PRI Files Amicus Brief in Closely Watched California Donor Privacy Case


SAN FRANCISCO – California-based nonpartisan think tank the Pacific Research Institute and the Project for Privacy and Surveillance Accountability filed an amicus curiae brief supporting American for Prosperity’s request that the U.S. Supreme Court hear a closely-watched case  — Americans for Prosperity Foundation vs. Becerra  — challenging the California Attorney General’s wholesale collection of donor information.

The U.S Court of Appeals for the Ninth Circuit had overruled the District Court’s determination that AFPF was entitled to First Amendment protection against the California Attorney General’s repeated disclosure of confidential donor information.  In its decision, the Ninth Circuit failed to comply with the standards the Supreme Court established in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) — applying the First Amendment’s core associational protection to bar Alabama from collecting the identities of members of the NAACP.

In its amicus brief, PRI and Project for Privacy and Surveillance Accountability argue that, the lax constitutional analysis by the Ninth Circuit that affords greater protection to commercial speech than to expressive association violates the Court’s longstanding precedents.

Amici also argue that the constitutional significance of the “compelling,” “substantial,” or even “important” state interest tests cannot rely upon the musings or mere desires of the Attorney General (whoever that may be) without the express support of a specific statute.

Finally, amici also argue that letting the Ninth Circuit ruling stand could have a chilling impact on freedom of speech and association in California, especially for those who hold views contrary to the dominant political power in Sacramento, noting that, “PRI’s Center for California Reform develops policy solutions frequently at odds with those favored by California, and accordingly most of its donors seek anonymity.”

Cautioning against the abuse of power by government officials who collect wholesale private donor information, the brief argues that, “at any given time, some groups will be out of favor with the current regime, and the temptation to abuse government power will always exist.  Such abuses can be aimed at persons who support opponents, opposing viewpoints, or even nominally friendly rivals. Even if the donor information being collected by the Attorney General is not publicly disclosed, it can easily and quickly become fodder for a politician’s enemies list.”

Continuing, the brief notes that, “the long roster of such abuses of power in the history of American government teaches that it is not unreasonable paranoia but constitutional prudence that should lead us to avoid, wherever possible, giving those in power weapons with which to intimidate or target those who disagree with them.”

PRI is represented by C. Dean McGrath, Jr. of McGrath and Associates, and Erik Jaffe and Gene Schaerr of Schaerr | Jaffe, LLP.

The Pacific Research Institute ( champions freedom, opportunity, and personal responsibility by advancing free-market policy ideas.  Follow PRI on Facebook, Twitter, and LinkedIn.

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Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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