and it does so for no good reason your honour's as a district court found following a full bench trial california's upfront collection of schedule b s does not further the state's law enforcement goals that finding is both dispositive and  forty six states today police charities without any such blanket demand california itself likewise did so for years your honors without any problems the schedule b s never find any legitimate use in lesson until a complaint comes in as happens for only a fraction of one percent of all charities even when reviewed schedule b s for all of their extreme sensitivity have only trifling utility california use them in only a handful of investigations over ten years the rare times when schedule b has future honors california has much narrower meet narrower means to obtain it namely a target audited letter audit letter to the charity of concerned indeed it's california's standard practice to issue precisely such an audit letter requesting schedule b s and other documentation from any charity it investigates at bottom californias justification reduces to a claim of law enforcement interest and having all schedule b s prophylactic lee warehouse before it really requests schedule  pursuant to any actual investigation that does not begin to justify the st amendment intrusions here posed as forty amicus briefs from hundreds of concerned parties spanning the spectrum agree because california's upfront suspicion this demand for donor information is not narrowly tailored as it must be under this court's precedents it is unconstitutional in all its applications and certainly in a substantial number of them we respectfully urge this court to hold it invalid mr shafer your main argument is that we should apply strict scrutiny to the disclosure requirements here but with respect to political speech which is we've held is of course at the heart of the st amendment and when we have an issue of compel disclosure we apply exacting scrutiny and doesn't it seem strange that when it's you're talking about charitable a strict scrutiny we for americans for prosperity foundation have no quarrel with that we think they make the argument well for that standard but but the prada imperative for the petitioners your honor is simply to stress that under any standard of exacting scrutiny that calls for narrow tailoring this law is this demand is facially invalid and due to be due to be struck down across the board and that was received i'm susan thank you for the correction but when it comes to tailoring w hat exactly is your understanding i think one of them means i think it's not well settled under the exacting scrutiny standard well i think shelton gives you the holding that your chief justice shelton specifically struck down the demand that teachers disclose their associations and he did so for lack of proper tailoring even while recognizing that there might be a substantial relationship to the understandable goal of protecting kids in schools and so you have the holding their one million articulate to standard to specifically in this context and i do analysis change in the way it wouldn't justice thomas and i do know that among the meek is supporting us has paid adjoining the brief by the non profit alliance that and so their work too can be controversial and depending upon one views of how poppy should be handled there can be controversy around that we might not have thought before two thousand and thirteen when california leaked the schedule b of the asian american for advancing justice that that would be especially threatening for the donors there but today in two thousand twenty one sad to say it could be a life or death issue that their identities have been disclosed think about religious charities think about medical organizations that may take views about masking about vaccinations in are very divisive times it's tough to identify with certainty a charity that is non controversial in those in those respects and even if there were that that sort of a charity deposit justice thomas there are understandable concerns religious convictions desire not to be loose privacy not to be harassed by solicitations an organization that has certain views by be accused of being a white supremacist organization or races phobic something like that and as a result become quite both of these petitioners explaining that precisely because there is such intensity of views and there is such a proclivity to vilify perceived enemies in our times that part of what puts so much it raises the stakes if you will and raises the concerns of reasonable donors for charities all across the spectrum so that they are but i also think this court's precedent recognizes the history in the common sense that says donors to associations are concerned about having their identities revealed that was true policing shareable fraud they they don't serve the tax function in california also congress has made a statutory judgment specifically for the i r s about a nexis human schedule b and the information listed in there and how it's to be used and how is it to be used justice thomas for federal tax collection so it's comparison potentially of the individual donors deductions on their federal tax forms and the i r s has nationwide jurisdiction consistent with the nationwide scope of a schedule be none of that is true for california thank you justice privacy of their giving to a charity interest of the charity in receiving those money here at least outweighs the interest of the state in having a law on the books that even if it never is actually enforced frightens people into behaving properly oka something like that what if we hold out can we distinguish campaign finance laws where the interest is even stronger in people being able to give anonymously can we distinguish laws that require them to disclose their givers how do would you distinguish if you would  and the other thing i would like to hear you destroy this is just for justice thomas brought up the i r s requires disclosure for tax purposes ok private school the california wants closure so it has a potential for finding out and that potential as i said might in and of itself discourage people from acting improperly in respect to turkeys so i'd like to hear the distinction if you want to make them between those two things i would just buy let me please take those in turn for the st question let me emphasize there is no law on the books in charities to then review a tiny handful when an extra no complaint comes that we are not here challenging the individualized requests for a schedule b from a particular charity which the a g is always doing if they're actually have reason to read a  schedule be so that the interest on the state side of it we respectfully submit is really quite negligible and you also are deluded to a deterrence rationale let me emphasize just as prior you won't find that rationale in the red briefs in california that is not only a post op justification for this law it's a post op justification that comes solely from the miki before this court and there's no not a shred of evidence to support that and of course there's no more reason to think a schedule be sitting in the a g s hands as part of a warehouse is any more deterring by virtue of sitting there it's only if it actually serves law enforcement purposes that it might be that and of course as you know it is on file with the i r s in any event so if there's a deterrent effect associated with filing it it rationally follows that it's already being s before california asked for two now for the i r s number one there's a statute from congress number two it is for tax collection purposes number three it has nationwide scope to it and number four there's a whole statutory duty designed just prior that has criminal and civil penalties for any violation of confidentiality there's no framework like that in california and in fact the record shows the opposite in terms of how likely these are to leak just does the record show about the number of concrete cases in which california has used this information prior to an audit justice alito we think there are five instances where that top and in the past ten years california seems to contend that there were ten the district court found five and the reason the district court found five is based on the testimony of the state's lead auditor steve bauman who had been serving as an auditor since eighty eight had been the lead author since two thousand and one was designated as california's witness on this critical subject matter and he in his experience justice alito had used it once he could think of one instance when he surveyed all the auditors they came up with five and six and then the a g s attorneys added to get to ten but that's the most they can get to and i would just commend to the court the relevant record excerpts on this point if you can see mr baumann testimony of j americans for pro california to demand you prove that you haven't already proved i don't know justice alito what you could possibly ask a charity in the position of these petitioners to prove that they didn't prove again they had expert testimony they  testimony from their officers they had instances of forensic threats and violence including death threats that were directed against the organizations or their proxies who are in the same position that donors would be and i would note justice alito that what california contemplates for it as applied challenge is very different from what you and the court contemplated in dovi read where it was one hundred and thirty thousand dollars plus petitioners who could have their st name an interest always you dictated together as we understand what california is requiring it's not just an extremely onerous standard that's essentially impossible to meet but you have tens of thousands of charities all having to go to court to try to vindicate their st amendment interest that's just not workable and it's not a satisfactory solution to the st amendment problem here posed we said t california had quite a few read in the past they now tell us that they've changed their practices and they are serious about confidentiality what should we make of that should we hold them forever to their past breaches yes we don't we think that they they fall down before you even get to the confidentiality problems having adequate confidentiality protections which they demonstrably lack is a necessary but not sufficient obtain it be audit letter so we think the confidentiality issues add to the record of unconstitutionality but there isn't and even as to those just focusing on them there's nothing california can do at this point that would convince reasonable donors and charities that have seen the dismal record of confidentiality go out to that now but have truly been fixed thank you justice sotomayor counsel if we were to apply the type of narrow tailoring you advocate i don't see how the public disclosure at issue would it joe would have survived until this court held that washington state's requirement that signatory surrender be publicly disclose was substantially related to its interests in protecting intellectual integrity but there the state secretary the state secretary of state department the redundancy checked signatures for fraud that doesn't seem to be anything like narrow tailoring it that's what we were applying though joe shouldn't survive if i may just sort of mire we think can go respectfully as categorically an opposite it is explicitly specific to me electoral context the court said so repeatedly in its opinion i assume that the vast majority of charities are not involved in fraud you're seeming to assume that the numbers of cases in which this is useful has to be dramatically large because charities are dramatically largely committing fraud but if i disagree with you number one number two the interest that california has in the schedule is in part there was testimony of these letters tipping off fraudsters and then hiding and then hiding their illegality so the audit the this this disclosure save some time because audit and subpoena letters take them a long time to get the information it helps them identify when a report comes in of problems whether it supports and further investigation and see it helps avoid that sipping that they're concerned about given that state interest if the state had properly kept this up nonpublic collection and let me emphasize to the court it is not only post hoc and i posit it is not genuine ok it is also contrary and i will explain why it is contrary to the factual findings that the district court made you can see in addition as appendix forty seven  you will find no witness who identified any specific instance where the tampering that supposedly concerns california occurred if the a g were genuinely concerned about tipping off charities they would never do your honor what they always do which is send an audit the outset of any investigation telling a charity that is being investigated and asking it to supplied to schedule be relevant along with all of the relevant documentation which charities always do and during the years and years the s of thousands of registered charities for not filing schedule b s no one ever complained about that or sought to change it it was a bureaucrat in the a g s office who said oh let's just for choir that all these been filed that did not come from audit stop that did not come from mother point if i may justice sotomayor it's implausible that the state is using schedule b specifically in this prophylactic fashion they have all the other ninety information including schedules l m n j that go to interested party transactions in kind very substantial majority of donors and a very substantial majority of charities are not concerned about that in fact they rather like public disclosure of their generosity  charities disclose their donors and perhaps in fact it's part of their strategy that the more disclosure there is the more fundraiser and association there is so anyway let's just take my facts as a given substantial majority of charities disclose themselves and don't mind disclosure as to that justice kagan this court and city of los angeles meet patel explain what the proper analysis is as to whether you have some voluntary compliance and not injection those are outside of the constitutional analysis we are not to show for today for just take my mice just take it as a stipulation that the great majority of donors do not mind disclosure by can you win a facial challenge on that premis yes because we're not here to enjoin those charities from disclosing their donors to california or anyone else they can continue to do so california can requested and they can comply with that request where they were i mean i guess there it is thought that a facial challenge he needs to show that you know some significant number of people in the world actually have this concern and otherwise you should bring in a supply challenge i thought that that was the whole point of the distinction between the two and i do rest on city of los angeles people tell which basically explain that that is not the correct analysis when you have some who will voluntarily comply and others who are resisting the demand can i ask one other question mr chambers i heard you say to justice alito that even if there were a guarantee that this information was never disclosed let's say that california had at least as good protections in place as the i r s does better maybe if that were so could you let a facial challenge yes because basically there's no statute that protects confidentiality facially you have the  again mr shafer i'm just stipulate and that the statute does exist that there is at least as good a protection as in the i r s context could you win a facial challenge yes justice kagan we respectfully submit you could because of  off and understand more clearly your thoughts on why officials challenge is appropriate here yes justice course which i think anything short of facial relief here will be a pyrrhic victory for charities and donors that are counting upon this court's precedents and principles to protect them and the reason for that is if you have to go to court and bring me as applied challenge and go through the hurdles that california and the one circuit would interpose even these petitioners who seven years justice courses with the benefit of experts and percipient witnesses and their officers and horrific experiences that were recounted in court we're still struggling to establish our st amendment rights and if every charity that in this position and has  concerns about exposure of their donors has to go down that same winding path then the st amendment will have lost before the next as applied challenge begins and we think analytically doctrinally in terms of precedent it's especially clear in the st amendment context that if we c substantial number of instances where the law is unconstitutional that warrants special invalidation here we think it is unconstitutional in all its applications when you have a charity that doesn't want to produce a schedule b and california has no narrow tailoring and if i may just justice course it's jay for two thousand and twenty two you have california officials specifically testifying they've never considered even a narrow alternative that is a constitutional defect that runs or process all of these cases what is your understanding of the relationship between exacting scrutiny and strict the court's not been perfectly clear about what one means relative to the other i think what is clear in terms of the interest from n w to pee versus alabama on forward it needs to be a compelling interest and i think it's also clear at least in the election context that we've been talking about categorically disclosure is at least presumed to be the least restrictive alternative but we indicate that satisfies really strict scrutiny and i think in the charitable context that we're talking about here it may be less clear exactly what the standard of scrutiny is but it is clear from this court's precedents and holdings that there is at least narrow tailoring that is required once the court requires that california's  demand cannot survive the th circuit was able to uphold it only by dispensing with narrow tailoring altogether and what would on in your view if anything stop california from issuing boilerplate requests to all charities disclose  schedule fees after this or that it is part of the tax collection process well the california attorney general has no authorization no mission to be collecting taxes that that's something that's completely separate in california but if you're positing bad faith we i think they'd have to satisfy exacting scrutiny in either of those instances hopefully you get a considered legislative judgment that balances the competing considerations here and make sure that there truly is narrow tailoring happening and all we ask this court to do in order to decide this case is stand by its precedents and principles states need to think hard and tread carefully before they infringe upon the st amendment rights that are at issue and i would reserve rights respectfully to challenge either of the programs that you just posited justice course that but they will have to withstand that schedule b s play in tax collections specifically and in individual donors exemptions because of the i r s is nationwide charter that corresponds with the nationwide scope of schedule because and because you have a strict confidentiality regime that exists from the statutes on down through careful protocols that are implemented on the ground as to the chill that too is different from the i r s it's not a demand by state law enforcement which is what's at the core of end of a c p versus alabama and it's  federal regulator pursuant to a tight nexus in careful statutory design is much more limited than one state just asking for this willy nilly and then other states essentially without limitation piling on by the dozens the same requests also just s is not in the business of posting submissions online the way that california is and has resulted in so many of these leaks quite predictably and last the i'd note the i r s has credited concerns about schedule b and is moving in the opposite direction of california they're asking themselves the tough questions about whether they really need it and is it really worth it california quite gratuitously is is fishing for schedule b s without seeing any real utility at least in the upfront collection of you agree i r s is doing is constitutional it's a different case just as bad now that we have not brought i think it has a stronger defense for the reasons we've discussed and all i would say about it is it will be subject to be too exacting scrutiny in our view and you can count on the united states to provide i'm sure works just as gavin i don't think it is powerful of the i r s is justification because it is a nationwide form that list donors nationwide very few of whom will be in california and of course california you know if you're thinking concerned stop it borders in a way that is not true for the federal government and the ira one very different question but quickly do you agree on the text of the st amendment that the freedom to peaceably assemble is distinct from the freedom to petition the anyone and to engage in any speech whatsoever but it was also the case that most of the students just shrugged and said that's fine and i'm not planning to you know demonstrator or picket and there was just a small percentage of people who are bothered by it would it be standing on their constitutional rights not those who simply succumb ok this is where it relates to justice cavanagh's question then that's because it's an invasion of speech directly so i'd like you to discuss a little bit how you conceive of this right is it an independent riot say the freedom to associate and the freedom to associate anonymously or is it simply i mean because showing shell makes sense if you're saying that this is simply to protect and this goes back at some eco spray if speech down the road so can you describe a little bit the nature of the right that's at stake here sure we think that there are multiple ones but let me start with this justice barrett if i may we think even the indirect risk rate would be subject to exacting scrutiny and would require a narrow tailoring for the reason set infringement on the right peaceably to assemble i can't argue that any better than the becket fund has but we agree with their arguments and also the right to solicit keep in mind that this is a condition to charities being able to speak as charities and hold themselves out  ted in this court precedents mcintyre tally and on down the line but also the right to assemble is the right to assemble privately and peaceably and when the government comes out tell us here donors are that is a direct infringement ok in california but being you know something that was the i think you describe that is subject to the executive swim i guess i don't understand why all of those things matter i would have thought state action a state action so if california which has a state wide mandate passes a statute and you know kagan asked you about keeping things strictly confidential keeps it strictly confidential it's done by statute and it only applies to donors in the state of california is that a different case would be read explain very well why the st thing in the analysis even after you have least effective alternatives establishing the election context it started with the state's interest and you had to credit that before it went on to the analysis of jail and whether there is a statute that reflects the considered legislative judgment that yes this is really warranted and it's really useful should make a difference to this court's analysis and i'd commend to you justice stevens footnote three in his concurrence and do we read it explaining that the strength of the state's interest goes up depending upon whether you have a considered  yes if i made mr chief justice we think the rule of law that decides this case is clear not fuzzy even if there may be semantic differences or questions of doctrine as far as for excuse me versus exacting scrutiny and least restrictive alternative versus narrow tailoring being required this court's holding in precedent are clue here in shelton and in criminal you unless those are overruled narrow tailoring at the very least at a bare minimum is required here this court has insisted upon it repeatedly and it is and has done so across the larger realm of st amendment scrutiny we don't know of heightened scrutiny in the st amendment context that does not call for narrow tailoring that does not say a state cannot be infringing upon these precious liberties gratuitously and disproportionately strict scrutiny is narrow tailoring test the court of appeals the supplies the correct legal standard to this reporting requirement the court also correctly rejected petitioner spatial challenge petitioners haven't shown that disclosure in the typical case involving the typical charity would expose donors to the risk of threats harassment or reprisals absent that showing of an across the board st amendment burden they provide no basis to strike down this law on its face and that petitioners evidence of burden focused on the in general how do you think and as applied challenge would work is a charity supposed to you know the schedule b is due to be disclosed are they supposed to attach an affidavit or something saying we're very controversial charity and we think if people knew who gave money to us they would be right sue association would be chilled this court has recognized mr chief justice in cases like buckley that there shouldn't be unduly stringent standards of proof for purposes of adjudicating an appetite challenge so i think that a charity in that circumstance that thinks that it donors are going to face their reasonable probability of rest or harassment could come forward with any kind of evidence that would bear on that question well what i mean do you mean sixty thousand or how many there are many there are i guess that's my question and when you say come forward with this i mean they filed a statement saying we're very controversial tyranny to prove that here a number of examples where  harassed and then somebody in the g s office which would make a judgment about it i just i just don't understand how it works i think it could work in two different ways the st there might be those kind of administrative procedures for that charity could seek anybody who wanted to do not have to disclose it would have to go into court or not necessarily if they want to take advantage of any administrative remedies that might exist and i think that or in cases like buckley and over three to recognize that there do have to be those meaningful opportunities to  we think that the relevant information would pertain to whether there is actually out risk of harassment arrest or reprisals so that could turn on things like hostility to the organization itself any documented record of those kinds of threats against the organization its members properly measure the chilling effect based on this kind of evidence which we think does create a serious concern in this case justice thomas thank you mr chief justice so to speak about chilling effect what role would accuse asians that a particular organization has races or is white support as white supremacy well create that kind of chilling concern if the organization can show that it triggers the probability of a press or harassment but that is clearly distinguishable from the case of the typical donation to the typical charity that isn't at all controversial but doesn't trigger that kind of public backlash and as justice kagan noted many charities already disclosed the identities of their donors many sell their donors identities to rd parties so there's just no basis in this record to conclude that in the case of the general application of this disclosure requirement there's going to be anything like the risks associated with organizations but instead have provoked that kind of public debate and i would just emphasize as well that in that respect we think the record here is on all forth with the record the court confronted and overseas read because they are the court recognize that although with respect to particular referendum petitions there might be risks of harm arising from disclosure there was no basis to think that that would apply across the board in each and every case right your reaction to somewhat related  what this court has recognized and considering claims like that is that privacy may in many cases be a special pet the effect of exercise of association all right but it's not invariably the case that that will be felt with what the court has said in cases like buckley is that there's a possibility that a disclosure requirement will interfere with the th the ation in so far as privacy might sometimes be important to protect the offense the ational right but that's exactly why the court has adopted exactly scrutiny at the proper framework for measuring these claims to ensure that there is an actual burden on st amendment right produced by disclosure requirement for purposes of assessing whether the state laws ballot thank you just aspire i'd like to know what you think of the argument raised in several of the mikey briefs anyway  this case is really a stalking horse for campaign finance disclosure laws what's the difference if we hold in your opinion the government if we were to hold against you and for the broader claims the rule it is true in this case that the petitioner brings how would you distinguish disclosure in the campaign finance context the ri t issue you heard justice thomas very eloquently explain that right and it would certainly seem to apply as much and the need in the political form money is involved in both cases and the need to give anonymously would seem strong and you could argue about the government and proved so if brought interesting exists here how would you and when and how would you distinguish conclude that there aren't other alternatives that could equally be as effective and pursuing those goals but i want to be clear that we think that the same standard of review applies to disclosure requirements across the board and this distinction between electoral cases and electoral cases is illusory because the relevant point that this court has recognized is that disclosure requirements are subject to exacting scrutiny because they only affect protective association all right indirectly and they don't present the same risk that government seeking to suppress particular ideas or viewpoints are tried or a type of association and for that reason they should be subject to a less stringent standard of review which urged the court to adopt and apply that framework to this disclosure requirement as well or other proof that is donors will be chilled by the disclosure i'm not aware of any evidence about that in the record and ultimately these kinds of administrative remedies i'm drawing a parallel to the campaign finance nail for more than six years in order to avoid potential public disclosure of its list of donors to the extent they're pursuing an asse applied exemption i think that that's so but i don't think there's anything wrong with that and  the corresponding rule that would facially invalidate the slob would mean that in the mind run case where there is no st amendment burden at all nevertheless the state would be precluded from regulating and pursuing its important interest in policing charitable fraud and best way do you think that would provide adequate protection for st amendment rights do you doubt that donors to organizations that take unpopular positions on hot button issues have reason to fear reprisals that those donations are made public do you think that's a legitimate fear and her current atmosphere or do you think it's paranoid you know i think that that can produce a chilling effect in individual cases but i don't there's any indication in this record that that kind of chilling effect chris created across the board with respect to the average person donating to the average charitable organization and there is simply no evidence here to conclude that individuals would stop donating to charitable organizations if this reporting requirement to the state were enforced in the mind run case and let me ask you about your position with respect to this particular case because i found it a bit puzzling you say that the case should be remanded so the th circuit can consider quote significant the harm would be to petitioners contributors for their identities became publicly known or you know what the record here shows the district court and for the trial and it found ample evidence that the contributors to the petitioners would be harassed and the brief while by the american civil liberties union and the n w c p legal defense fund and other groups says quote petitioner so shown that people publicly affiliated with their organizations have been subjected to threats or rassmann or economic reprisals in the past and are likely to be showed what more do you think these petitioners would have to show but i think the way that that kind of evidence after that in this case which of course involves a nonpublic disclosure requirements isn't measuring the chilling effect for the reason that we think that the court of appeal was incomplete and its analysis is because although it concluded that there was no future prospect at risk burden to closure i didn't consider the way that the past history here unfortunately widespread public disclosure my factor into a prospect of donors shell with respect to whether to continue with this meeting with petitioner earth and we think a donor with think about not just the risk of future that the th circuit you're seeing the th circuit didn't answer and its search and the question you think the th circuit didn't answer is to try and do donors have a reasonable fear given the states pass disclosure problems is it reasonable for them to be true is that what you're asking is that a factual question or is that a legal question that we should answer that i think i'm next question and if it's around that court has recognized that makes a question should generally be answered no though by looking at how the legal standard applied to the particular acts now let me tell you how i what i've been struggling with in this case and perhaps you'll tell me if i'm struggling rightly or wrongly given arse what you believe our exacting scrutiny standard requires it seems to me that what we look at st is can a disclosure hurt a party we don't look generally we asked three questions but if i take them backwards we look at is there a potential burden and i think it goes without dispute in this case that the petitioners have shown that a disclosure of their donors could harm them i don't think you dispute that correct if it were a public disclosure that's the point now the question is if it's not a public disclosure was swap purports to be we would balance whatever the weather the state has a substantial interest not a compelling interest but a substantial interest in this information and i guess the other side is saying given the number of times we use it even if it's small ten times this is a substantial interest it helps us in our law enforcement so the issue really is the state proven that is truly not it's really going to keep this private is about the bottom line i think that is a critical component of the inquiry here and we agree that there is a big difference between public and not public disclosure requirement because the court nonpublic reporting reduces the risk because there will be any harassment of reprisals from rd parties and valve but just pulling back into it to provide our view on the overarching legal question that you were referring to justice at my door we questions come up about when a facial challenge is appropriate and when on the contrary it's not and and a person should be remitted to an as applied challenge and as you answered that question i'd like you to answer  just as barrett's hypothetical which is that you know it would seem irrelevant that lots of people don't care about a blanket restriction on speech so why is that any different here so i'll begin with that hypothetical and the big difference with the situation to test if there was positing as that that would have been a direct prohibition of speech and that creates all the concern that maybe governments trying to suppress you point your ideas and trigger strict scrutiny in the ordinary course disclosure requirements are different because this court has recognized that they may have that beach and associations but they do so only indirectly and so it's necessary in every case to take account of the actual burden that presented with respect to st amendment right and i think that that explains why a facial challenge should not succeed here because there is no evidence in the thread heard that there is any kind of widespread the national bird and the typical application of this statute to that typical person contributing to a charity the evidence the petitioners had focused on the harm to their own donors we agree that that evidence is a cause for concern i just like and over this read there is no reason to generalize here i think just that the average person contributing to a charity would be similarly situated with respect to the car and i heard some questioning at that well i think that that would run counter to this court longstanding precedent concerning disclosure requirements the court and it has again and again characterize those as interact and that's the reason that the court applied a different level of scrutiny  not the least restrictive alternatives test some people say well you have to be narrowly tailored what do you think of that and what's the proper level of tailoring in this context we think that the problem with trying to label it narrow tailoring is that that immediately connotes either the strict scrutiny least restrictive means test or at least to suggest that there is some kind of universal fixed means and that formulation that applies in this context and instead the way we beat this court's precedents exacting scrutiny requires that the strength of the governmental interest must reflect the seriousness of the actual burden on st amendment right that incorporates in our view an element of flexibility in the means and an analysis that's intrinsically tied to that actual st amendment burden and the more significant the burden that the more stringent the showing the state will have to make that it has a sufficiently strong interest in regulating through its chosen mean thank you general sense of course which good morning general i guess on what i want to poke a little bit further into this the facial challenge question and your responses so i understand your response that it sure you have to come forward with some evidence for this likely to be harassed or that it's donors might but doesn't that kind of put the cart before the horse or in for the st amendment analysis because you're placing donors and organizations and so the argument goes is in the an enviable position of that courts have to ensure that they are not holding organizations to underlay stringent burdens of proof and i'd i would point the court actually for this court and allison shelton which mr shafer repeatedly relied on there i understand those are nice words but  i'm looking for something a little more concrete general how would you protect if you grae as i understand you to do it justice thomas has the right to association includes a right to privacy in that association how do you protect that when you're requiring donors and organizations to come forward to prove that they have been arrest put to be clear and i want to make sure that i'm being absolutely clear on this point what the court has said is that privacy in association may sometimes be critical to the impact of exercise of the right but that's not invariably the case now with respect to the actual evidence that organizations need to come forward ultimately they don't need to show that their offense is to pick incidents of harassment tied to the particular disclosure requirement issue instead the court has said that government could compel private organizations to hand over their i don't know some examples in the briefs of saw were their holiday card list so that it can ensure the accuracy of mail delivery  or young person's a list of the people they dated so they can do a survey on marriage patterns what would be wrong with it in your view those sorts of things at least unless they come forward and show that they've been a very likely to be as a result of this disclosure why why is that the put another way why why would it be wrong to think this is a problem of compelling speech well i think that the big difference but those hypotheticals is they would likely present very different balance of interests with respect both to the burden and to the state interest and so just taking each of those and turn with it in each case you are compelling speech from a party who doesn't wish to why is not a problem to be clear no party here is suggesting that these disclosure requirements should be analyzed under compelled speech press that i'm asking you whether whether they should be i don't think they would succeed if they were that the court is held in cases like daughter that so long as what's being compelled is purely factual chief justice and good morning general clark are there some impressive array of amicus briefs supporting petitioners here across the ideological spectrum and one of them is from the american civil liberties union and the m w c p legal defense and educational fund in the human rights campaign among others and that brief says i'm going to quote you something and then get your reaction to it quote a critical corollary of the freedom to associate is the right to maintain the confidentiality of one's so she sins of some a strong governmental interest and disclosure that the state could categorically demand disclosure of associational information the ability of citizens to organize to defend values out of favor with the part of that very well at the end to argue that this disclosure requirement should be treated as a public disclosure requirement so i just want to bite at the outset that these are you in the end up least the people felt recognize that there is a critical distinction between public and on public disclosure council of nonprofits with twenty five thousand member organization and what those brief address is that there is a critical role to be played in having the state police charitable rod to ensure that donors have competent in charitable organizations which it increases  willingness to donate and therefore the pursuit of them are like that for a turning of the text of the st amendment do you agree that there is a right of the people peaceably to assemble i certainly agreed that the assembly provision is an independent birth amendment right but of course here no party is pressing that and in bed that the end focused on the right to a fifty eight and then in terms of applying stricter exacting scrutiny sometimes those words really are just asking the question not answering the question you're asking whether the state has an interest sufficiently compelling or important to warn or exception to a constitutional right or to speed up the contours of the rights into things the court has often look to in applying to state laws say in the free speech context and others is one whether the right of the exception is historically recognized that a right has coexisted with y recognized exception this kind of i want to get your response to that and nd what do you say about the fact that this right in this california interest can't be all that important so the argument goes because forty six other states have not them can choose to devote different levels of resources the problem they can choose to regulate in different ways and have different priorities like california has shown is that it prioritized this issue of charitable brought in that they've devoted far more resources than many other eight and i think though because of the sheer number of charitable organizations that the looked at in the state and the amount of their donations which are somewhat unique in number and prompted california to act in the way so i think the relevant question isn't how it compares to other faith but whether it has  ladder i have a question about tailoring let's say that i agree that exacting scrutiny applies in the th circuit didn't really engage in any kind of tailoring in korea i think what it did could fairly be described as a balancing balancing of interests and you kind of demurred a little bit when you were asked about what level is and any of tailoring is required so do you agree there has to be some kind of means and or not yes we do think that there is a means and that we think that it's incorporate d into the requirement that the strength of the governmental interests have to rest but the seriousness of the actual burden on st amendment rights and so that will vary depending on the contact or the circumstances based on that showing with respect to the st amendment burden and again that the more serious the as explained by those would be less effective at allowing california to make use of schedule will be used at the outset in responding to complaints before to formally open an investigation and finding that to all concerned and other concerns related to having that information at an early stage so i don't think it's accurate to suggest that there was no means and that analysis in the lower court opinion will general let me read you this language from show and tell me if you think that this you would agree that this is the standard we should apply when thinking about means fit there is a court and we said that in evaluating means and we struck down the law because we concluded that the government's purpose here is the quote cannot be pursued by means that broadly stifle personal liberties when the and can be more narrowly achieved would you be satisfied with that standard i think that standard applies based on a showing of the national st amendment burden and that the physically the context in which this quarter to why did that language in shelton is said that the disclosure requirement there would chill every o in pressing for as applied challenges here are talking about whether this record adequately establishes that the petitioners have reason or their donors have reason to fear retaliation what is the petitioners here had there with respect to minor political parties that if there's a new political party that doesn't have for example and a history of complaint to then it can rely on evidence with respect to related organizations or organizations that share similar mission for the court is that the place of knowledge this concern and made clear again theory to be different saying california and alabama what evidence is the court supposed to look to political climate of the particular state i don't think that it should be limited in that in that way and again i don't think that  should be an underling narrow inquiry of the so i think that the petitioner should be able to come forward with any evidence of harm that's occurred anywhere for purposes of trying to show that there would actually be a chilling effect in this case thank you general  side like to focus on the legal standards that we think the court should apply here the course cases make clear that exacting scrutiny applies to reporting requirements that the standard does not contain at least restrictive means test and that a facial challenge should be rejected when as here there is no basis to conclude that disclosure poses the risk of threats harassment or reprisals and nearly all of the law applications but the other relevant legal standard is that organizations need to have a meaningful opportunity to claim as applied exemption from compel disclosure when it was subject their particular donors to harassment or intimidation petitioners presented evidence of these kinds of harms and we think the court of appeal should have considered that evidence in measuring the chilling effect of this law as applied we claims of facial challenge and as applied on those claims are reviewed under exacting scrutiny the standard this court has long applied to reporting and disclosure requirements to prevail on their facial claim petitioners must demonstrate that california schedule b requirement is unconstitutional in all or at least many of its application but petitioners evidence centered it only on their own organizations they did not show that california is confidential collection of the same information the charities already provide to the i r s children association oil interests in general or for a substantial number of charities in the state at the same time the state from collection of schedule b s is substantially related to important oversight and law enforcement interests schedule beazer use routinely by state charity regulators to evaluate complaint when examined with other documents a schedule b how to best gaiters determine if there is a concern with self dealing diversion of charitable assets or gifting kind fraud that warrants a formal investigation of titian's as applied challenges center on the claim that submitting their schedule b forms to state charity regulators will lead to threats and harassment from the public but schedule b s are confidential under california law and the state has bolstered its confidentiality protocols and response to past lapses there is no reasonable probability of harm sufficient for as applied relief i welcome a court question i guess i want to follow up on that point you were just making general if assume you have a charity that supports a cause that is controversial and a number of organizations people said they will make life miserable for anybody who supports that charity you know they can outside their house they'll boycott anybody doing business with them if that person came to you and said i want to give a donation but i want to be sure that california will not disclose this it will not get out can you give me one hundred percent assurance that that will not happen what would you tell that person the church of justice i don't think any organization to guarantee perfection but here the state has promulgated center's petition appendix those efforts commendable and so we don't think there's any probability that those harms would come to pass in light of the nonpublic nature at this requirement i'm sorry i meant if there's no your honor the district court discounted uses of this day schedule be for evaluating complained although it did state at fifty six a lot of centers petition appendix that it did not doubt  that attorney general's office used schedule b it did not require that a sufficient because then if the arrow to use a schedule b that was not strictly necessary or why there were not any other counsel i'm interested in your discussion of the public disclosure laws the fact that you would have those internally and not disclose it to the general public but through you know here with that in my think it would be reasonable for someone who wants to make a substantial contribution to an organization that has been accused of being their contribution will be kept confidential on those concerns are certainly relevant for consideration of an as applied challenge but in any as applied challenge the question is is there a reasonable probability of the rest harassment or reprisals which would turn on one of the risk that your honor noted about those kinds of harassment but also the risk of public disclosure  of calculus do you include the possibility of an intentionally by someone who happens to disagree with or dislike that particular group someone would consider the possibility carefully tailored statute the same thing i thought the answer might be mr smith the charity goes and buys 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 will be very careful before they get into that fix that's cold you know prevented it but you don't make that argument you made in the st so what's the answer to the suppliers and why didn't you make the nd argument there is some that the from collection of schedule b assist a regulators and evaluating complaints to detect precisely the sort of self dealing concerns that your question is premised upon when with from collection the state is able to evaluate complaints look for those kinds of situations decide whether a formal investigation is needed and if so focus the investigation on the relevant concerns the alternatives posited by my friend would not be sufficient to meet those needs the state would not have the ability to  evaluate to see schedule b information in connection with other information to decide if an investigation is even needed a lot of letters and subpoenas after the fact lead to delays they also lead to considerable burden on charities and it is not clear that petitioners or other charities would even provide the schedule be in response i thought i heard my friend say that any routine request for the sort higher and stronger interest would be needed we don't assert an interest in public disclosure that there could be circumstances where it could serve an interest but we don't assert any such interest here are you willing disclosure because there have been such massive confidentiality breaches in hell for me from the perspective of the donor that may make sense of donor may say this is a state that has been grossly negligent in the past no science sions against anybody who's this information i have to assume that this may happen again why isn't that a reasonable way to look at this i don't think even the  later at sixty two way of the law center petition appendix the district court said that the attorney general's office efforts to rectify past lapses and to prevent them in the future work commendable  reporting requirement so there is no reasonable probability that that sort of threat harassment and reprisal from the public would come to pass but we agree with the united states that as a general principle of law there is a flexible evidentiary standard and challengers to reporting or disclosure requirements can draw from a wide range of evidence and order to it well my time is up and so your answer is g concerns related to threats harassment and reprisals from the public that they would not be able to satisfy the standard because there isn't a reasonable probability that that information that given the preaches the breaches in the past that a reasonable person don't or might not have that much faith in the eighty's office and that it would chill them from making donations and that's one of the only necessary if you're going to make it public and you're right the district court has to determine whether your office has a reputation or a reasonable possibility that it's going to engage in political retaliation and leak it secretly eccentric cetera but what do we do with that finding that given your past breaches you have essentially turned this into a public disclosure case there's my or i read the district court decision as you know commending the attorney general's office for its changes saying the attorney general's office for at that point not being able to guarantee cut confidentiality we don't think that sort of guarantee can be the standard and i will just give you an example and i think  someone said this earlier and i have been the other side how hot is the requirement was that you handle liver this list to somebody in the a g s office who's going to put it in a locked file is that a guarantee better than putting it on the internet with all of the anti hacking procedures you have in there is a normal human fe about hacking that they can hack anything in that hypothetical it's true that general concerns about hacking would not be president but larry there is a serious question if someone came in and argued that they were fearful on general hacking we probably under clapper would say they don't have standing to can't claim a injury but go ahead with respect to hacking just as my or it is a present risk in modern society that no system can have a one hundred percent safeguard against but the important point her indeed but the important point here is that petitioners did not bring forward evidence suggesting that even in light of that background risk that charities in general or at least a substantial number of them were killed in their contributions and indeed the and mika's freed from cal non profits and the national council of nonprofit said that robust attorney general oversight actually promotes district court and its findings are reviewed only under a clearly erroneous standard and the district court said two things it said there was a pervasive recurring pattern of inadvertent disclosure by california and it said that the donors would likely be subject to threats and harassment if their affiliations were disclosed so given those two findings given a clear error standard how can you win on the as applied  challenge just as kagan we think that the district court's ruling was premised on an observation that california could not guarantee constitution confidentiality even after  protocols if the court disagrees with the th circuit approach to considering the district court characterization of the confidentiality measures the appropriate course would be the united states about the relevance of your new regulation you know usually we don't allow parties govern the government to come in and say you know we've reformed our ways we've changed our practices we'll do better in the future you should give us a pass so why isn't that what you're asking for here just as kagan the read the regulation codified existing practice in the attorney general's office in an existing  members and shows that they have been in the past subject to such threats they need to do anything else in your view is there a requirement that  showed that those threats of lead to channel or is it enough if they show threats and harassment in general it with respect to public disclosure requirements the question isn't whether there's a reasonable probability that the threats harassment or reprisals that would occur and if they do it is reasonable to conclude that that sort of significant report repercussions that would  arise would demonstrate a deterrent for associations or making contributions to charity because of the significance of those sorts of consequences thank  the morning if the st amendment protects the right to sue seek privacy why do we need to consider rassmann just of course it's this court has said repeatedly including  includes the right to do so privately right the court has recognized that privacy is a concern where the disclosure of association  information would lead to deterrence of associations because of the reactions that the information would prompt in others so could the government on that account require  private associations to reveal any manner of information their christmas card list their their dating lists or whatever so long as there is no evidence or at least not i think it was a reasonable probability of reprisal of course and i think in those situations it would be much more difficult for the government to justify st because there would be well there's always some good efficiency argument i mean we've heard about efficiency in the ministration here i'm sure there's a fission see in post office services or census information so let's suppose the government can come up with something that sounds like that in any case involving disclosure or reporting requirement the government must come forward with an interest to the fish and really important to justify the burden and interview so you then you do agree that there is this right to privacy of association that the government must overcome where where a plaintiff demonstrates that disclosure reporting requirement is in fact resulting in the kinds in the kinds of burdens that your hono reprisals so could the government come in in the name of the fish and seeing the government come in and record disclosure of those kinds of lists i think that would be very difficult because in that situation there would be a significant burden on intimate association there would very likely be a significant burden resulting from the public dissemination of that kind of information and as a result the government would have to come forward with  reasons and now i guess to why the i r s does but as a formal matter regarding the constitutional analysis we agree with the united states that it's different because the i r s rule is a condition of a ta s because in both circumstances regulators have concluded that knowing and number knowing the identity is a very small number of individuals who may be in a position to influence the financial decisions of a charity or are relevant and important for regulatory oversight purposes one thing we've looked at of course is looked at in prior cases involving individual rights had a good answer about it if she has to assess it's interesting from way but it still doesn't show that it's not really all that essential to a state's interests of forty six other states fit to regulate without infringing on the right to assemble or the right to associate in this same way just how would you respond to that i don't think it is undermined california's interest for many of the reasons that the united states articulated different states have made different judgments regarding their priorities and different states face a very different regulatory challenges in california there is a very large population of charity is to listen billions of dollars from state residents and the state has made it a priority to protect state residents from diversion of charitable asked and deception and that is the basis on which california has concluded a collection of schedule be an information is important for furthering its interest good morning general feinberg let's assume that i think that california has a substantial interest in collecting this information for purposes of policing potential fraud and let's also competing interests there you would look at whether power twenty years in interest are commensurate with those burdens we think we have clearly shown that here given means and and the degree of that required will turn on the severity of the burden here a decision or have not demonstrated such a burden with respect to all what i told you to assume that i said that they did let's assume that i think these petitioners have shown a substantial burden and i'm granting that california has a substantial interest so you're really advocating just a balancing test right like does the burden outweigh the benefit to california you're not you're not proposing any kind of means and tailoring in court no we do think there is a means and that analysis and we think here that means california has chosen are well tailored to  see what other less restrictive alternatives might be available and it doesn't mean you have to choose the least one we would consider other alternatives is that right there it would be a relevant consideration and thing whether state has facial invalidation but even the most liberal is a facial challenge or has to show a substantial number of unconstitutional applications there is no such evidence here and as the united states pointed out and make us brief in support of respondent has indicated that they support robust attorney general oversight because it actually promote charitable giving by promoting trust you mr chief justice however the court resolves the as applied claims there is no basis for departing from the established exacting scrutiny standard or invalidating california's requirement with respect to all registered charity nd scrutiny as the appropriate standard for judging disclosure and reporting policies the standard requires the government to have a sufficiently important interest and to demonstrate that actual burdens on st amendment interests are justified just as the state has done here facial challenges are reserved for rare cases where a law is unconstitutional and all or many of its application petitioners have not met that standard here because they have not shown that california has requirement chills contributions in general or for a substantial number of charities operating within the state thank you  st amendment rights is where facial challenges succeed and you succeeded in stevens in your s p stevens without the court asking how many groups out there would be interested in animal crush videos and how many would just follow the general showing of reproach that was reflected in the statute as opposed to wanting to continue to publicize those videos you can know as you sit where you sit that in fact a substantial number of charities and many multiples of their donors are going to have the same interests that these petitioners do and suffer the same constitutional deprivation absent facial invalidation and that's the same judgement that the court made in shelton making that predictive judgment as justice barrett put it as to teachers some of whom might have had associations with the p t a and other innocuous associations but the court recognized that there would be an inherent chilling effect what we have in our record vividly illustrates just how pernicious the chill can be just how real the threat to donors is but that's always been baked into this court precedents and it should be remain bacon and it's a recipe for facial invalidation that's especially true your honour's because i'm delighted to hear both the united states and california agreeing today that means and if it is required once it is required we respect that and the case it is undisputed that calaf california's prophylactics suspicion list a man sweeps in the schedule b s of tens of thousands of charities annually and there are many multiples of those charities in terms of donors whose information is being placed at risk in this very threatening way and according to the record planned parenthood schedule b for instance contained hundreds and hundreds of donors that were on there the record also makes clear and my friend  deny that california's never reading the schedule b s in lesson until the next general complaint comes in from a news story from an internal whistleblower from an aggrieved donor and at that point if it thinks that there is a serious complaint it's asking for the schedule be pursuant to an audit letter so this is a totally gratuitous st amendment intrusion and continuing to insist upon some sort of means and fit is dispositive of the case and dispositive it patiently especially because we need to only show a substantial number a substantial number of unconstitutional applications even if you thought it was five percent or ten percent of all charities we're still talking about thousands and thousands and many multiples in terms of the donors the notion that there's no evidence in the record of general back of general backlash and concerns among charities and d have to respectfully correct if you look at the thomas more law center's joint appendix one hundred and ninety seven you'll see professor services testimony about the donor bill of rights and how important this principle is to charities as a general rule and  as your honour's have today justice sotomayor asked whether this whole question is whether the state will truly keep this information private we don't think it is i respectfully his agree with justice gorsuch that does put the cart before the horse the court in dover you read started by analyzing the state's interest and whether it