, and even in the few instances where they had, they could obtain the relevant information through other means less invasive of First Amendment interests. This led the Court to find: “The record before the Court lacks even a single, concrete instance in which pre-investigation collection of a [donor list] did anything to advance the Attorney General’s investigative, regulatory or enforcement efforts.”
Notwithstanding the Attorney General’s repeated promises that she would keep confidential all the donor lists she was collecting, Quinn Emanuel had discovered that she had, in fact, published more than 1750 donor lists on her public website. These lists revealed the names and addresses of donors for hundreds of charities—including controversial charities, such as Planned Parenthood, that had good reason to protect donors’ identities. The Court found that the Attorney General’s longstanding lackadaisical approach to confidentiality “obviously and profoundly risks disclosure” of any donor list the Foundation might submit.
Against this record of government incompetence, witnesses for the Foundation attested to the personal threats and harassment they have encountered because of their public affiliation with the Foundation. Having heard their testimony, the Court was “not prepared to wait until [a Foundation] opponent carries out one of the numerous death threats made against its members” before granting permanent relief.
Based on these facts, the Court found a constitutional violation, granted the firm’s client relief, and held that “[t]he Attorney General’s requirement that [the Foundation] submit its [donor list] chills the exercise of its donor[s’] First Amendment freedoms to speak anonymously and to engage in expressive association. Among other things, plaintiffs have demonstrated that the . . .disclosure requirement places donors in fear of exercising their First Amendment right to support [the Foundation’s] expressive activity; the effect then is to diminish the amount of expressive and associational activity by [the Foundation].” Now the fight will move up to the Ninth Circuit, to which the Attorney General has appealed.