Courthouse Steps Decision Webinar: Americans for Prosperity v. Bonta

Free Speech & Election Law Practice Group Teleforum

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On July 1, 2021, the Supreme Court issued its decision in Americans for Prosperity Foundation v. Bonta, Attorney General of California.  California state law required charitable organizations soliciting donors in the state to register with the California Attorney General.  To file, charities had to submit their IRS Form 990 along with all Schedules including Schedule B which discloses donor names and information.

Two conservative organizations refused to submit Schedule B and ultimately sued arguing that the compelled disclosure of their donor lists violated their First Amendment right to freedom of association.  Disclosure would make their donors less likely to donate or associate with the charities of their choice.

The case went through multiple appeals to the Ninth Circuit finally arriving in the Supreme Court, which cited NAACP v. Alabama, clarified the applicable exacting scrutiny standard, and held California’s Schedule B disclosure requirement facially unconstitutional.

Joining us to discuss is Mr. Erik Jaffe, a Partner at Schaerr Jaffe LLP and the author of an amicus brief in support of the petitioners.

Featuring:

  • Erik Jaffe, Partner, Schaerr Jaffe LLP 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's virtual event. This afternoon, July 6, we discussed the Supreme Court's decision in Americans for Prosperity v. Bonta, Attorney General of the state of California. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions and opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Mr. Erik Jaffe. Erik is a partner at Schaerr/Jaffe LLP, where he focuses his practice on appellate litigation on a wide range of First Amendment issues. Erik is also the Chairman of The Federalist Society's Free Speech & Election Law Practice Group Executive Committee.

 

      After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along. If you have a question, please enter it and you can actually enter it at any time at the bottom of the screen in the chat or the Q&A function. So again, if you have a question, please enter it in either one of those features.

 

      With that, thank you for being with us today. Erik, the floor is yours.

 

Erik Jaffe:  Thank you. Thank you. I'd like to participate once again about this, I think, fairly important case on First Amendment rights, particularly the freedom of association, and particularly the anonymous -- freedom of anonymous association. So, in Americans for Prosperity v. Bonta, and Thomas More Law Society v. Bonta, the Court held by a -- mostly by a 6-3, some claim a 5-4 decision that California's policy of the department of -- California Department of Justice's policy of requiring disclosure of the charitable donors to non-profits that solicit donations in California violated the First Amendment because it was not narrowly tailored to serve the State's claimed interest, and because it imposed a burden on organizations and donors in general.

 

      This decision was interesting and a little bit fractured for a variety of reasons. In the first instance, it was fractured on what standard of scrutiny should apply. So, Chief Justice Roberts -- writing for the majority for most of the time -- had one section, Part II-B, joined only by himself and two other justices, so writing only for three justices, that said exacting scrutiny applied.

 

      Now, for those of you who follow First Amendment law, there's a whole bunch of different tiers of scrutiny. There's strict scrutiny, which is supposedly really serious. There's exacting scrutiny, which is sort of, kind of, mostly serious except when we don't want it to be. And then, there's intermediate scrutiny, which we apply to things like commercial speech, which is supposed to be less exacting and less significant, but in fact, as a practical matter, often turns out to be more exacting than exacting scrutiny.

 

      It just sort of depends again on what you had for breakfast and whether you liked the speech involved. And then there's sort of normal, rational basis scrutiny that applies when there's no real First Amendment burden at all. So it's not really any scrutiny at all, it's just sort of baseline, due process scrutiny.

 

      But here, Chief Justice Roberts and two other justices held that their sort of high-middle standard of exacting scrutiny applied, and that exacting scrutiny required, first of all, that there be a means-end fit at the front end between the breadth of the burden you impose -- or the breadth of your restriction, forget the burden -- the breadth of your restriction and the interest that you claim to be serving. And then, after that, we would decide whether or not the burden you imposed upon free speech -- how that was relative to the benefits that you claim, the strength of the benefits versus the strength of the burdens.

 

      And that was interesting, and it set down a nice rule that said means-end comes first, and then weighing the benefits versus the burdens comes second. And I think that's very helpful, to the extent that that gets applied going forward, but, like I said, only three justices joined that. The other three justices who concurred in the result and in many parts of the rest of the opinion, however, would have applied even stricter scrutiny. They would have applied either strict scrutiny or, potentially, exacting scrutiny, in some cases and strict in others.

 

      So Justice Thomas, who joined the results, would have applied strict scrutiny full out and so this exacting scrutiny standard is the minimum he would have applied. And, obviously, if it failed this, it failed strict scrutiny.

 

      Justices Alito and Gorsuch wouldn't have decided the question of which level of scrutiny. They might have applied exacting scrutiny, but they weren't ready to say that yet. But they were confident with the Court's majority that this standard would certainly fail the exacting scrutiny level, and would then definitely fail the strict scrutiny level, so they found no need to reach the question of what level of scrutiny. So again, Chief Justice Roberts' standards for exacting scrutiny at least set the minimum for six different justices, and some justices would have gone further.

 

      It doesn't set the maximum level of scrutiny, but it certainly sets the minimum level of scrutiny. And for folks who like the First Amendment, care about the First Amendment, and think these disclosure requirements are burdensome and often targeted and often disingenuous — like me — this is a good thing. These are good tests.

 

      Roberts, however, rejects strict scrutiny, and that part of his opinion does not have a majority. So that part of the opinion can't be considered a holding, though I think one could consider it a holding to say, at a minimum, there's exact scrutiny.

 

      Then, moving on to the application of exacting scrutiny, that was joined by six justices in general. All six justices agreed that if exacting scrutiny applied and not something more aggressive, that certainly this would fail, and that was a good, interesting analysis. They talk about exacting scrutiny, says it has to be narrowly tailored -- even if not the least restrictive means, that substantial relationship to the goal that you have in mind was not enough, and that fit matters.

 

      And those are all welcome things for people who litigate in this area from the First Amendment side — that fit matters — because most courts, and certainly the Ninth Circuit would sort of wave their hand and say, "It's close enough for government work," and they would never really test the fit between the means and the ends of some disclosure requirement, much less many other types of requirement.

 

      So that was sort of fun. That was sort of interesting. It was nice to see the Court, a six-person majority of the Court, sort of say that fit matters. And, while there was some debate over how this fit in with precedent, and some debate between the dissent and the majority over whether this was an expansion or a non-faithful application of earlier precedent, the answer at the end of the day is, earlier precedent was not exactly a model of clarity. I think Justice Sotomayor called it nuanced. I would call it hopelessly messed up. That's nuanced in the sense of, how do I feel this morning, nuanced. Did I have cabbage for breakfast, and I'm feeling a little off, nuanced.

 

      But anyway, it's nice to have a brighter line drawn that tells you what exacting scrutiny applies, pretty much across the board in any kind of challenge to disclosure requirements. And that's nice.

 

      So there you go on the application. Then we get to Part III of his decision, which is sort of the -- he finds that it's not narrowly tailored. He finds that there's a dramatic mismatch between the interest claimed by California and the disclosure requirement they used to achieve that interest. And then Chief Justice Roberts goes on to find that this analysis applies to the rule — it's not a statute, it's a DOJ rule, or internal policy — that the policy, on its face, violates the First Amendment because of this dramatic mismatch across the board.

 

      And that was a facial holding that I think many people didn't expect. I certainly didn't expect it. I thought they might stop at an as-applied challenge to these petitioners, but in fact, they went further and that holding had the concurrence of five justices. Justice Thomas did not join that part of the decision that this should be struck down on its face, for reasons that I'll get into in a minute, but he thought that went too far and he would have limited it just to an as-applied decision.

 

      The three dissenters wouldn't have even given the as-applied decision, though they claim to be more sympathetic to that -- though that claim is hard to reconcile with their actual writings. But at least it's sort of curious how, had there been enough votes for an as-applied ruling, I wonder whether the dissenters would have joined in that ruling just to get a solid majority and a limitation on facial challenges.

 

      But, given that there weren't enough to get there — at most there were only four to reject the facial challenge — perhaps the dissenters just felt the need to fully dissent, rather than only dissent as to the part that Justice Thomas dissented to, which is Part III-B, or one of parts Justice Thomas dissented to.

 

      I personally think that the five-justice majority on the facial challenge was right. I think that the burden of requiring disclosure of donations is, on its face, burdensome of First Amendment rights. I personally view their analysis just as, "Just because some donors don't care, it doesn't make a difference, because those donors aren't anonymous, and so, the state has plenty of access to those donors, and it doesn't need to require the disclosure of the Schedule Bs that it was demanding."

 

      So I found this whole debate about, "Well, lots of people are happy to say that they donated to X charity or Y charity," to be somewhat of a misplaced debate, in that, well, those donors aren't private in the first place, and anybody could find their donations just by looking it up on the website. There's no reason to worry about that. It is obviously just the donors who are anonymous. So, of course, only anonymous donors care about having their anonymity breached, and that is fine.

 

      There was also some further debate in connection with this about whether or not -- whether or not one should require proof at the front end that people would be deterred, proof at the front end that lots of donors would face a risk. The individual charities involved in these cases; the Thomas More Law Society, and The Americans for Prosperity Foundation -- they in fact had proof that their employees, that their donors, had gotten harassed and threatened. There was plenty of proof of that.

 

      And to my mind, that proof was enough that anybody seeking anonymity to any kind of group that even plausibly could trigger people to be pissed, or plausibly could get attacks on who those donors are, had ample reason to want anonymity on its face. The dissent would have taken a different view.

                                                                 

      But anyway, Justice Roberts ultimately analyzes all of this, finds that the States' interests were burdensome just across the board, that the States' means were burdensome across the board, that their interests were ultimately disingenuous, that they never actually used these mass-produced Schedule Bs for law enforcement purposes in any meaningful situation, and that they're only doing it for either administration on the off chance that at some future point they might need something.

 

      And, of course, it's worth remembering that the State can always get these through a targeted request for disclosure. We're just talking about en masse disclosure for people who were not under suspicion at all, and the State had no other basis other than creating a pool of donor information that it could go fishing in whenever it decided it wanted to. And, of course, that kind of stuff is suspect at best, but there you have it.

 

      Anyway, so Chief Justice Roberts finds all of these factors, finds all of these threats, and says, "At the end of the day, we don't have to prove that every charity would be affected or every donor would be affected, just that there was a substantial number of unconstitutional applications." And that was enough for an overbreadth challenge, and that this statute was overbroad in the means that it sought to use to police charities, so to speak, and that wasn't even sort of true.

 

      So, the overbreadth part is where Justice Thomas gets off the boat and says, "I'm not on board with overbreadth as a means of facial invalidation, even though there's a decently long history in the Fourth Amendment context of using overbreadth challenges to strike down laws on their face." Justice Thomas, in his decision, wouldn't have gone that far. He would have stopped at the as-applied challenge. And I'll get to his reasoning in a few moments.

 

      But I actually think this is consistent with past law. I actually think overbreadth doctrine is good doctrine and has a substantial basis, if not squarely in First Amendment text, certainly in First Amendment history, and definitely in due process. And we'll talk about how due process and the First Amendment have been sort of rolled into each other in a lot of First Amendment cases, and I think that's really where this comes from. And that's why I disagree with Justice Thomas to some degree.

 

      Anyway, given that there's a substantial number of unconstitutional applications and the risk of chilling in lots of other situations, Chief Justice Roberts would have struck down the entire thing. He spent some time rejecting the notion that it's the plaintiff's burden of proof in every instance to show that they would have been chilled and their donors have been scared away, and therefore you can't have a facial challenge. He points out that the individual burdens on donors only apply after you have upheld a statute on its face, not before you have resolved the facial challenge, and I think he is exactly right.

 

      If you look at cases like Buckley, I think he is exactly right. Buckley rejected a facial challenge because there was a means-ends fit, and then said, "But, we'll make an exception if you can prove that you're uniquely burdened." I think it's only in those exception cases that the burden rests with the charity rather than the burden being on the State to prove that their interest is served in a meaningful way and to prove that they're narrowly tailored.

 

      So I very much like that part of his opinion. I like the fact that he clarifies the burdens at the different stages of challenges, facial versus as-applied, and I think he, quite frankly, is exactly right.

 

      So, moving on to the concurrences, Justice Thomas concurred. He would have taken a different approach in three different ways. One, he would have applied strict scrutiny, as I mentioned before. But at least that is -- he just would have gone further than the majority, but I gather recognized that the majority's exacting scrutiny standard is the minimum and you just would have had strict scrutiny, which would have been much more easy to strike down individual applications of these kinds of disclosure requirements.

 

      Second, he rejects overbreadth doctrine as a general matter. He thinks that the Court has no power at all to enjoin lawful applications of a statute just because other applications would be unlawful, and he thinks it raises standing problems. The notion of you as an individual plaintiff who the law could be applied to, theoretically, raising the concerns of other people to whom the law could not be applied to. And I understand those concerns and I think those concerns are interesting, but I disagree that they're standing issues. There's no question that you are burdened. And the question is, just because they could have written a better law that would have caught you but not other people, doesn’t mean that you aren't burdened by this law.

 

      And I find, actually, that overbreadth doctrine is actually just a special case application of things like void for vagueness and due process and fair notice concerns, where a statute that lacks clarity and specificity just because you could have written a better statute and therefore you could have been caught by that better statute if there wasn't such a statute, or a policy in this case. Then you can't get caught by a vague statute that could have been done better. I find those to be special applications of due process. I generally think that things like due process and equal protection apply with heightened rigor when they interact with another constitutional consideration such as say, race discrimination or First Amendment burdens or Second Amendment burdens for that matter.

 

      I think that when you have the intersection of due process in the burdening of some other constitutional -- substantive constitutional right, those procedural due process concerns like vagueness, like fair warning, all take on a heightened rigor, and that's what I think of as overbreadth. And I think the Court was exactly right to do this, and I think there's standing for those things. And I don't think an application of an overbroad law to somebody who could have been caught by a properly written law is actually a lawful application at all. It's a theoretically lawful application of some other law that wasn't written.

 

      And I think there are all kinds of related problems in the due process world, not the least of which is the improper delegation of authority to law enforcement by writing a vague statute. So you can imagine a statute that says, "Well, go forth and stop all crime. Anything that would be bad, feel free to stop." And that statute, on its face, is grossly overbroad, improperly delegates, doesn't give any fair warning. You have no idea who that would apply to, even though I'm a murderer and you're using it to stop me.

 

      That would be my view. So, I depart from Justice Thomas despite having tremendous respect for his concern and obviously tremendous agreement with him on many other issues, but just not this one.

     

      And his final one is he would have rejected facial challenges to statutes at all on similar grounds to the overbreadth concern, viewing it as an advisory opinion, suggesting that even if you suspect that this result will recur over and over and over again in many other applications, even in all other applications of laws, he would have said, "Nope. You just have to apply it in those future things and the precedent will apply and that will be that."

 

      And I, once again, think that that ignores some of the due process concerns, ignores the delegation concerns and, I think, underweights the concern that government officials can go forth and then chase you down. Even though they know that in a virtually analogous situation it was unconstitutional, they can go after you and force you to relitigate it again and again and again. It just encourages government obstructionism, which I think is offensive, I think is a violation of due process, and I think unduly burdens people, particularly in a world where we have qualified immunity.

 

      If we didn't have qualified immunity, we could actually go after those prosecutors for prosecuting terrible, unconstitutional claims against people just because you don't have a facial challenge anymore. Well, yeah, then that might deter people from bringing sort of BS things just because there wasn't a facial strike down. It might deter this sort of constant resistance you get to certain Supreme Court rulings by places like — not shockingly — California, which has shown shockingly little respect for the Constitution, or at least for the Constitution as applied by the U.S. Supreme Court.

 

      When it disagrees with the Supreme Court, California — and particularly the Ninth Circuit, but lots of California courts — just go their own way, and figure, you know, "Too bad, so sad. The Supreme Court can't get around to reversing us all the time, so let's just do what we want." And I think Justice Thomas's argument about facial challenges, getting rid of facial challenges, would just encourage that kind of behavior even more and would make it almost impossible to enforce against that kind of obstructionism.

 

      So, once again, I disagree with him on that, but he makes interesting points about advisory opinions. But I would just find those laws violate delegation concerns, equal protection concerns, due process concerns, even though they're done in the context of the First Amendment.

 

      The other concurrence, by Justice Alito, joined by Justice Gorsuch, just would have sort of deferred the question of strict versus exacting scrutiny like I just mentioned above, but, finding that exacting scrutiny is more than enough to strike this down, felt that there was no need to say that that's the standard for all time. And they would have left open the question about what standard of scrutiny applies I n any given instance, including in this type of situation and others.

      But that, again, at least sets a minimum basis.

 

      Finally, the dissent by Justice Sotomayor for herself and Justice Breyer and Justice Kagan, I think would have sort of said, "This is fine across the board. Any concern with public disclosure that happened in the past because the DOJ — the California DOJ — was lax and negligent and irresponsible and incompetent, has been cured by their promises to do better in the future. And, so, no need to worry about the public attacking you, it's just the DOJ that gets your information now."

 

      I think she would have discounted any risk of danger from the DOJ itself retaliating against you, evidence of which was in the record, though not relied upon by the majority opinion in this case, so at least there's a fair debate about that.

 

      It's not like I disagree with her that the majority didn't rely on that. But I do disagree with her that there wasn't evidence that the California DOJ took this evidence and used it for their own nefarious purposes, not just simply by leaking it to outsiders who would harass people, but that California itself has a long history of harassing and disclosing and breaking the law regarding donor information like this, and in past examples and past situations, particularly in defense of marriage situations and stuff like that.

 

      So, she also would have sort of rejected the facial and validity challenges that the majority applied, for reasons largely different than Justice Thomas. She thinks that there is an individual plaintiff burden of proof in every case to show that not only would they be burdened, but that all other charities would be burdened and that lots of donors would be burdened and would not contribute.

 

      And she would put that almost impossible burden of proof onto plaintiffs, effectively dooming any facial challenge to disclosure requirements, because even if you could show it for you and fellow travelers of your political stripe or social stripe, you probably couldn't show it for everybody. You couldn't show it for the opera house. You couldn't show it for the Feed the Hungry charities. You couldn't show it for all those other people. And so, she would never, by my reading of this, allow a facial challenge at all. She would only allow as-applied challenges, and she would always put the burden of proof — a fairly substantial burden of proof — on plaintiffs.

 

      I thoroughly disagree with that. There, I suppose, is a non-frivolous debate about whether one should read past cases as requiring that. I actually think the better reading of past cases is that they require that only after upholding something on a facial challenge, and that the burden of proof at the facial stage is on the State to prove its interests and to prove that its interests are substantially served by the means that it's chosen, and that those means do not have a grotesquely unrealistic fit, that they don't catch a tiny bit of things by covering a million prophylactic situations.

 

      But there's grounds for debate about what past cases said. Like I said, past cases -- she describes them generously as nuanced. I describe them ungenerously as a mess. And so, I'm glad to have some clarity, even though it's not in the direction she would have preferred. That's just a disagreement, but she has a point about some of the past cases; I think it's a fair point.

 

      Some of the other aspects of the dissent are just some different examples and different sort of re-debating where Justice Roberts is relitigating. I think she looks at the record and sort of says, "Look, there are lots of reasons why California might want this." I just thoroughly disagree with the dissent on that point. I don't think California's claimed reasons for wanting all this information in a massive pool of available data for them to dip their toe in any time they see the need is actually true. As a factual matter, it's not true. As a policy matter it's not true. I think that they're incredibly disingenuous. And I think, on the record below, California couldn't actually back this up to save their lives.

 

      So, I'm a little disappointed that she sort of comes up with this wildly speculative grounds for California for needing this. They need all this information to avoid self-dealing. That's just silly. You don't need Schedule B information to check for self-dealing. It doesn't really show you that. That you need this information to avoid diversion of money -- which is almost impossible to figure out how Schedule B information would help you detect diversion of money, which is not listed on Schedule B. It's not how you spent it, it's who gave it.

 

      But you know how much money the charities had in general, you just don't know necessarily who gave it to them. But if they were diverting it to go pay for trips to Tahiti, that's a different schedule. That's a different spending problem. It's not a contribution problem. You certainly don't need to know who gave the money. Comparisons across schedules – there wasn't a single example of that, as far as I could tell, where they hadn't gotten Schedule B at a later separate request, once they had already suspected a particular charity of monkeying around.

 

      So, I was a little disappointed with the factual debate that seemed to sort of take California at its word without putting them to any level of proof at all.

 

      The last thing I'll say is that what I like about the majority opinion — and even if it had gone stronger — and what I dislike about the dissenting view on this, is that it would encourage courts like the Ninth Circuit to simply play monkey games with the facts, with the burdens of proof, like they do so routinely in First Amendment cases, in Second Amendment cases, and in any case where they don't seem to like the right at issue, but would agree with it.

 

      And they have a terrible, terrible track record of doing that, particularly in Second Amendment cases and certainly in campaign-related cases, and certainly in donor-disclosure cases where they just massage the record and manipulate the record, and just accept the most, the thinnest of justifications from the State to uphold what seems to me to be clear constitutional burdens.

 

      So it's nice that that hopefully won't happen as much in the future. It would be nice to see sort of real exacting scrutiny cross-applied to other constitutional rights and to the consideration of other constitutional rights, and hopefully this could be one step in that direction. But it's nice to rein in this sort of policy of obstruction from certain lower courts who just resist constitutional rights that they don't like, and so use this balancing, sliding scale scrutiny to avoid actually giving any weight at all to expressed or implied constitutional rights where it goes.

 

      And I think many of you could probably imagine constitutional rights that you don't like, where you're happy that courts do that. And I would say you shouldn't be so happy about that either, that you might not agree with the existence of a constitutional right, but we should all agree that once we have constitutional rights, we should apply real scrutiny, not fake scrutiny, and we shouldn't leave it up to judges to pick and choose which rights and which plaintiffs that they actually happen to like or dislike for helping out with the malleable case-by-case, see how it goes, kinds of standards.

 

      So, that's my spiel on this case. I'm glad it came out the way it did. I suppose I should have pointed out earlier that I had a brief in this case on behalf of a couple of different clients. One was a group called Protect the First, which is a First Amendment-oriented group, another was Pacific Research Institute. They were the two amici on an amicus brief we filed. And so, obviously, we had made the point that governments themselves are more than capable of retaliating against donors they can't stand, or donors to their political enemies, and that public disclosure is not the only way donors are chilled and hurt.

 

      Anyway, so with that, I think hopefully we'll open it to some questions, and I'm happy to discuss some of the nuances or some of -- if you disagree with some of my crazy views, that's fine too.

 

Evelyn Hildebrand:  Great. Thank you so much for that. That was very interesting. I wanted to ask if you see any likely next steps for California since California's had, as you've mentioned, a penchant for going after organizations that they disagree with politically. What step do you think they're going to take now?

 

Erik Jaffe:  I think they will enact a more targeted disclosure regime, but that the targeting will not be terribly narrow. And so, they'll find something to sort of help with the means-end fit. And my guess is, they will minimize going after places that obviously don't care, but they'll certainly go after people they don't like. They will focus more on political groups, groups that they somehow are suspicious of, that they think are pass-through conduits for other folks to speak.

 

      I'm sure you will see this come closer and closer to sort of campaign-related or public policy-influencing related speech. And they will assert an added interest in sort of making sure that people are not misleadingly claiming to be an independent charity, but have big donors who are sort of seen across ten charities, something like that.

 

      If I had to guess, that's where California goes, but who knows. Maybe they pass a statute and add a bunch of findings that they think gets them legislative weight, rather than just having this be the DOJ itself. But it's hard to imagine California actually giving up and saying, "Okay, we'll stop. We'll stop scaring off people we don't like." Which is what they -- I think was the self-evident policy behind this DOJ action, was let's scare all the folks we don't like by collecting all their donor information and auditing their donors occasionally and threatening to audit their donors and making everybody worry that we're going to audit their donors.

 

      I don't see any plausible story that that wasn't what was going on. But I'm not sure that there's a definitive proof of that, but having litigated against California in lots of situations, let's just say they don't get the benefit of the doubt.

 

Evelyn Hildebrand:  The instinct of a litigator -- I think that you have the prerogative to make that determination. Okay, next question is from Jeffrey Wood. He asks, "Are there any sword as well as shield application of this, when inappropriate information collection and/or disclosures have occurred? So, for example, federal disclosure of privileged tax information.

 

Erik Jaffe:  Well, I mean, in the federal context, yes. Well, there's certainly sword applications. It's not about this decision. There's statutes that talk about it being a felony to improperly disclose information. I suppose if it were negligently disclosed, it would be harder to go after people. And maybe it's hard to prove that it was on purpose versus negligent. But there are some serious federal statutes that go to this and, at least according to Justice Sotomayor's opinion, there are some California rules that talk about the consequences for disclosure, though it looked like the consequences were discipline, not actual criminal punishment. So you get a nasty note saying. "Shame on you. You got caught." I don't think it's actually, "Shame on you. You did it." I just think it's "Shame on you, you got caught."

 

      But, be that as it may, perhaps California adopts a more IRS-like regime, where they at least threaten some penalties for improper disclosure. But remember, disclosure to the public is not the only way that governments use information, and for those out there who -- many of you out there may agree with me that California is quite likely to abuse it, but for those of you who are smugly thinking that, I would point out that there are lots of states in the other direction that might do this against, say, the NAACP or the ACLU, and might go after their donors.

 

      It's not like this is a one-way ratchet. We have states that span the political spectrum and consider different groups their enemies. So I wouldn't be too smug about it just being California. There are lots of other places too.

 

Evelyn Hildebrand:  That feeds directly into the next question actually from Robert Fitzpatrick. He asks, "Will we see disclosure laws regarding so-called domestic terrorist groups?"

 

Erik Jaffe:  I don't think it'll need disclosure laws. I think if you have a group that is smelling and looking like a domestic terrorist group, that there will be a targeted request for disclosure on who is funding that, and where's the money going, and how is the money being spent. And this case doesn't talk about targeted requests for disclosure, where you had some probable cause or reasonable suspicion to believe something weird is going on. I mean, that's arguably more of a Fourth Amendment problem or sort of an interaction between Fourth Amendment and First Amendment problems.

 

      But, I think once you get into domestic terrorist groups, you are in fact rather more narrowly tailored. And I suppose if you suddenly decided that anybody who supports the Republican Party is a domestic terrorist group, well yes, that would be overbroad. But if you pick and choose like the Proud Boys or something like that, and you say, "I have reason to believe because of X, Y, and Z," I think you meet the probable cause standard and you're in, and you get to demand disclosure and you get to search, and you get to probably wiretap them for that matter. So I wouldn't worry so much about disclosure there, when the probable cause standard, which is not unduly burdensome for law enforcement, makes much more targeted means available.

 

Evelyn Hildebrand:  Great. Jeffrey Wood asks -- I think it's a follow-on question from his first question. He asks, "Private right of action if the DOJ won't act. So, for example, disclosure." Do you have a comment or a thought there?

 

Erik Jaffe:  No. Does it create a private right of action against State entities who improperly disclose? And I suppose there's a 1983-esque kind of action, where a state entity violates your First Amendment rights by improperly disclosing private information that they have no right to disclose, and so I suppose there's a constitutional claim. I suppose Congress could pass a broader cause of action, but I think that would require a more legislative fix. I'm not a 1983 person, so I can't exactly say in 1983, 1981, whether those kinds of claims would be viable. Somebody on the line or watching probably knows better than I do, but I would think it would require a statutory fix to get there. And maybe you could, but certainly not today. Not in today's "climate" could you pass something like that.

 

Evelyn Hildebrand:  And a follow-up question to that, I think. Jeffery Wood again says, "Qui tam/whistleblower" It's maybe a whistleblower statute.

 

Erik Jaffe:  Yeah, very possibly you can have whistleblowing if it was sort of swept under the rug. Like I said, I'm not an expert on sort of the nuts and bolts of how one hunts this down and squashes these kinds of violations. But look, step one is establishing that it's a violation, and I think this is at least a helpful step one, and then you'd have to go on and on. Whether or not there are legislative fixes is, at the moment at least, beyond the scope of my sort of thinking about it because I'm an appellate guy more than I am a go out and sue them kind of guy.

 

Evelyn Hildebrand:  Great. And now a question from an anonymous attendee, actually -- asks or really comments the worry that targeted disclosures of political dissidents in courts then rubber-stamp fishing expeditions into conservative groups under the guise of an undefined term 'domestic terrorism.'

 

Erik Jaffe:  I don't doubt that governments — state governments, federal government, all governments — go on these kinds of targeted fishing expeditions. It's incredibly hard to make out a claim of prosecutorial targeting and discrimination. It's basically a discrimination claim. I don't doubt for a minute that it happens, but I don't doubt for a minute that it happens in both directions. I think you probably could see this under flip-flopping administrations of different political stripes and flavors and aggressiveness, that they go after the folks that they view as the greatest threats. And a long history of prosecutorial discretion and investigative discretion makes it incredibly hard to make that claim. You have to almost do it retrospectively with a massive showing of a massively disproportional targeting.

 

      So this reminds me of disproportioned impact claims in other discrimination circumstances — in voting circumstances, in racial discrimination circumstances, in gender or age discrimination circumstances — that just showing an imbalance between the results, or they went after only 10 Democratic groups, but 20 Republican groups — those are terrible, hard-to-make claims, and you generally have to show purpose and intent, which I think is right, because at the end of the day, it's just so much speculation to burden, to bog down the world with that.

 

      I think if you had smoking guns and emails that said, "These guys are lobbying against our policies. Let's go after their donors," then sure, you have a great claim of intentional discrimination and intentional violation of the First Amendment. But, short of that, I'm terribly reluctant to create sort of open warfare by the public to say, "Well, it wasn't exactly balanced today. It wasn't exactly this. It wasn't exactly that." And I think all of you should be incredibly reluctant to have the public shanghai the courts into a never-ending war on everything. That's just not helpful.

 

Evelyn Hildebrand:  Great. And now a question from Mr. Robert Fitzpatrick, again on the domestic terrorism concern. "So any group the government says is a domestic terrorist group could be forced to disclose who has given it money?"

 

Erik Jaffe:  So, had you listened to me before, I actually expressly said that that's not the case. So, please listen. What I said was that if they overbroadly define domestic terrorist groups, that would be a problem. If they said anybody who contributes to the Republican Party is a domestic terrorist group, or anybody who supports Republican views, then yes, that would be wildly overbroad and, I imagine, a violation of the First Amendment, because you would be basing it upon their views.

 

      But if it's based on anybody whose members have called for the overthrow of the U.S. government through violent means, you'd probably be a little bit better off. And I suspect that there are plenty of groups that you could find that have done that. And so, no, not anybody who you call a domestic terrorist, but anybody who you have actually a meaningful basis for doing that, which is the Fourth Amendment standard of probable cause.

 

      You would actually need some evidence, and eventually somebody would challenge the search warrant, somebody would challenge the prosecution, somebody would challenge the demand for information in an as-applied way. That would have all of these concerns, and that would build upon this kind of case law.

 

Evelyn Hildebrand:  I think I'm going to take moderator's privilege and ask another question of my own. I was curious about -- if it were not the donor lists that were being requested by a state attorney general, what if it were like the membership list? Does the new standard that's articulated by the Court apply to an anonymous society where the membership lists were being requested by a state attorney general?

 

Erik Jaffe:  I would think membership lists would be protected better than donor lists, because donor lists at least have some tangential relationship to fraud. And so, particularly if you have a targeted donor request, you could worry about there being pass-through donors, there being loans and paybacks. You could worry in individual cases that there is abuse or money-laundering, or any number of things that donors can do theoretically, that you might have some individualized suspicion about.

 

      But for membership lists, they are getting really solidly into the NAACP case, and I think it would be harder to articulate a need for that membership list, and so it's hard to imagine that surviving either as-applied or on its face, because I can't even imagine what the state would claim was the critical thing.

 

      Now, I suppose if it was -- if you had a group that was constantly calling for "Let's overthrow the government. Let's shoot people. Let's kill the vice president. Let's hang him high," well, maybe I want to know who your members are. Sure, I mean, that might get you over the hump at least of probable cause. And I see one of the commenters says, "What about BLM? Is it a terrorist group?" Well, I suppose it would depend. If the answer is, has BLM called for the bombing of federal buildings and the murder of the vice president, etc., etc., maybe. I don't actually think that there's evidence of that.

 

      I certainly think there's evidence that people at protests have committed crimes, and I think that's true of right-wing protests and left-wing protests, and other protests, and I think there are pick-pockets at protests, and there's just an attribution problem of saying that somebody who showed up at a BLM protest and committed a crime means BLM's a terrorist group.

 

      Well, that's a problem, and I wouldn't want to say that about BLM, and I wouldn't want to say that about groups that advocate for no affirmative action, or that protested the election. Just because you showed up at this rally, doesn't mean that you were one of the jackasses calling for bombing a building or killing the vice president or killing anybody.

 

      So, I'm a little leery of sort of guilt by association in the sense that you showed up at a rally, as opposed to guilt by, "I'm a member of the group, and the group's expressed platform is overthrow the United States Government through violent means." Well, then I've voluntarily associated myself with a very express call to violence, and maybe there's some investigation they need if some of that looks like it's imminent.

 

      But for the BLM example, I would think that the government would need a lot more evidence that BLM itself was promoting the violent activities, not merely that hangers-on somehow engaged in violence.

 

Evelyn Hildebrand:  Great. I think that we are drawing close to the end of program this afternoon. Any other final questions from attendees? And, if not, then I will hand the floor over to you Erik, for any closing comments.

 

Erik Jaffe:  Well, my overall closing comment is that I think it's important for people on both sides of the fence to understand that just because you don't like the group targeted today, or just because you do like the group targeted today, doesn't mean that you shouldn't stick with the procedural approach that this applies on both sides of the fence.

 

      And so I see people complaining about BLM, I see -- I hear in the media, people complaining about people who are protesting different government actions here or there. We should move past that. The First Amendment is valuable, not just because it protects you, but because it actually protects your enemies.

 

      Because at the end of the day, you're not going to be in power every day. You're not going to be in power every administration. You're going to be on the bottom side of that boot eventually, and just because you like the using the boot while you're the top, I think that's short-sighted. I think that is exactly what the First Amendment is there for, is to stop such short-sightedness, and we should be a little more concerned with an even-handed application. Even if you don't like BLM, or whoever it is, we should protect the First Amendment.

 

      I think the ACLU of yore got it right, and the fact that the ACLU today is a little hinkier about defending people it doesn't like, doesn't mean that us on the libertarian right or even the right-right, shouldn't like, go back to those principles and actually fight for reasonable principles, rather than take the convenience of complaining about it when they're pissing on us, but ignoring it when we're pissing on them. These are principles worth fighting for. They're principles worth it in the First Amendment context. They're worth it in the Second Amendment context, and, quite frankly, they're worth it in the Fourth Amendment context and in the due process context.

 

      And you may not like a bunch of other rights out there that you think are made up, but fight the predicate, don't fight the application. Don't say, "Well, given that I don’t like the predicate, I'm going to cheat on everything after that." Go back to the predicate where you disagree and fight that. Don't fight the scrutiny levels and the genuineness of applying tiers of scrutiny. That would be the lesson that I would take from this. I think it's a good lesson, and I think if Chief Justice Roberts' version of scrutiny, or even more aggressive version of scrutiny that some of the other justices might prefer, were applied to lots of constitutional rights, we'd all be better off. That's my closing views.

 

Evelyn Hildebrand:  Fantastic. Thank you. Well, on behalf of The Federalist Society, I want to thank our expert, Mr. Erik Jaffe for the benefit of his valuable time and expertise this afternoon, and I want to thank our audience for participating and sending in your questions. We welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.