the supreme court heard oral arguments and americans for prosperity foundation versus rodriguez. a consolidated case challenging the constitutionality of california's law requiring charitable nonprofits to disclose their big donors names to the attorney general for oversight purposes. the justices have through june 2021 to decide whether this law violates the right to free association. this oral argument is about one hour and 45 minutes. >> the honorable chief justice and associate justices of the je supreme court of the united

states. all persons having business before the honorable supreme court of the united states are advised to give their attention where the court is now sitting. the united states and n this honorable court. we will hear arguments first this morning in case 19 to 51 americans for prosperityty foundation versus the consolidated case. >> thank you mr. chief justice. we are here because the california attorney general is demanding tens of thousands of charities annually disclose top donors nationwide as listed on the schedule to the irs. this demand casts a profound nationwide chill and it does so for no good reason. the district court filed california's upfront collection of the schedule does not furthec the states law enforcement goals. the finding is both dispositive and unassailable.

forty-six states today without any such a blanket demand. california itself did so for years without any problems. they never find any legitimate use unless and until a complaint comes in as happens for only a fraction of 1% of all charities. even when reviewed, the schedules for extreme sensitivities have only trifling utility. california views them in a handful of investigations. when the schedule b has used, california has much narrower means to obtain it namely the audit letter to the charity of heconcern. indeed it is the standard practice to issue precisely such a letter requesting the other documentation for any charity that investigates. california's justification reduces a client law enforcement interest in having all schedules prophylactically warehoused before the schedule is pursuant

to any actual investigation. that does not begin to justify the first amendment posed. as the amicus briefs from hundreds of concerned parties spanning the spectrum agree. because california's upfront suspicionless demand is not narrowly tailored as it must be under this precedent it's unconstitutional in its applications and certainly in a substantial number of them. we urge the court to hold it in valid. >> mr. schafer, your main argument is we should apply strict scrutiny to the disclosure requirements here. but with respect to political speech, when we have an issue of the compelled disclosure, we apply exacting scrutiny. doesn't it seems strange that when you'reig talking about the

charitable associations, you would apply a more rigorous test than we apply to the associations? >> i think among the petitioners at the americans for prosperity we have no quarrel with that and think they made the argument well for the standard but the imperative for the petitioners is simply to stress under any standard i of exacting scrutiny that calls for the narrow tailoring this demand is invalid and to be struck down across the board. >> thank you for the correction. what exactly is your understanding of what that means i think that it's not well-settled under the exact scrutiny standard. >> i think that it gives the holding. specifically it struck down

demand teachers disclose their associations and it did so for the lack of tailoring while recognize there may be a substantial relationship to the goal of protecting kids in schools so if it articulates the standard specifically in this context iid do note in the prior question even in this context it does speak in terms of the scrutiny and holds that the disclosure is the least restrictive alternative in that contextt categorically different and one where of course there's an interest in the disclosure. >> justice thomas. >> thank you mr. chief justice. three questions. how would it affect your analysis in the organization if there was something not controversial such as provide free dog beds or patient care

[inaudible] something like that would your analysis change in anyn way? >> i noted that among the supporting with the nonprofit and alliance their work can be controversial depending how they should be handled thereth can be controversy around that. we may not have thought when they leaked the schedule b of the justice that that would be especially threatening but today in 2021 it's sad to say it could be a life or death issue. think about religious organizations that may have views about masking vaccinations. in these times it's tough to with certainty a charityai that is noncontroversl in those respects. even if there were, there are understandable concerns, religious convictions, desire not to lose privacy, not to be harassed by solicitations that

donors legitimately have across the spectrum. >> there seems to be quite a bit of accusations on the organizations that have certain views of being a white supremacist organization or racist or homophobic, something like that as a result have become quite controversial. do you think that sort of labeling would change your analysis? >> there is expert testimony for both of the petitioners explaining that precisely because there is such an intensity of the views and proclivity to verify, that is part of what puts -- it raises

the stakes and that concerns all across the spectrum so that's there but i also think the president recognizes the history and common sense that says they are concerned about having their identities revealed. that wasca true for the naacp ad the republican party where the court affirmed. >> i wonder if the state of california is doing with the state requires on this information as a part of your tax returns if you claim a deduction. >> i know that is categorically different if they don't serve the tax function in california and congress made a judgment specifically about a nexus for schedule b and the information and how it is to be used. it'svi for federal tax collectin so it is a comparison of the

individual donors deductions on their federal tax forms and the nation has jurisdiction with a scope of the schedule. none of that is true in california. >> justice breyer. >> if you win in this case, i think the court in some form has held that the interest of the donors in maintaining privacy of their getting interest of the charity and receiving those monies fear at least outweighs the interest of the state in having a law on the books that even if it is never enforced it frightens people into behaving properly. somethingno like that. if we hold that, can we distinguish campaign finance laws where the interest is even

stronger as people being able to get anonymously, can we distinguish the law that required them to disclose, how would you distinguish that if you would? and the other thing i would like for you to distinguish as justice thomas brought up the irs requires the disclosure for tax purposes. california wants closures so it has the potential for finding out and that potential as i said might in and of itself discourage people from acting in properly and respect so i would like to hear the distinction if you have them between those two things. >> for the first question, let me emphasize there is no law on the books requiring the schedule b. what you have is a bureaucratic

when and we submit that the differently. number two the interest is not in reviewing schedule b. it's having them on hand on a suspicionless basis from all charities to then review a handful when i am a external complaint comes in. we are not challenging the schedule b from a particular charity which it is always doing if they have the reason so the interest on the stateside is quite negligible and you are eluding to the rationale. let me emphasize you will not find that rationale in california. it's not only a post-justification but it is a justification that comes before the court and there is no shred of evidence to support that and of course no more reason to think schedule will be sitting in their hand is part of a warehouse is any more detouring by virtue of sitting there.

it's only if it serves law enforcement purposes and as you know it is on file in any of those, so if there is a deterrent effect it rationally follows that it's already being served before california. now for the irs there is a statute for congress and number two it is for tax collection purposes. number three, nationwide's scope and number four there's a whole statutory that has criminal and civil penalties for any violation of confidentiality. there is no framework like that and the record shows the opposite in terms of how likely these are. >> justice alito. >> what does theit record to shw about the number of countries andd cases which california has used this information? prior to an audit. a. >> we think there are five instances where that's happening. california seems to contend that there were ten.

the court found five and the reason the district court found a five is based on the testimony of the lead auditor who had been serving as an auditor since 1988 and had been the lead auditor since 2001 and was designated as california's witness on this critical subject matter. and used it once. think of one instance where he surveyed all the auditors they came up with five instances and in the 80s the attorneys added to get to ten but that's the most they can get to and i would commend the relevant experts if you can see in the testimony and americans for prosperity foundation 397299. california says that on this record you haven't even shown entitlement to succeed on and as applied challenge. what do you understand california to demand you prove that you haven't already proved?

>> i don't know what you can possibly ask these petitioners to prove that they didn't approve. give an expert testimony from their officers and instances of threats and violence including death threats directed against the organizations were the or ts in the same positions. and i would note that with california contemplating it is different from what you and the court contemplated where it was 130,000 plus if they had their first interest and adjudicated together and we understand what california is requiring it's not just a standard but it's essentially impossible to meet but you have tens of thousands of charities all having to go to court to indicate the first amendment interests. it isn't workable or a solution to the problem here that is posed. >> california mall tells us they've changed their practices t and they are serious about

confidentiality. what should we make of that. should we hold them to ever [inaudible] >> we think that they fall down before you even get to the confidentiality. it would be necessary but not sufficient to the demand being upheld and really it is the lack of the state interest that by the way i should emphasize in the case it was not an instance where it was the upfront collection. for all they know it was an audit letter so we think the confidentiality adds to but nothere is an evenness to those just focusing on them, there's nothing california can do at this point that would convince the reasonable donors and charities the record of confidentiality that now doesou have truly been fixed. >> justice. >> if we were to apply the type

that you advocate i don't see how the public disclosure issue would have survived. therv court held washington state's requirement that the signatories be publicly disclosed was substantially related to its interest in protecting the integrity. but there the state secretary, the secretary of state, pardon the redundancy, check to checked signatures for fraud. that doesn't seem to be anything like that if that is what we were implying. it seems to me as a chief justice pointed out that it is different than what we have been doing under exacting scrutiny. under your theory of the case though, they shouldn't survive. >> if i may, justice. we think that respectfully it is

categorically an opposite and explicitly specific to the electoral context the court said so repeatedly. a. >> if that were the case that the bill didn't have to go through its analysis it would have just said. but it went through and buckley itself said that the naacp exacting scrutiny was something different than the least restrictive means of doing something. >> we think you can stop shortrt of requiring that even in this context and reach the same result. >> let me go through everything you are saying about california. i assume that the vast majority of the charities are not involved in fraud. you seem to assume that the

numbers of cases in which this is useful has to bee dramaticay large because charities are dramatically largely committing fraud. what if i disagree with you, number one. number two, the interest california has in the schedule is in part there was testimony by the head of the charitable organization and by the investigating auditing team that if you give out a subpoena or audit letter that it tips off and there has been history of the letters tipping off the fraudsters and then hiding their illegalitypp. so this disclosure saved some time because the auditing letters take them a long time to get the information. it helps to identify when a

report comes in of problems whether it supports the further investigation. .. >> if the ag were genuinely

concerned they would never do your honor what they always do to say in the audit letter at the outset of any investigation telling a cherry that is investigated to schedule with all the relevant documentation which charities always do. during the years tens of thousands of registered charities were not filing schedule these no one ever complained or sought to change it was a bureaucrat who said let's require that did not come from audits or from monitoring. >> another point if i may it is implausible the state is using schedule be specifically in the prophylactic fashion have all the other 990 information including schedule l and adam and jay and employee compensation is not a genuine interest at best it is

negligible. >> thankka you counsel. justice kagan. >> i would like you to assume a set of facts with me. there are some donors tucson charities that are genuinely concerned about disclosure for fear of harassment or threats but a substantial majority of donors and charities are not concerned about that. in fact they like public disclosure of their generosity. could you win a challenge quick. >> yes. for two reasons the first amendment context really need to show a number of instances. >> the great majority are not concerned about this. >> respectfully i would question your honor's premise.

>> excuse me.d my premise is supported by a lot of facts. most charities disclose their donors in fact it is part of their strategy the more disclosure there is the more fundraising and association there is. so let's take my fact as a given there is a substantial majority of charities that disclose themselves and don't mind disclosure. >> this court and the city of los angeles needs to explain the proper analysis as to whether you have voluntary compliance that is outside of the constitutional analysis. >> mr. schaefer take it as a stipulation the great majority ofto donors do not mind disclosure by anybody. >>is can you win and i challenge on the premise?

>> yes. we are notic here to enjoin those charities from disclosing their donors. they can continue to do so california can request and they can comply. >> imb would've thought with the challenge you need to show some significant number of people in the world actually has this concern otherwise you should bring another challenge i thought that was the whole point of the distinction between the two quick. >> i do best on city of los angeles that explainin that is not the correct analysis some will voluntarily comply others resisted the demand. >> i heard you say to justice alito that even if there were a guarantee this information were never disclosed. let's say california had at leastt as good protections as

the irs, may be better. if that were so could you when the challenge quick. >> yes because there is no statute to protect confidentiality. >> again mr. schaefer i am stipulating the statute does exist at least as good of protection as inal the irs context. could you when the facia challenge quick. >> yes justice kagan we respectfully submit that uk because the lack of interest in shelter into the court was explicit even if it remains private and secure by the government it was still unconstitutional. >> thank you mr. schaefer. >> justice gorsuch. >> i would like to pick up where we just left off where it is appropriate. >> anything sure it facia relief is for charities that is the principles to protect. the reason forpl that is if you have to go to court to go

through the hurdles that california and the ninth circuit would interpose even those petitioners litigating first several years of the benefit of experts and witnesses and their officers and those horrific experiences we are still struggling to establish firstou amendment rights. every charity that has concerns with the first amendmentle when those supply challenge begins. and then in terms of precedent in the first amendment instance where the law is unconstitutional that warrants invalidation. it is unconstitutional and all applications when a charity doesn't want to schedule a schedule b and there is no tailoring if ja for 2022 california officials specifically are testifying they never consider the narrow alternative.

>> what is your understanding with scrutiny? >> thell court has not been perfectly clear. what is clear from the naacp from alabama needs to be a compelling interest. in the election context, categorically disclosure is presumed to be the least restrictive alternative. and then charitable context what we talk about here it could be less clear that standard of scrutiny but it is clear that there is at least narrow tailoring required once the court required that california demand cannot survive only by dispensing that with narrow terrell tailoring altogether. >> i would stop california

from the request for the schedule be as part of the tax collection process quick. >> the california attorney general has no f authorization that is completely separating california thatt if you put that in bad faith we could challenge it as that. >> maybe i wasn't clear there are two possibilities one to get rid of the rule that the ag issues a boilerplate request to w organizations for policing potential fraud and that in a tax collection process to mandate the disclosure of schedule d. >> they have to have exacting

scrutiny hopefully you get a considered judgment that balances those considerations to make sure there is narrow tailoring. we just want them to stand by the president and that principle. want to think before those first amendment rights are at issue. to challenge those programs you have to have those principles that decide the case. >> justice kavanaugh. >> thank you chief justice. good morning mr. schaefer. can youou distinguish what california is doing from the irs to explain how you would have us distinguish the two crimes quick. >> the irs has aay better set of defenses than california because of the statutory mandateir that t3 has because of the exemption because of the nationwide shorter one - - charter and because you have a

strict confidentiality regime that exist on the statute through the terrible protocols implemented. for the irs is not a demand by state law enforcement which is at the core of naacp versus alabama but the single regulator with that tight nexus is much more limited than one state asking willy-nilly and then others without limitation. also justice kavanaugh the irs is not in thehe business of posting submissions online the way california is resulting in so many ofwh these leaks quite predictably.

last, the irs has credited concerns about schedule b and moving in the opposite direction of california. they are asking if they really if it is worth it california gratuitously is fishing for schedule b with no real utility of the upfront collection. >> you agree with the irs iss doing is constitutional quick. >> that is a different case they are reasons which we have discussed i would just say it would be subjected to exacting scrutiny and i'm sure you can count on the s united states to provide a very powerful defensen . >> if california pastor the same scheme in a statute and it was designed for tax collection with a strict confidentiality law that mirrored the federal protections, it would rise or fall to the irs program. correct? >> not quite justice kavanaugh. before the statute class all these before the court am quite confident to say they would be lobbying the california legislature. >> i understand but if it is the exact duplicate statute of

the statutory program quick. >> i still don't think it works i don't think it is as powerful as the irs justification it's a nationwide very few are in california and of course california the jurisdiction stops at its borders that is not true for the federal government and the irs. >> do you agree on the text of the first amendment the freedom to peacefully assemble is distinct from the petition the government for redress the government one - - grievances. >> the amicus brief is very clear from the demand from california is a directory strained and that is understood by the framers and codified in the first amendment. >> justice barrett. >> i want to pick up where justice kavanaugh left off. what if you have a lot on a

state university campus that made it illegal foror anyone to engage in any speech whatsoever? but it's also the case most students say that's fine. i'm not planning to demonstrate it was just a small percentage of people that were bothered with that be unconstitutional quick. >> of course it would provide are now any case that suggest the opposite. the city of los angeles explains precisely why you look only at those not those who simply succumb. >> this relates to justice kavanaugh's question because it is an invasion ofdi speech directly. so discuss is that the independenty right for the freedom to associate anonymously or is it simply it makes sense if you say this is simply to protect going back to the amicus brief speech down the road describe the

nature of the rights that are at stake. >> there are multiple. we think even the indirect restraint is subject to exacting scrutiny and narrow tailoring naacp and versus alabama where narrow tailoring is required and the concern is indistinguishablee and the nature of the right but if there is a direct infringement on the right to peacefully assemble i cannot argue that any better but we agree with the arguments in the right to solicit keep in mind this is a condition to charities speak asas charities to the public and in the brief along with others explained that point very well. >> the right to anonymously associate is inherent to freedom of assembly. >> yes it is. anonymity was a core concern that were reflected in the

presidents and also the right to assemble is the right to assemble privately and peaceably when the government says tell us who your donors are that is a direct infringement. >> he repeatedly distinguish the irs form from the california use of schedule be because off the fact it is strictly confidential with a nationwide mandate. you talk about the distinction this isn't a statute in california but subject to executive wham. why do all those things matter? state action is state action. of california has a statewide mandate passes a statue and justice kagan talked about keeping things strictly confidential done by statute and only applies to donors in the state of california is at a different case quick.

>> we explained very well even in the analysis with these alternatives established started with the states interest and had two credit that and whether there is a statute that reflects the considered judgment that this is warranted in useful should make a difference in the court's analysis and i commended justice stevens footnote number three explaining the state strengths of their interest goes up if you have a considered legislative judgment that had been made here is the opposite and the acknowledgment of california again reflecting the joint appendix they have not even thought about narrow jailing. >> wrap up mr. schaefer. >> we think the rule of law is clear not fuzzy even if there are semantic differences or question of doctrine with exacting scrutiny your least

restrictive alternative the court's holding is clear in shelton unless overruled narrow tailoring at the very least a bare minimum is required the court has insisted on it repeatedly and has done so across the first amendment scrutiny it does not call for narrow tailoring to say estate cannot be infringing upon these precious liberties gratuitously and disproportionately. here california narrow alternative is obvious and unanswerable and individualized audit request we are not challenging and california relies upon in every case redundantly after the prophylactic up front collection that is redundant is the opposite of doing it narrowly. >> thank you council. council quick. >> this morning in response to

justice sotomayor question the foundation conceived scrutiny does not contain a least restrictive means requirement. and for good reason the case makes clear under exacting screen need the standard is less stringent for narrow tailoring test. the court has appealed with this reporting requirement. the court rejected the facial challenge they have not shown the closure showing the typical charity would be the s the risk of threat or harassment after that showing across the board across the board burden they have no basis to strike down the law on the face. instead the evidence ofnt burden focused on harm to their own donors. we agree the court of appeals analysis was incomplete and the case should therefore be remanded for the court to properly assess the chilling effect on the donors. welcome the courts questions. >> general, how do you think as applied challenge would

work? is that charity, the schedule b to be disclosed, are they to attach an affidavit to say we are controversial and if people gave money to us the rights to association would be chilled? >> the court has recognized and mr. chief justice there should not be stringent standards of proof for the challenges. so a charity he thinks the donors would face threats or harassment could have evidence to bear on that question. >> however many there are. that is my question. when you say come forward does that mean they file a

statement to say we are controversial charity. to prove that here are a number of examples where donors were harassed somebody in the ag office would make a judgment about it? i just don't understand how it works. >> it could work into different ways. those administrative procedures to seek an exemption from the attorney general's office directly. the way this was in the lower courts was a judicial challenge they did not disclose theyb schedule - - t3 requirement. >> would you require anybody didn't disclose that would have to be that requirement. >> not necessarily to take advantage of those remedies by them vocally on - - berkeley recognizes or has to be a meaningful opportunity that that is the first amendment rights in this context. >> hour the administrative person in the california attorney general's office decide if a particular charity qualified for the as applied exemption? >> that relevant information

if there was a risk of harassment was a reprisal turning on the organization itself any documented record other organizations like it. >> how many examples of people being abused do you have to have before people say yes that is controversial and they don't have to file schedule b? >> it is in on a particular number but the framework if there is a reasonable probability that is a flexible standard not to be unduly's stringent that's why we think it should be sent back to the court of appealsls based on this evidence b. >> justice thomas. >> thank you mr. chief justice. council, speaking about the chilling effect what role

would accusations particular organizations or races support white supremacy. that ify, there is a view of that organization with that reputation would that be a chilling effect if the contributors think that information or their contributions to the organization would be disclosed? is that more of a concern in that case than in the organization. >> yes. i agree completely justice thomas those that would be associated with particular causes that that might very

well have that concern of the organization can show it triggers the probability of harassment. that is clearly distinguishable for the typical charity that it is not at all controversial with that backlash and as a justice kagan noted many already disclose identities of their donors so that way in the case of the general application of the disclosure requirement anything with that risk to promote that kind of public debate. in that respect we think the record with that was confronted because they are the court recognized with respect there could be risks or harm arising from disclosure to apply across the board in each and every case. >> i like your reaction from

thee naacp reply in the case. the right of anonymity is an incident of civilized society and then necessary adjunct of freedom to association to slow and free expression iner a democratic state. is there such a right quick. >> i think what this court has recognized in considering claims like that privacy mayso in many cases be essential to associational rights but that is not what it would be so but in cases like buckley there is a possibility for that disclosure requirement in so far as privacy may be important but that's exactly why the court adopted scrutiny to measuresu these claims that there is a burden on first amendmenty for new purposes of assessing that is valid.

>> justice breyer quick. >> i would like to know what you think of the argument raised that this case is a stalking horse for campaign finance disclosure law. what is thee difference if we were to hold against you and for the broader claims of the rules at issue in this case that the petitioner brings with the context that you heard justice thomas very eloquently explained that right and the need for the political forum. money is involved in bothhe p cases.

so if that broad interest exist here while you can distinguish campaign finance. >> campaign disclosure requirements insofar as they are different interests that are asserted in support of those laws. and then to pursue those goals but that same standard of review applies to those requirements across the board and that distinction between electoral cases is illusory because what the court has recognized that disclosure it only affects the right indirectly and they don't suppress particular ideas or types of association for that reason to be subject to a less stringent standard of review

in thisiv requirement as well. >> justice alito. >> iis was interested in your colloquy with the chief justice has california ever said it would grant and exemption if a nonprofit submits an affidavit or other proof the donors would be chilled by disclosure quick. >> i am not aware of that and the record hopefully it draws the parallel to the campaign financeit regulation. >> every nonprofit that fears what these petitioners have done which is to take california to cut to fight the state to send mail over six years to avoid public disclosure p quick. >> .

>> as an exemption there is nothing wrong with it. the corresponding rule to invalidate the law but there is no first amendment burden nevertheless to be precluded to police charitable fraud in this way. >> looking for first amendment rights. looking for donors to organizations with hot button issuesur reason to fear reprisal that they are made public is that a legitimate fear in the current atmosphere? >> no. that can produce a chilling effect in individual cases but there is no indication that is created across the board with respect to the average person

to the average organization and there is no evidence to conclude they would stop donating to charitable organizations to be enforced in the case. >> with respect to this particular case that it is remanded to the ninth circuit and the significant harm if identities became publicly known. the record shows the districte court conducted ade trial with ample evidence that the petitioners would be harassed and thehi brief filed by the american civil liberties union and other groups says petitioners have shown people publicly affiliated with theirre organizations have been subjected to threats or harassment or economic reprisals. what more with these

petitioners have to show quick. >> the way that evidence factors in this case is in measuring theto chilling effect the reason we think the court of appeals iss incomplete because even though no future perspective risk to consider the way the unfortunate widespread public disclosure it whether with the petitioner and we think the donor with think about not just the risk of disclosure but how severe the consequences would be the greater the chilling effect if not inadvertent disclosure. >> the record shows is this sufficient or not i don't understand your position. >> the court of appeals should complete the analysis and conduct the inquiry.

ultimately the interest of the united states is in the legal standards that apply to disclosure requirements. we haven't take a position but we do think it needs to be given. >> justicent sotomayor. >> i am thinking along the justice alito question. it seems to me that you are basically asking a question the ninth circuit did not answer. the question you think it didn't answer do they have a reasonable fear even if they pass disclosure problems? is it d reasonable for them?

is that we are asking the court to do quick. >> yes that is a chilling effect that should be measured in this case. >> i actually may agree with you that is what the caseload would suggest. is that a factual question should answer? >> but it should be answered with the legal standard of those particular facts. >> let me tell you what i have been struggling in this case you can tell me right or wrong. with the exacting scrutiny standard requires. it seems we look at first is can a disclosure hurt a party?

generally we ask three questions but if we take them backwards is there a potential burden? in this case the petitioners have shown a disclosure could harm them i don't thank you dispute that. correct? >> public disclosure. >> that's the point. so if it's not a public disclosure what the law purports to. that the state has a substantial interest not a compelling interest in this information and the other side says given the number of times we use it it is a substantial interest to help us.

has a state proven it will keep this private? isn't that the bottom line quick. >> it is a critical component we do agree between public and nonpublic disclosure requirements it reduces the risk of any harassment or reprisal from third-party themselves. with that overarching legal question that you are referring to that it is appropriate and every case for the burden onst the first amendment rights to useie that as the benchmark for the states interest. >> justice kagan. >> withle your views coming up on a facial challenge is appropriate and one on the contrary it is not in a person should be remitted to the as applied challenge.

i would like you to answer the hypothetical that it would seem irrelevant ahe lot of people don't care about a blanket restriction on speech so why is that any different here quick. >> i will began with the hypothetical with that situation as a direct prohibition of speech that creates all the concerns the government to suppress viewpoints or ideas triggering strict scrutiny disclosure requirements are different the court recognizes they may affect the association but indirectly it is necessary to take account of the actual burden of first amendment rights. that explains why they should not succeed because there is no evidence there is any widespread substantial burden in the statute to contributing

to a charity the evidence the petitioners have focus onn harm to their own donors that is cause for concern that there is no reason to generalize that thehe average person contributing to a charity would be harmed. >> i heard some questioning at the end of mr. schaeffer's round maybe this isn't indirect restriction maybe those rights are directly violated with a reference to the beckett find brief. >> that word run counter to the long-standing precedent it again and again characterizes to a different level of scrutiny. the court has said that disclosure is the possibility of affectingen the rights so it is a seachange to inject those

disclosure requirements to the same scrutiny of more direct regulations a speech or regulation. >> there is a lot of confusion when acting scrutiny means you started by saying is not the least restrictive alternative test but to say you have to be narrowly tailored. one is the proper level of tailoring in this context quick. >> we try to label it as narrow tailoring the least restrictive means test to suggest there is a universal fixed formulation applying in this context. the way we have the precedent it is the strength of the governmental interest with the seriousness of the burden on first amendment rights to have an element of flexibility and analysis intrinsically tied to the first w amendment burden

than the more stringent to have a sufficiently strong interest to regulate to the chosen means. >> justice gorsuch. >> good morning general. i want to poke further into the facial challenge question. i d understand they would have to come forward they are likely to be harassed but doesn't that lead the cart before the horse because you place donors into organizations in the unenviable position to prove they have been harassed in order to vindicate the first amendment rights for privacy andti association. >>ee playing on this buckley it

is true courts have to sure they are not holding organizations that have undue burden of proof with this court's analysis which mr. schaeffer repeatedly relied on. >> thosear are nice words but i am looking for something a little more concrete. and t with that association? how do you protect that with donors and organizations to come forward that they have been harassed? >> i want to be sure being absolutely clear thecr privacy and association is critical to the exercise but that's not invariably the case with respect to the actual evidence ultimately they show the specific evidence of harassment instead the court

has said any evidence that suggests there is public hostility to the organization to individual members and past practices could show there is a chilling effect in that circumstance. >> do you think the government could compel private organizations that the briefs i saw to ensure the accuracy of mail delivery or a list of people they dated for marriage patterns? what would be wrong in your view with those sorts of things to show they have been harassed as a result of this disclosure? why would it be wrong to think this is a problem of compelling speech quick. >> that is a big difference with those hypotheticals with

respect to the burden in the state interest. taking each of those in turn. >> bed in each case you compel speech from a party who doesn't want to why is that a problem? >> no party suggest these disclosure requirements. >> but i am asking you if they should be. >> and i think they would succeed if they were. it is truly factual information they won't be violated of course there are concerns that's why they focused on the privacy and association . >> thank you. >> justice kavanaugh. >> good morning general. and oppressive array of amicus brief supporting the petitioners across the spectrum.l one of them is from the american civil liberties

union, naacp in the human rights campaign among others and that brief says "a critical corollary to freedom to associate the right to maintain the confidentiality of one associations absent a strong disclosure of the state can categorically demand the ability of citizens of those values out of favor with the majority would be seriously diminished". your reaction to that amicus brief and those generally that are supporting petitioners quick. >> with respect to that amicus brief in particular a critical part was observed to argue this disclosure requirement should be treated like a public disclosure requirements about the outset the aclu and

naacp realizes a difference between public and nonpublic disclosure but the amicus brief and showing more broadly is the case there are many organizations that desire that privacy and association and then in a particular way but that it creates a first amendment burden. and there is an array of amicus brief on, the other side california association of nonprofits 10000 member organization and the national council 25000 member organizations. that suggest there is a critical role to be played to ensure donors have confidence in general organizations with the willingness to donate and the pursuit of philanthropic efforts. >> do you agree there is a right of the people to peacefully assemble? >> i agree the assembly

provision is ang first amendment right that no party is pressing that and focused on the rights to associate. >> in terms of applying strict or exacting scrutiny. sometimes those words are just asking the question. not answering the question of the state has a warrant for that constitutional right for exception. and two things the court has look to with the free speech context and others and that is to historically recognize the rights historically and also looking at how many states have also shared the same interest. is not a historically recognized exception.

but that cannot be all that important so the argument goes 46 other states have not sought this type of information. >> i will do those in reverse order i don't think it could be the case that california's law is just based on that headcount the states could choose to devote different ways and what california has shown it prioritizes the issue with far more resources than others and because of the sheer number of charitable organizations that are somewhat unique and number and that prompted california to act in this way so the relevant question is if it sufficiently has justified the law. >>ti justice barrett.

>> let's say that i have that exacting scrutiny applies. the ninth circuit did not engage in a tailoring inquiry it is a balancing of interest. asking about so do you agree there has to be a means? >> yes but it is incorporated to reflect the seriousness of the actual burden on first amendment rights. that would very depending on the circumstances based on the showing and the more serious the burden the less likelihood the state has a sufficiently strong interest through the chosen means. i do think the court of appeals to explain what that

would be less effective and in california to make use of schedule be at the outset before of that concern related to having that information at an early stage. isio not accurate to say there was no analysis at that opinion. >> tell me if you would agree this is the standard we should apply with the means. that in evaluating means we struck down the law because we concluded the government's purpose cannotd be pursued to stifle personal liberties when he and can be more narrowly achieved. would you be satisfied with that standard? >> it applies on substantial first amendment burden the way that was articulated in shelton to show every teacher

in the t state because they lack protection and naturally avoid any association that might cause concern for t the employer even though it did not there on the fitness of the teacher to serve in that capacity. >> so the as applied challenges if it adequately establishes there petitioner has reason to fear retaliation, what is the t petitioners fear to file the challenge before this occurred? how should the state judge quick. >> with respect to minor political parties if there is one that doesn't have a history to point to it can reliant evidence with respect to the organizations that share similar missions the court specifically acknowledged this concern

different in california or alabama what should the court look to? the climate of a particular state quick. shoulddon't think it be limited in that way. the petitioner should come forward with any evidence of harm to show there would actually be a chilling effect inup this case. >> thank you mr. chief justice i would like to focus on what the court should apply it makes clear the exacting scrutiny applies to reporting requirements a standard does not have the least restrictive means test when there is no basis to conclude and has threats or harassment or reprisal of the application the other relevant legal standard is organizations need to have a meaningful opportunity to haveec the as applied exception when it

suggesten to harassment or intimidation. presenting evidence the court of appeal should consider that evidence to measure the chilling effect of this law as applied we urge the court to confirm the legal standards to assess the as applied challenge. >> thank you general. >> mr. chief justice may it please the court. petitioners advance to claims of theis facial challenge and as applied those are reviewed under exacting scrutiny. the standard thehe court has long applied to reporting and disclosure requirements. to prevail on the facial claim they must demonstrate california teethree requirement is unconstitutional and all or many applications' petitioners evidence focus only on their own organization not that the confidential collection of the same

information that charities already provide to the irs show interest in general or for a substantial number of charities in the state. at the same time the state up front of schedule be is related to important oversight and law enforcement interest. schedule b is used routinely to evaluate claims and examined with other documents it helps investigators determine that there is a concern with the version of charitable assets that warrants a formal investigation. the as applied challenges claim thathe submitting schedule be forms will lead to threats and

harassment from the public. schedule bees are confidential under california law the state has faltered the confidentiality protocol in response there is no reasonable probability of harm sufficient for asma applied relief. i welcome the courts questions. >> to follow up on that point you are making general, assuming it supports a cause that is controversial and a number of organizations say they would let make life miserable for anyone who supports that charity to boycott anybody doing business if that person came to you and said i went to give a donation back california willit not disclose or give out, can you give me 100 percent assurance that wouldat not happen quick. >> mr. chief justice i don't think any organization can guarantee perfection but the state has promulgated a regulation with the

confidential status of schedule be. and to enhance the protocols. the district court at 62 a called the efforts commendable. wedo don't think there is any probability that harm would come to pass in the nature of this requirement. >> i'm sorry there is no probability? >> nos: reasonable probability the harms that you laid out would come to pass. >> reasonable probability. >> okay. and withun that schedule be information. i went to make sure if your statement was consistent with the findings of the district court were meant to dispute those findings. >> with the state schedule be

for evaluating complaints it did state that 56 a of the appendix it didid not doubt the attorney general's office used schedule be and using that is strictly not necessary or not any other alternatives to further this days interestingly think that was legal error. >> justice thomas. >> thank you mr. chief justice. counsel, i am interested in your discussion of the nonpublic disclosure laws. the fact you would have this internally and not disclose it to the general public. throughout recent history orho not so recent history the

japanese internmente cases. and the council on american islamic relations. and then america is muslim in the civil rights cases of the naacp case. the local government and state government with the naacp. and with that public disclosure with the nonpublic disclosure? >> that concerns you raise are very significant. the district court may no - -

made no retaliation against charities and there is no evidence in the record to support any such concerns. >> with that in mind do you think it would be reasonable to make a substantial contribution touring organization to be racist or homophobic or white supremacist that in this environment and they have no confidence that the contribution will be kept confidential. >> those concerns are relevant for consideration as a challenge but as any challenge is there a reasonable probability of threats or harassment or reprisals that

would be on the risk your honor noted but also the risk of public disclosure and here with the nonpublic reporting requirement those risks of public threat would not be a significant possibility of those. >> . >> in that calculus do you include the possibility of an intentional leak of someone who happens to disagree that someone would consider that a possibility. >> generally that is a relevant consideration. there is no evidence in the record suggesting that type of retaliationn. >> and to show this statement of the other side has ruled.

>> the statement is as i paraphrase, there is no need for this. you cannot say there isn't some risk of leakage. it has never been necessary really at the very least you can have a carefully tailored like new york which is a more carefully tailored statute i thought the answer might to be that to go by a piece of land or property in san francisco or new york it belongs to a major donor. maybe he overpaid. this law means any charity would be very careful before they get into that fix it's called preventative.

so what's the answer and why didn't you make the second argument there is some good reason. >> justice breyer the record upfront collection of schedule be assist state regulators to evaluate complaints and then to be premised upon with the upfront collection the state is able to evaluate complaints with that formal investigation is needed with those relevant concerns those would not be sufficient to meet those needs the state would not have the ability to see schedule be

information in connection with other information to decide if an investigation is even needed after the fact they lead to delay and considerable burden on charities and it is not clear petitioners or other charities would provide a schedule be in response i thought i heard my friends say that it would be something he would challenge. >> justice alito? >> counsel, would it be facially unconstitutional if you publicly disclose to the donor list? >> in that circumstance the burden on charities and their supporters would be higher so a stronger interest would be

needed we don't assert an interest in public disclosure there could be circumstances a can serve an interest but we don't assert any such interest. >> are you willing to say that would be unconstitutional? the challenger still has to show it is operating on the substantial number ofas cases. and as justice kagan and was noting many have those types of concerns. >> the brief filed of the defense fund says we should regard the system as de facto

there has been such massive confidentiality breaches in californiaer the donor may say this is a state grossly negligent in the past so i have to assume this may happen again. >> why isn't that a reasonable way to look at this. >> even the district court did not look at it this way the district court said the attorney general office. >> . >> and then following the court's analysis of the evidence regarding the changes to the states protocol and its concern at that point very

can't. >> confidentiality. >>er and then to be a necessary to proceed and as example with the proposition eight legal defense fund and with those reprisals or the well-known case. >> and this is no reasonable probability with that reprisal with a general principle of law with the evidentiary standard with those disclosure

requirements to draw from a wide range of evidence. >> because what you have purportedly is a private disclosures system. >> justice alito and with those reprisals from the public they said not satisfy the standard because there isn't a reasonable probability that information would be made known. >> . >> so that challenge could never succeed. >> for that reason. >> with respect to a nonpublic reporting requirement asserting claims asserting threats fromm the public, that

would be a very difficult standard to meet. >> thank you my time is up. >> my memory could be wrong but the district court in the end commended you for the efforts you made for privacy but it concluded given the breaches and the pastor reasonable donor might not have that much faith in the ag office and that's one of the reasons if not the reason they issued the injunction which the ninth circuit vacated. what are we to do with that? that is on the necessary if

you make it public and you are right. the district court has to determine if your office has a reputation or reasonable possibility to engage in political retaliation and we can secretly et cetera. but what do we do with that finding? that given your past breaches you have essentially to turn this into a public disclosure case quick. >> but default the attorney general office at that point not to be able to guarantee confidentiality. we don't think that guarantee can be the standard. >> let me give you an example.

how about if they requirement is you hand-deliver this list to put in a locked file. is that a guarantee better than all ofed the anti- hacking procedures that you have? that there is a normal human fear that they could hack? >> in that hypothetical, it is true the general concerns about hacking word not be present. >> there is a serious question if someone argued they were fearful on the general hacking then weha would say they don't have stacking - - standing for an injury. >> with hacking it is a

present risk in modern society no system can have 100 percent safeguard. >> including the irs? >> indeed that the important point petitioners did notot bring forward evidence to suggest even in light of the background risk charities in general or a substantial number of than one - - of them that with the amicus brief in the national council of nonprofits that robust attorney general oversight promotes charitable giving because it promotes trust in the charitable sector. >> i would also like to ask you that you lost that we in the district court and the findings are reviewed under

clearly erroneous standard. the district court said there is a pervasive and recurrent pattern that the donors would likely be subject to threats and harassment if disclose. given those two findings and the clear error standard how can you win on the as applied challenge quick. >> we think the district court's ruling was premised that california could not guarantee confidentiality. and if the court disagrees with the ninth circuit approach and then with the united states and then to

reconsider the question of the framing ofin the confidentiality protections. >> and those to allow the government to say we change the practices and do better in the future to give us a pass isn't that what you're asking for here? >> the regulation codified existing practices in the attorney general's office the petitioners here are seeking a prospective validation and it consider the updated protocols in connection with the challenge and they are

relevant for that reason. >> with the question of threats and harassment if the memberssh come in to show that they have been subject to such threats do they need to do anything else in your view? is there a requirement that it led to chill or with harassment? >>. in general with respect to public disclosure requirements, the question is if there is a reasonable probability those threats would occur. and if they do it is reasonably to think those repercussions word arise and demonstrate ans deterrence for

associations to make contributions to charity because of the significance of those consequences. >> if the first amendment totects the right associate in private why do we need to consider harassment? >> the court has said repeatedly that the first amendment rights may be implicated by those reportingrs requirements but they don't do so invariably. >> so proof of harassment can be very significant that evidence the first amendment right to associate has been infringed. but also the first amendment right to associate includes the right to do so privately. right? >> privacy is a concern and

with that information and with those because of the reactions to prompt of others. >> could the government require private association to reveal any manner of information? as long as there is no evidence and there's no probability of reprisal. >>io it would be much more difficult for the government to justify. i'm sure there is efficiency and post office services and censusus information.

>> and any case involving disclosure or reporting requirement. and then to justify the burden. >> so you do agree there is a right to privacy of association the government must overcome. >> and that disclosure reporting requirement and resulting in those burdens that they would show. >> mine included no reprisals of any kind the christmas card list with private information knowso reprisal with the name of efficiency and good government.fe

>> that would be very difficult because inso that situation there is a significant burden and likely to be a significant burden from public dissemination and then they have to come forward with the justification and it would be clear to me in that context what the interest would be. >> good morning miss fienberg i was asking petitioners counsel about the irs disclosure requirement. something that you emphasized in your briefing and you heard petitioners counsel efforts to distinguish the irs situation for my california is doing here and give you an

opportunity to respondbe to that. >> california collects schedule be for many reasons analogous to the irs but the formal matter with the constitutional analysis we agree with united states it is different because the irs rule is a condition of a tax benefit and thoseif rules are analyzed under a different framework and then to collect those that front is analogous because in both circumstances regulators have concluded knowing the identities of the small number of individuals who may be in a position to influence financial decisions are important for regulatory oversight purposes.

>> one thing we looked at and prior cases with individual rights with the states interest is how many had similar laws? you heard me ask general t for each has to assess their interest differently butut doesn't show it is essential to a states interest if if they have seen fit to regulate without infringing on the right to assemble or associate and how word you respond to that quick. >> it doesn't undermine the interest to articulate to make different judgments facing

different regulatory challenges and in california there is a very large population of challenges from state residents and they have made it a priority to protect state residents from diversion of charitable assets. and that is the basis on which california has concluded upfront collection of schedule b information is important to further the interest. >> good morning general fienberg let's assume california has a substantial interest to collect the information for policing potential fried and also assume the personal liberties lights on -en - right to association and right to speech are significantly

burdened how do i resolve those competing interests quick. >> justice barrett look at california's interest is commensurate with those burdens we think we have clearly shown that here given and theec use of schedule be and how that helps with other information. >> is that a tailoring requirement. >> and not talk about least restrictive alternatives but exacting scrutiny but does it preclude amines and fit requirement quick. >> that encompasses consideration and the degree it required is on the severity of the burden. they have not demonstrated such a burden with the respect

to all. >> let's assume to show a substantial burden and that california has a substantial interest your advocating a balancing test. it's a benefit to california? you are not proposing any type of means. >> weme do think there is a amines and fit analysis. we think here amines california has chosen as well tailored to the end. >> well tailored not narrowly terry tailored is the standard quick. >> that term narrowly tailoring can mean many i things in many context. so under exacting scrutiny and then your honors hypothetical with a significant burden, there would be ans necessary means and fit.

>> understand you think it is satisfied we look to alternatives to see what other less restrictive alternatives might be available that doesn't mean you choose the least but we consider other alternatives quick. >> yes it would be relevant consideration? that the state is acting that the means are sufficiently tailored. >> so with 250 organizations filing briefs with the disclosure mandate is that enough for the facia challenge? how many wouldld it take? >> so for the facia and validation but even the most liberal the challenger has to show a substantial number of

unconstitutional applications there is no such evidence here and as united states pointed out the amicus brief has indicated they support robust attorney general oversight because it promotes charitable giving by a trust in the charitable sector. >> one minute to wrap up. >> however the court resolves the claims there is no basis for departing from the established scrutiny standard to invalidate the requirement with respect to all registered charities exacting scrutiny is the standard for those policies and the standard requires the government to have a sufficiently important interest and to demonstrate actual burdens on first amendment interest are justified. just as the state has done

here. facia challenges are reserved for rare cases where the law is unconstitutional in many applications petitioners have not that that standard because i'm not shown california's requirement shows contributions in general or for substantial number of charities operating within the state. thank you. >> thank you mr. chief justice. facia challenges are less rare the court had a special for them talked about first amendment rights is where faciare challenges succeed it succeeded in stevens without the court asking how many groups would be interested in those videos or how many words are follow the general showing ever approach as opposed to publicize those videos. you can know the substantial

number of charities iniv many multiples of donors have the same interest of these petitioners to suffer the same as in validation and to make that judgment does justice barrett says some had associations with the pga and other innocuous that they recognize there is the inherent chilling effect it visibly illustrates just how pernicious the chill could be the threat to donors for that always is baked into the precedent and it's a recipe for facia and validation especially true i'm delighted to hear the united states in california agree that this is required we respectfully submit that ends the case that is undisputed california

prophylactic demand sweeps in schedule b of tens of thousands of charities annually and many multiples of those charities in terms of donors whose information is placed at risk in a threatening way. according to the record planned parenthood schedule b contains hundreds and hundreds of donors. the record also must place that they are never reading the schedule be unless and until it comes in from an internal whistleblower and at that point it asks for the schedule be pursuant to the audit letter it is totally gratuitous first amendment intrusion to insist on some sort of means is just positive of the case we only need to show a substantial number of unconstitutional applications even if it was five or 10 percent ofca all charities we still talk about thousands in many multiples so there's no

evidence in the record for that backlash i have to respectfully correctoo look at appendix 197 you will see the testimony for the donor bill of rights how important this principle is as a general rule and the amicus brief and justice sotomayor asked if this will truly keep the information private. i respectfully agree withit justice gorsuch. here california falls down disclosure is the least restrictive alternative. >> that case is submitted