FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICANS FOR PROSPERITY

FOUNDATION,

Plaintiff-Appellee,

v.

XAVIER BECERRA, in his

Official Capacity as Attorney

General of the State of

California,

Defendant-Appellant.

No. 16-55727

D.C. No.

2:14-cv-09448-R-FFM

AMERICANS FOR PROSPERITY

FOUNDATION,

Plaintiff-Appellant,

v.

XAVIER BECERRA, in his

Official Capacity as Attorney

General of the State of

California,

Defendant-Appellee.

No. 16-55786

D.C. No.

2:14-cv-09448-R-FFM
2 AFP V. BECERRA

THOMAS MORE LAW CENTER,

Plaintiff-Appellee,

v.

XAVIER BECERRA, in his

Official Capacity as Attorney

General of the State of

California,

Defendant-Appellant.

No. 16-56855

D.C. No.

2:15-cv-03048-R-FFM

THOMAS MORE LAW CENTER,

Plaintiff-Appellant,

v.

XAVIER BECERRA, in his

Official Capacity as Attorney

General of the State of

California,

Defendant-Appellee.

No. 16-56902

D.C. No.

2:15-cv-03048-R-FFM

ORDER DENYING

PETITIONS FOR

REHEARING EN

BANC

Filed March 29, 2019

Before: Raymond C. Fisher, Richard A. Paez,

and Jacqueline H. Nguyen, Circuit Judges.

Order;

Dissent by Judge Ikuta;

Reply to Dissent by Judges Fisher, Paez, and Nguyen
AFP V. BECERRA 3

SUMMARY*

Civil Rights

The panel denied petitions for rehearing en banc on behalf

of the court.

In its opinion, the panel held that California Attorney

General’s Service Form 990, Schedule B requirement, which

obligates charities to submit the information they file each

year with the Internal Revenue Service pertaining to their

largest contributors, survived exacting scrutiny as applied to

the plaintiffs because it was substantially related to an

important state interest in policing charitable fraud.

Dissenting from the denial of rehearing en banc, Judge

Ikuta, joined by Judges Callahan, Bea, Bennett and

R. Nelson, stated that the panel’s reversal of the district

court’s decision was based on appellate factfinding and was

contrary to the reasoning and spirit of decades of Supreme

Court jurisprudence, which affords substantial protections to

persons whose associational freedoms are threatened. Judge

Ikuta wrote that under the panel’s analysis, the government

can put the First Amendment associational rights of members

and contributors at risk for a list of names it does not need, so

long as it promises to do better in the future to avoid public

disclosure of the names. Judge Ikuta wrote that given the

inability of governments to keep data secure, the panel’s

standard puts anyone with controversial views at risk. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 AFP V. BECERRA

Responding to the dissent from the denial of rehearing en

banc, Judge Fisher, Paez and Nguyen stated that the panel’s

decision to apply exacting scrutiny was consistent with

Supreme Court precedent, Ninth Circuit precedent, and outof-circuit precedent. The panel noted that the two circuits

that have addressed the issue both have held that exacting,

rather than strict scrutiny apply and that the nonpublic

Schedule B reporting requirements satisfy the First

Amendment because they allow state and federal regulators

to protect the public from charitable fraud without subjecting

major contributors to the threats, harassment or reprisals that

could flow from public disclosure.

ORDER

Judge Paez and Judge Nguyen have voted to deny the

petitions for rehearing en banc and Judge Fisher has so

recommended.

The full court was advised of the petitions for rehearing

en banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 35.

The petitions for rehearing en banc (Nos. 16-55727 and

16-55786, filed September 25, 2018 - Dkt. 106; and Nos.

16-56855 and 16-56902, filed September 26, 2018 - Dkt. 67)

are DENIED.
AFP V. BECERRA 5

IKUTA, Circuit Judge, with whom CALLAHAN, BEA,

BENNETT, and R. NELSON, Circuit Judges, join, dissenting

from denial of rehearing en banc:

Controversial groups often face threats, public hostility,

and economic reprisals if the government compels the

organization to disclose its membership and contributor lists. 

The Supreme Court has long recognized this danger and held

that such compelled disclosures can violate the First

Amendment right to association. See, e.g., NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

For this reason, the Supreme Court has given significant

protection to individuals who may be victimized by

compelled disclosure of their affiliations. Where government

action subjects persons to harassment and threats of bodily

harm, economic reprisal, or “other manifestations of public

hostility,” NAACP v. Alabama, 357 U.S. at 462, the

government must demonstrate a compelling interest, id.

at 463; Bates v. Little Rock, 361 U.S. 516, 524 (1960), there

must be a substantial relationship between the information

sought and the compelling state interest, Gibson v. Fla.

Legislative Investigation Comm., 372 U.S. 539, 546 (1963),

and the state regulation must “be narrowly drawn to prevent

the supposed evil,” Louisiana ex rel. Gremillion v. NAACP,

366 U.S. 293, 297 (1961) (internal quotation marks omitted)

(quotingCantwell v. Connecticut, 310 U.S. 296, 307 (1940)).

This robust protection of First Amendment free

association rights was desperately needed here. In this case,

California demanded that organizations that were highly

controversial due to their conservative positions disclosemost

of their donors, even though, as the district court found, the

state did not really need this information to accomplish its
6 AFP V. BECERRA

goals. Although the state is required to keep donor names

private, the district court found that the state’s promise of

confidentiality was illusory; the state’s database was

vulnerable to hacking and scores of donor names were

repeatedly released to the public, even up to the week before

trial. See Ams. for Prosperity Found. v. Harris, 182 F. Supp.

3d 1049, 1057 (C.D. Cal. 2016). Moreover, as the district

court found, supporters whose affiliation had previously been

disclosed experienced harassment and abuse. See id. at

1055–56. Their names and addresses, and even the addresses

of their children’s schools, were posted online along with

threats of violence. Some donors’ businesses were boycotted. 

In one incident, a rally of the plaintiff’s supporters was

stormed by assailants wielding knives and box cutters, who

tore down the rally’s tent while the plaintiff’s supporters

struggled to avoid being trapped beneath it. In light of the

powerful evidence at trial, the district court held the

organizations and their donors were entitled to First

Amendment protection under the principles of NAACP v.

Alabama. See id. at 1055.

The panel’s reversal of the district court’s decision was

based on appellate factfinding and crucial legal errors. First,

the panel ignored the district court’s factfinding, holding

against all evidence that the donors’ names would not be

made public and that the donors would not be harassed. See

Ams. for Prosperity Found. v. Becerra, 903 F.3d 1000, 1017,

1019 (9th Cir. 2018) (“AFPF II”). Second, the panel declined

to apply NAACP v. Alabama, even though the facts squarely

called for it. See id. at 1008–09. Instead, the panel applied

a lower form of scrutiny adopted by the Supreme Court for

the unique electoral context. See Buckley v. Valeo, 424 U.S.

1, 64, 68 (1976). The panel’s approach will ensure that

individuals affiliated with controversial organizations
AFP V. BECERRA 7

effectively have little or no protection from compelled

disclosure. We should have taken this case en banc to correct

this error and bring our case law in line with Supreme Court

jurisprudence.

I

The Supreme Court has established a clear test for cases

like this one. While the Court has modified the test to fit

different contexts, it has not wavered from the principle that

the First Amendment affords organizations and individuals

substantial protection when the government tries to force

disclosure of ties that could impact their freedom of

association.

A

The Supreme Court decisions protecting against forced

disclosures that threaten individuals’ freedom of association

arose in a series of cases involving the NAACP. See, e.g.,

NAACP v. Alabama, 357 U.S. 449; Bates, 361 U.S. 516;

Gremillion, 366 U.S. 293; Gibson, 372 U.S. 539. The Court

considered numerous attempts by states to compel disclosure

of NAACP membership information at a time when those

members faced a well-known risk of “economic reprisal, loss

of employment, threat of physical coercion, and other

manifestations of public hostility.” NAACP v. Alabama,

357 U.S. at 462; see also Gremillion, 366 U.S. at 295–96;

Bates, 361 U.S. at 523–24.

In this broader context, the Court recognized that “[i]t is

hardly a novel perception that compelled disclosure of

affiliation with groups engaged in advocacymay constitute as

effective a restraint on freedom of association” as more direct
8 AFP V. BECERRA

restrictions on speech. NAACP v. Alabama, 357 U.S. at 462. 

“[F]reedom of association for the purpose of advancing ideas

and airing grievances is protected by the Due Process Clause

of the Fourteenth Amendment from invasion by the States . . .

not only against heavy-handed frontal attack, but also from

being stifled by more subtle governmental interference.”

Bates, 361 U.S. at 523 (citations omitted).

Because state disclosure requirements can abridge First

Amendment associational rights, the Court held such

requirements were subject to heightened scrutiny. Once a

plaintiff carries the burden of showing that a state-required

disclosure may result “in reprisals against and hostility to the

members,” Gremillion, 366 U.S. at 296, the state has to

show: (1) a sufficiently compelling interest for requiring

disclosure, see NAACP v. Alabama, 357 U.S. at 462–63;

(2) that the means were substantially related to that interest,

Gibson, 372 U.S. at 549; and (3) that the means were

narrowly tailored, Gremillion, 366 U.S. at 296. While the

Supreme Court has articulated this three-part test in various

ways, it has made clear that the test affords substantial

protection to persons whose associational freedoms are

threatened.

B

The Court modified the NAACP v. Alabama test for

application in the electoral context. See Buckley, 424 U.S.

at 64, 68. Buckley recognized the importance of applying

“[t]he strict test established by NAACP v. Alabama . . .

because compelled disclosure has the potential for

substantially infringing the exercise of First Amendment

rights,” but it adjusted the test for government action that

affects elections when the plaintiffs could not establish that
AFP V. BECERRA 9

disclosure would subject them to threats or harassment. Id.

at 66. It makes sense to adapt the NAACP v. Alabama test for

the electoral context, where the government’s interest is

uniquely important. Influence in elections may result in

influence in government decisionmaking and the use of

political power; therefore, the government’s crucial interest

in avoiding the potential for corruption and hidden leverage

outweighs incidental infringement on First Amendment

rights. Id. at 66–68, 71. The interests served by disclosure

outside the electoral context, such as policing types of

charitable fraud, pale in comparison to the crucial importance

of ensuring our election system is free from corruption or its

appearance.

Given the unique electoral context, Buckley held that, for

the first prong, the governmental interest must be

“sufficiently important to outweigh the possibility of

infringement” of First Amendment rights; the government did

not need to show a compelling government interest. Id. at 66. 

For the second prong, it still held there must be a “substantial

relation between the governmental interest and the

information required to be disclosed.” Id. at 64 (footnote and

internal quotation marks omitted) (quoting Gibson, 372 U.S.

at 547).

As to the third prong of the test, Buckley fashioned a per

se rule: it deemed the disclosure requirement to be “the least

restrictive means of curbing the evils of campaign ignorance

and corruption that Congress found to exist.” Id. at 68. 

Buckley based this conclusion on its recognition that

Congress always has a substantial interest in combating voter

ignorance by providing the electorate with information about

the sources and recipients of funds used in political

campaigns in order to deter actual corruption and avoid the
10 AFP V. BECERRA

appearance of corruption, and in gathering data necessary to

detect violations of separate political contribution limits. Id.

at 66–68. Because, “in most applications,” disclosure is “the

least restrictive means of curbing the evils of campaign

ignorance and corruption,” the narrow tailoring prong of the

NAACP v. Alabama test is satisfied. Id. at 68.

Recognizing the distinction between elections and other

justifications for disclosure, the Supreme Court has applied

Buckley’s test only in cases that involve election-related

disclosures, a context in which the Supreme Court has already

established that disclosure is the least restrictive means of

reaching Congress’s goals. See, e.g., Doe v. Reed, 561 U.S.

186, 196–97 (2010); Citizens United v. FEC, 558 U.S. 310,

369–70 (2010). These cases did not discuss whether

disclosure was narrowly tailored to address the government’s

concern; Buckley already held that it is. For example, Doe v.

Reed recognized the government’s interest in “preserving the

integrity of the electoral process” and “promoting

transparency and accountability in the electoral process,” and

thus there was no need to discuss narrow tailoring. 561 U.S.

at 197–98. The Court likewise did not focus on the narrow

tailoring requirement in Citizens United, noting Buckley’s

holdings that “disclosure could be justified based on a

governmental interest in ‘provid[ing] the electorate with

information’ about the sources of election-related spending,”

and that “disclosure is a less restrictive alternative to more

comprehensive regulations of speech.” 558 U.S. at 367, 369

(quoting Buckley, 424 U.S. at 66).

The Court’s limited application of the Buckley test,

confined to cases in the electoral context in which the

government’s aim is to serve goals like “transparency and

accountability,” has not displaced the stringent standard set
AFP V. BECERRA 11

out in NAACP v. Alabama. Indeed, the NAACP v. Alabama

standard was likely not triggered in the election cases, given

that they did not involve evidence that compelled disclosure

would give rise to public hostility to the plaintiff’s members

or donors. The Court has maintained NAACP v. Alabama’s

standard outside of the electoral context, thus reasserting the

validity of that standard after Buckley. See, e.g., In re

Primus, 436 U.S. 412, 432 (1978) (holding that where a state

seeks to infringe upon a party’s First Amendment freedom of

association, the state must justify that infringement with “a

subordinating interest which is compelling” and must use

means that are “closely drawn to avoid unnecessary

abridgment of associational freedoms”) (first quoting Bates,

361 U.S. at 524; then quoting Buckley, 424 U.S. at 25); see

also Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)

(holding that infringement of the right to associate “may be

justified by regulations adopted to serve compelling state

interests, unrelated to the suppression of ideas, that cannot be

achieved through means significantly less restrictive of

associational freedoms”). Thus, there is no doubt that the

NAACPv.Alabama test—requiring a compelling government

interest, a substantial relation between the sought disclosure

and that interest, and narrow tailoring so the disclosure does

not infringe on First Amendment rights more than

necessary—remains applicable for cases arising outside of the

electoral context, where a plaintiff needs its crucial protection

against forced disclosures that threaten critical associational

rights.

C

Until recently, the circuit courts, including the Ninth

Circuit, have agreed that NAACP v. Alabama is still good

law, and they have applied it when considering state action
12 AFP V. BECERRA

that has the effect of burdening individuals’ First Amendment

rights by requiring disclosure of associational information.1

In Familias Unidas v. Briscoe, for instance, the Fifth Circuit

struck down a Texas statute that empowered a county judge

to compel public disclosure of the names of organizations that

interfered with the operation of public schools. 619 F.2d 391,

394 (5th Cir. 1980). In that case, the judge had compelled

disclosure of the names of Mexican-American students and

adults who were members of a group seeking reform of the

Hondo public schools. The Fifth Circuit recognized that the

Supreme Court had upheld compulsory disclosures of

membership lists only when the underlying state interest is

compelling and legitimate, and the disclosure requirement is

1

See, e.g., United States v. Comley, 890 F.2d 539, 543–44 (1st Cir.

1989) (“Once [a prima facie showing of First Amendment infringement]

is made, the burden then shifts to the government to show both a

compelling need for the material sought and that there is no significantly

less restrictive alternative for obtaining the information.”); Wilson v.

Stocker, 819 F.2d 943, 949 (10th Cir. 1987) (“The law must be

substantially related to a compelling governmental interest, and must be

narrowly drawn so as to be the least restrictive means of protecting that

interest.”); Humphreys, Hutcheson, & Moseley v. Donovan, 755 F.2d

1211, 1222 (6th Cir. 1985) (upholding the challenged provisions in part

because they “are carefully tailored so that first amendment freedoms are

not needlessly curtailed”); Clark v. Library of Cong., 750 F.2d 89, 94

(D.C. Cir. 1984) (“[T]he government must demonstrate that the means

chosen to further its compelling interest are those least restrictive of

freedom of belief and association.”); Master Printers of Am. v. Donovan,

751 F.2d 700, 705 (4th Cir. 1984) (“To survive the ‘exacting scrutiny’

required by the Supreme Court, . . . the government must show that the

disclosure and reporting requirements are justified by a compelling

government interest, and that the legislation is narrowly tailored to serve

that interest.”); see also Perry v. Schwarzenegger, 591 F.3d 1147,

1159–61 (9th Cir. 2010); Dole v. Serv. Emps. Union, AFL-CIO, Local

280, 950 F.2d 1456, 1461 (9th Cir. 1991); Brock v. Local 375, Plumbers

Int’l Union of Am., 860 F.2d 346, 350 (9th Cir. 1988).
AFP V. BECERRA 13

“drawn with sufficiently narrow specificity to avoid

impingingmore broadlyupon First Amendment liberties than

is absolutely necessary.” Id. at 399 (citing Buckley, 424 U.S.

at 68).

Our cases have likewise remained faithful to NAACP v.

Alabama. For example, Brock v. Local 375, Plumbers

International Union of America recognized that once a

plaintiff shows that disclosure will result in “harassment,

membership withdrawal, or discouragement of new

members,” or otherwise chill associational rights, heightened

scrutiny applies: the government must demonstrate that the

information sought “is rationally related to a compelling

governmental interest,” and that the disclosure requirement is

the least restrictive means of obtaining that information. 

860 F.2d 346, 350 (9th Cir. 1988) (citing Buckley, 424 U.S.

at 64, 68; Shelton v. Tucker, 364 U.S. 479, 488 (1960)). We

reaffirmed this approach in Perry v. Schwarzenegger, where

we emphasized that “[i]nfringements on [the freedom to

associate] may be justified by regulations adopted to serve

compelling state interests, unrelated to the suppression of

ideas, that cannot be achieved through means significantly

less restrictive of associational freedoms.” 591 F.3d 1147,

1159 (9th Cir. 2010) (quoting Roberts, 468 U.S. at 623).2

In recent years, a few outliers have emerged and broken

from the uniform application of NAACP v. Alabama when

considering challenges to government-required disclosure. 

We applied Buckley, rather than NAACP v. Alabama, in two

2 Although these cases cite both to Buckley and to cases setting out the

NAACP v. Alabama test, see, e.g., Brock, 860 F.2d at 350, they remain

faithful to the principles ofNAACP v. Alabama by applying its heightened

scrutiny and requiring narrow tailoring.
14 AFP V. BECERRA

cases involving state disclosure requirements outside the

electoral context. See Ams. for Prosperity Found. v. Harris,

809 F.3d 536, 538–39 (9th Cir. 2015) (per curiam) (“AFPF

I”); Ctr. for Competitive Politics v. Harris, 784 F.3d 1307,

1312–14 (9th Cir. 2015) (“CCP”). The Second Circuit has

also recently applied Buckley’s test—without a narrow

tailoring requirement—to a challenge to a government

disclosure requirement outside of the electoral context. See

Citizens United v. Schneiderman, 882 F.3d 374, 382, 385 (2d

Cir. 2018). But none of these outliers offered a convincing

rationale for extending Buckley outside of the electoral

context. Equally important, none addressed a situation in

which a plaintiff showed a reasonable probability of threats

or hostility in the event of disclosure, see Schneiderman,

882 F.3d at 385; AFPF I, 809 F.3d at 541; CCP, 784 F.3d at

1314, which is a threshold requirement for the application of

NAACP v. Alabama’s test. Accordingly, these cases do not

bear on whether NAACP v. Alabama’s standard must be

applied when a plaintiff does make such a showing,

regardless whether the application of Buckley is appropriate

outside of the electoral context.

II

The facts of this case make clear that the Foundation is

entitled to First Amendment protection under NAACP v.

Alabama and that California’s disclosure requirement cannot

be constitutionally applied to the Foundation.

The Americans for Prosperity Foundation is a

conservative organization dedicated to “educating and
AFP V. BECERRA 15

training citizens to be advocates for freedom.”3It develops

educational programs to “share knowledge and tools that

encourage participants to apply the principles of a free and

open society in their daily lives.”4

People publicly affiliated with the Foundation have often

faced harassment, hostility, and violence, as shown by the

evidence adduced at trial in this case. For example,

supporters have received threateningmessages and packages,

had their addresses and children’s school addresses posted

online in an effort to intimidate them, and received death

threats. One blogger posted a message stating he

contemplated assassinating a Foundation supporter: “I’m a

trained killer, you know, courtesy of U.S. taxpayers, and it

would be easy as pie to . . . take [him] out.” In the same vein,

a consultant working for the Foundation posted threats of

physical violence against Foundation employees. On a

different blog site, a person claiming that he worked at the

Foundation posted that he was “inside the belly of the beast,”

and could “easily walk in and slit [the Foundation CEO’s]

throat.”

Foundation supporters have also been subjected to

violence, not just threats. For instance, at a rally in Michigan,

several hundred protestors wielding knives and box cutters

surrounded the Foundation’s tent and sawed at the tent ropes

until they were severed. Foundation supporters were caught

under the tent when it collapsed, including elderly supporters

3 Ams. for Prosperity Found., http://americansforprosperityfoundation.org (last

visited March 11, 2019).

4

Id.
16 AFP V. BECERRA

who could not get out on their own. At least one supporter

was punched by the protestors.

Opponents of the Foundation have also targeted its

supporters with economic reprisal. For instance, after an

article published byMother Jonesmagazine in February2013

revealed donor information, protesters called for boycotts of

the businesses run by six individuals mentioned in the article. 

Similarly, Art Pope, who served on the Foundation’s board of

directors, suffered boycotts of his business.

Given this history of harassment, the Foundation was

reluctant to make information about its donors public. This

concern became acute in 2010, when California suddenly

decided to enforce a long dormant disclosure law.

California law requires any entity that wishes to register

as a charitable organization to submit a multitude of tax

forms to the state. See Cal. Code Regs. tit. 11, § 301. Among

other requirements, California requires charitable

organizations to file a confidential federal tax form,

Schedule B to IRS Form 990, which contains the names and

addresses of any donors who meet certain criteria. See id.;

26 U.S.C. § 6033(b); 26 C.F.R. § 1.6033-2(a)(2)(iii)(a). 

Under its regulations, California may release Schedule Bonly

in response to a search warrant or as needed in an

enforcement proceeding brought against a charity by the

Attorney General. See Cal. Code Regs. tit. 11, § 310(b). But

as discussed below, the state’s confidential information is so

vulnerable to hacks and inadvertent disclosure that

Schedule Binformation is effectivelyavailable for the taking.

In light of the Foundation’s confidentialityconcerns, from

2001 to 2010, it registered as a charity in California without
AFP V. BECERRA 17

submitting the donor information its Schedule B contains.5

Over that entire period, California did not request the

Foundation’s Schedule B or list the Foundation’s registration

as a charity as deficient in any way. See AFPF II, 903 F.3d

at 1006–07.

In 2010, California suddenly increased its efforts to

collect charities’ Schedule Bs, and in 2013 the state notified

the Foundation that its registration was deficient because it

had not submitted Schedule B donor information. See id. at

1006. In an effort to protect its donors from likely threats and

hostility as backlash for their affiliation with the Foundation,

it filed suit seeking to enjoin California from enforcing this

requirement against it.

After a multi-day trial, the district court ruled that the

First Amendment protects the Foundation from forced

disclosure of its donor information,6and it entered a

permanent injunction against California’s enforcement of the

Schedule B requirement as applied to the Foundation. See

Ams. for Prosperity Found., 182 F. Supp. 3d at 1059.

5

 The Foundation’s Schedule B includes the names and addresses of

any person who donated more than 2 percent of the Foundation’s annual

contributions. See 26 C.F.R. § 1.6033-2(a)(2)(iii)(a).

6 The district court initially entered a preliminary injunction against

California’s enforcement against the Foundation. See AFPF II, 903 F.3d

at 1006. A panel of our court reversed in part on the ground that the

Foundation had not shown evidence of past hostility toward Foundation

donors or a reasonable probability of future hostility. See AFPF I,

809 F.3d at 539–41. On remand, the Foundation presented evidence of

both. See Ams. for Prosperity Found., 182 F. Supp. 3d 1049.
18 AFP V. BECERRA

III

The panel reversed, holding that California’s interest in

Schedule Binformation was “sufficiently important” and that

there was a substantial relation between the requirement and

the state’s interest. AFPF II, 903 F.3d at 1008 (quoting Doe,

561 U.S. at 196). In reaching this conclusion, the panel made

crucial factual and legal errors.

The panel’s legal error is evident. Although this case

arose outside of the election context, and the Foundation

established that its members might be exposed to harassment

and abuse if their identities were made public, the panel

mistakenlyapplied Buckley’s “exacting scrutiny” and rejected

the Foundation’s argument that a narrow tailoring

requirement applied in this context. See AFPF II, 903 F.3d

at 1008–09.

The panel’s factual errors are equally egregious. As a

general rule, appellate courts may not override the facts found

by a district court unless they are clearly erroneous. In our

circuit, “we will affirm a district court’s factual finding unless

that finding is illogical, implausible, or without support in

inferences that may be drawn from the record.” United States

v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). 

Here, the panel not only failed to defer to the district court,

but reached factual conclusions that were unsupported by the

record.

First, the district court held that disclosure of the

Schedule B information to the state could result in the names

of the Foundation’s donors being released to the public. See

Ams. for Prosperity Found., 182 F. Supp. 3d at 1057. The

district court squarely rejected the state’s argument that no
AFP V. BECERRA 19

donor information disclosed to the state would be publicly

disclosed because it would remain confidential on the state’s

servers. See id. The evidence produced at trial in this case

provided overwhelming support for the court’s findings. 

There was ample evidence of human error in the operation of

the state’s system. State employees were shown to have an

established history of disclosing confidential information

inadvertently, usually by incorrectly uploading confidential

documents to the state website such that they were publicly

posted. Such mistakes resulted in the public posting of

around 1,800 confidential Schedule Bs, left clickable for

anyone who stumbled upon them. AFPF II, 903 F.3d at 1018. 

And the public did find them. For instance, in 2012 Planned

Parenthood become aware that a complete Schedule B for

Planned Parenthood Affiliates of California, Inc., for the 2009

fiscal year was publicly posted; the document included the

names and addresses of hundreds of donors.

There was also substantial evidence that California’s

computerized registry of charitable corporations was shown

to be an open door for hackers. In preparation for trial, the

plaintiff asked its expert to test the security of the registry. 

He was readily able to access every confidential document in

the registry—more than 350,000 confidential

documents—merely by changing a single digit at the end of

the website’s URL. See AFPF II, 903 F.3d at 1018. When

the plaintiff alerted California to this vulnerability, its experts

tried to fix this hole in its system. Yet when the expert used

the exact same method the week before trial to test the

registry, he was able to find 40 more Schedule Bs that should

have been confidential.

In rejecting the district court’s factual conclusions, the

panel violated our standard of review as well as common
20 AFP V. BECERRA

sense. The panel concluded that in the future, all Schedule B

information would be kept confidential. It reasoned that

because the state technician was able to fix the security

vulnerability exposed by the Foundation’s expert, “[t]here is

no evidence to suggest that this type of error is likely to

recur.” Id. at 1018. The panel did not address the fact that

even a week before trial, the state could not prevent a second

disclosure based on the same security vulnerability. Further,

the panel claimed that despite the state’s long history of

inadvertent disclosure of Schedule B information through

human error, the state’s new efforts to correct human errors

through additional “procedural quality checks” and “a system

of text-searching batch uploads before they are scanned to the

Registry site to ensure none contains Schedule B keywords”

would obviate future disclosures. Id. But no evidence

supports this claim, and it is contrary to any real-world

experience.

Second, the district court found that the state did not have

a strong interest in obtaining the Schedule B submissions to

further its enforcement goals. Instead, it held that

California’s up-front Schedule B submission requirement

“demonstrably played no role in advancing the Attorney

General’s law enforcement goals for the past ten years.” 

Ams. for Prosperity Found., 182 F. Supp. 3d at 1055. Indeed,

California could not point to “even a single, concrete instance

in which pre-investigation collection of a Schedule B did

anything to advance the Attorney General’s investigative,

regulatory or enforcement efforts.” Id. The panel rejected

this well-supported finding based solely on the conclusory,

blanket assertions made by state witnesses that up-front

disclosure of donor names increases “investigative

efficiency.” AFPF II, 903 F.3d at 1010. Yet the Supreme

Court has made clear that a state’s “mere assertion” that there
AFP V. BECERRA 21

was a substantial relationship between the disclosure

requirement and the state’s goals is not enough to establish

such a relationship. See Bates, 361 U.S. at 525; Gibson,

372 U.S. at 554–55. And the record does not otherwise

support the panel’s conclusion.

Finally, the district court found ample evidence that

Foundation supporters would likely be subject to threats or

hostility should their affiliations be disclosed. See Ams. for

Prosperity Found., 182 F. Supp. 3d at 1055–56. But based on

its unsupported assumption that public disclosure would not

occur, the panel felt justified in disregarding this wellsupported conclusion. AFPF II, 903 F.3d at 1017.

Given the panel’s erroneous factual determinations that

there would be no public disclosure of Foundation donors and

that California’s disclosure requirement was substantially

related to its enforcement goals, and its mistaken legal

decision that no narrow tailoring was required, it is not

surprising that the panel easily arrived at the conclusion that

the donors were not entitled to any protection of their First

Amendment rights.

IV

But contrary to the panel, the full protection of NAACP v.

Alabama was warranted in this case, because the

Foundation’s donors may be exposed to harassment and

abuse if their identities are disclosed, and the special

considerations regarding government-required disclosuresfor

elections are not present. See, e.g., Primus, 436 U.S. at 432;

Brock, 860 F.2d at 350. Had the panel properly recognized

NAACP v. Alabama’s applicability, it would have considered

(1) whether California presented a compelling interest that is
22 AFP V. BECERRA

(2) substantially related to the disclosure requirement, and

(3) whether the requirement was narrowly tailored to the

articulated interest. See 357 U.S. at 462–63; Gibson,

372 U.S. at 546; Gremillion, 366 U.S. at 297.

Applying the correct test, it is clear that California failed

to show that its Schedule B disclosure requirement is

“substantially related” to any interest in policing charitable

fraud. A state’s “mere assertion” that there was a substantial

relationship between the disclosure requirement and the

state’s goals is not enough to establish such a relationship, see

Bates, 361 U.S. at 525; Gibson, 372 U.S. at 554–55, and the

district court’s well-supported factual findings establish that

the Schedule Bs are rarely used to detect fraud or to enhance

enforcement efforts.

Nor is California’s disclosure requirement narrowly

tailored; rather, the means “broadly stifle fundamental

personal liberties” and “the end can be more narrowly

achieved.” Gremillion, 366 U.S. at 296 (quoting Shelton,

364 U.S. at 488). The state requires blanket Schedule B

disclosure from every registered charity when few are ever

investigated, and less restrictive and more tailored means for

the Attorney General to obtain the desired information are

readily available. In particular, the Registry can obtain an

organization’s Schedule B through a subpoena or a request in

an audit letter once an investigation is underway without any

harm to the government’s interest in policing charitable fraud. 

Moreover, the state failed to provide any example of an

investigation obscured by a charity’s evasive activity after

receipt of an audit letter or subpoena requesting a Schedule B,

although state witnesses made assertions to that effect. See

AFPF II, 903 F.3d at 1010–11. The panel’s erroneous

application of Buckley led it to ignore this requirement
AFP V. BECERRA 23

completely, and it demanded no explanation from California

for why such a sweeping disclosure requirement—imposed

before the state has any reason to investigate a charity—is

justified given equally effective, less restrictive means exist. 

See id. at 1011–12.

Accordingly, under the proper application of the test to

the facts found by the district court, the Foundation was

entitled to First Amendment protection of its donor lists. 

Because California failed to show a substantial relation

between its articulated interest and its disclosure requirement,

and because it failed to show that the requirement was

narrowly tailored, California’s Schedule B disclosure

requirement fails the test provided by NAACP v. Alabama,

and it should have been struck down as applied to the

Foundation.

The panel’s contrary conclusion eviscerates the First

Amendment protections long-established by the Supreme

Court. By applying Buckley where NAACP v. Alabama’s

higher standard should have been triggered, the panel lowered

the bar governments must surmount to force disclosure of

sensitive associational ties. Under the panel’s standard, a

state’s self-serving assertions about efficient law enforcement

are enough to justify disclosures notwithstanding the threats,

hostility, and economic reprisals against socially disfavored

groups that may ensue. And by rejecting the district court’s

factual findings that disclosed donor lists will become public

and expose individuals to real threats of harm, the panel

imposes a next-to-impossible evidentiaryburden on plaintiffs

seeking protection of their associational rights. Indeed, if the

Foundation’s evidence is not enough to show that California

cannot adequately secure its information, no plaintiff will be

able to overcome a state’s empty assurances. “The possibility
24 AFP V. BECERRA

of prevailing in an as-applied challenge provides adequate

protection for First Amendment rights only if . . . the showing

necessaryto obtain the exemption is not overly burdensome.” 

Doe, 561 U.S. at 203 (Alito, J., concurring).

V

In short, the panel’s conclusion is contrary to the

reasoning and spirit of decades of Supreme Court

jurisprudence. Under the panel’s analysis, the government

can put the First Amendment associational rights of members

and contributors at risk for a list of names it does not need, so

long as it promises to do better in the future to avoid public

disclosure of the names. Given the inability of governments

to keep data secure, this standard puts anyone with

controversial views at risk. We should have reheard this case

en banc to reaffirm the vitality of NAACP v. Alabama’s

protective doctrine, and to clarify that Buckley’s watereddown standard has no place outside of the electoral context.

The First Amendment freedom to associate is vital to a

functioning civil society. For groups with “dissident beliefs,”

it is fragile. The Supreme Court has recognized this time and

time again, but the panel decision strips these groups of First

Amendment protection. I dissent from our decision not to

correct this error.
AFP V. BECERRA 25

FISHER, PAEZ and NGUYEN, Circuit Judges, responding

to the dissent from the denial of rehearing en banc:

The State of California, like the federal government,

requires tax-exempt § 501(c)(3) organizations to file annual

returns with regulators charged with protecting the public

against charitable fraud. Among other things, these

organizations are required to report the names and addresses

of their largest contributors on IRS Form 990, Schedule B. 

The information is provided to regulators, who use it to

prevent charitable fraud, but it is not made public. Both

circuits to consider the question have concluded that First

Amendment challenges to these requirements are subject to

exacting, rather than strict, scrutiny, and both circuits have

held that these requirements satisfy exacting scrutiny. See

Ams. for Prosperity Found. v. Becerra (AFPF II), 903 F.3d

1000 (9th Cir. 2018); Citizens United v. Schneiderman,

882 F.3d 374 (2d Cir. 2018); Ams. for Prosperity Found. v.

Harris (AFPF I), 809 F.3d 536 (9th Cir. 2015); Ctr. for

Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir.), cert.

denied, 136 S. Ct. 480 (2015). As these courts have

recognized, requiring the nonpublic disclosure of Schedule B

information comports with the freedom of association

protected by the First Amendment because it allows state and

federal regulators to protect the public from fraud without

exposing contributors to the threats, harassment or reprisals

that might follow public disclosure.

I

Organizations operated exclusively for religious,

charitable, scientific or educational purposes are eligible for

an exemption from federal and state taxes under § 501(c)(3)

of the Internal Revenue Code and § 23701 of the California
26 AFP V. BECERRA

Revenue & Tax Code. Organizations avail themselves of this

status to avoid taxes and collect tax-deductible contributions.

Because this favored tax treatment presents opportunities

for self-dealing, fraud and abuse, organizations availing

themselves of § 501(c)(3) status are subject to federal and

state oversight. Congress has required every organization

exempt from taxation under § 503(c)(3) to file an annual

information return (Form 990 series) with the Internal

Revenue Service, setting forth detailed information on its

income, expenditures, assets and liabilities, including, as

relevant here, “the total of the contributions and gifts received

by it during the year, and the names and addresses of all

substantial contributors.” 26 U.S.C. § 6033(b)(5). 

Organizations such as plaintiffs Americans for Prosperity

Foundation and Thomas More Law Center are required to

report the name and address of any person who contributed

the greater of $5,000 or 2 percent of the organization’s total

contributions for the year. See 26 C.F.R.

§ 1.6033-2(a)(2)(iii)(a). An organization with $10 million in

annual revenue, for example, must report contributors who

have given in excess of $200,000 for the year. Between 2010

and 2015, the Thomas More Law Center was required to

report no more than seven contributors; Americans for

Prosperity Foundation was required to report no more than

10 contributors – those contributing over $250,000. 

Organizations report this information on IRS Form 990,

Schedule B.

This information is reported not only to the IRS but also

to state regulators. California’s Supervision of Trustees and

Charitable Trusts Act requires the Attorney General to

maintain a registry of charitable organizations and authorizes

the AttorneyGeneral to obtain “whatever information, copies
AFP V. BECERRA 27

of instruments, reports, and records are needed” for the

registry’s “establishment and maintenance.” Cal. Gov’t Code

§ 12584. To solicit tax-deductible contributions from

California residents, an organization must maintain

membership in the registry, see id. § 12585, and as one

condition of registry membership, charities must submit a

complete copy of the IRS Form 990 they already file with the

IRS, including Schedule B, see Cal. Code Regs. tit. 11, § 301.

This contributor information is not made public. See

26 U.S.C. § 6104(d)(1)(A)(i), (3)(A); Cal. Gov’t Code

§ 12590; Cal. Code Regs. tit. 11, § 310. The California

Attorney General keeps Schedule Bs in a separate file from

other submissions to the registry and excludes them from

public inspection on the registry website. See AFPF II,

903 F.3d at 1005. Only information that does not identify a

contributor is available for public inspection.

II

Some § 501(c)(3) organizations object to the Schedule B

reporting requirement. They argue that by submitting their

Schedule Binformation to regulators, they expose their major

contributors to threats, harassment and reprisals – from those

regulators and from the public – which in turn discourages

contributions. They argue, therefore, that this requirement

violates the freedom of association protected by the First

Amendment.

The two federal appellate courts to have addressed the

issue, ours and the Second Circuit, have rejected these claims. 

See AFPF II, 903 F.3d 1000; Schneiderman, 882 F.3d 374;

AFPF I, 809 F.3d 536; Ctr. for Competitive Politics, 784 F.3d

1307. These courts have agreed that exacting rather than
28 AFP V. BECERRA

strict scrutiny applies, see AFPF II, 903 F.3d at 1008;

Schneiderman, 882 F.3d at 381–82; AFPF I, 809 F.3d at 541;

Ctr. for Competitive Politics, 784 F.3d at 1312, and that the

Schedule B requirement survives exacting scrutiny, because

the requirement serves an important governmental interest in

preventing charitable fraud without imposing a substantial

burden on the exercise of First Amendment rights.

The dissent from the denial of rehearing en banc

challenges these decisions, arguing that a form of strict

scrutiny applies and that California’s Schedule Brequirement

is unconstitutional. In our view, the dissent’s arguments are

not well taken.

III

The bulk of the dissent is devoted to the argument that we

erred by applying exacting scrutiny. According to the

dissent, First Amendment challenges to disclosure

requirements are subject to two different tests:

1. In the electoral context, “exacting scrutiny” applies. 

This “standard requires a substantial relation between

the disclosure requirement and a sufficiently

important governmental interest. To withstand this

scrutiny, the strength of the governmental interest

must reflect the seriousness of the actual burden on

First Amendment rights.” Doe v. Reed, 561 U.S. 186,

196 (2010) (citations and internal quotation marks

omitted).

2. Outside the electoral context, “heightened scrutiny”

applies. This standard requires (1) a “compelling

interest,” (2) “a substantial relationship between the
AFP V. BECERRA 29

information sought and the compelling state interest”

and (3) narrow tailoring. Dissent at 5. The dissent

refers to this strict-scrutiny-like test as “heightened

scrutiny” or the “NAACP v. Alabama test.”

This case does not arise in the electoral context. Hence,

according to the dissent, we should have applied the dissent’s

proposed “heightened scrutiny” test rather than exacting

scrutiny. Had we done so, the dissent says, we would have

invalidated California’s Schedule B requirement.

We respectfully disagree with the dissent’s contention

that First Amendment challenges to disclosure requirements

are subject to two different tests. In our view, there is only a

single test – exacting scrutiny – that applies both within and

without the electoral context. This test originated in NAACP

v. Alabama, 357 U.S. 449 (1958), and the other Civil Rights

Era cases – Bates v. City of Little Rock, 361 U.S. 516 (1960),

Shelton v. Tucker, 364 U.S. 479 (1960), Louisiana ex rel.

Gremillion v. NAACP, 366 U.S. 293 (1961), Gibson v. Fla.

Legislative Investigation Comm., 372 U.S. 539 (1963) – and

has been applied more recently in Buckley v. Valeo, 424 U.S.

1 (1976), Doe and other cases arising in the electoral context. 

As Doe explains, the exacting scrutiny test:

requires a substantial relation between the

disclosure requirement and a sufficiently

important governmental interest. To

withstand this scrutiny, the strength of the

governmental interest must reflect the

seriousness of the actual burden on First

Amendment rights.
30 AFP V. BECERRA

561 U.S. at 196 (citations and internal quotation marks

omitted).

Whereas strict scrutiny requires a compelling interest and

narrow tailoring in every case, the interest and tailoring

required under exacting scrutiny varies from case to case,

depending on the actual burden on First Amendment rights at

stake: the governmental interest must be “sufficiently

important” to justify the “actual burden on First Amendment

rights” in the case at hand. Id. (emphasis added). Thus,

where the burden that a disclosure requirement places on First

Amendment rights is great, the interest and the fit must be as

well. See, e.g., Buckley, 424 U.S. at 25 (“Even a significant

interference with protected rights of political association may

be sustained if the State demonstrates a sufficiently important

interest and employs means closely drawn to avoid

unnecessary abridgment of associational freedoms.”

(emphasis added) (internal quotation marks omitted));

Gibson, 372 U.S. at 546 (“Where there is a significant

encroachment upon personal liberty, the State may prevail

only upon showing a subordinating interest which is

compelling.” (emphasis added) (quoting Bates, 361 U.S. at

524)); Gremillion, 366 U.S. at 296 (“[E]ven though the

governmental purpose be legitimate and substantial, that

purpose cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can be more

narrowly achieved.” (emphasis added) (quoting Shelton,

364 U.S. at 488)); Shelton, 364 U.S. at 488 (same); Bates,

361 U.S. at 524 (“Where there is a significant encroachment

upon personal liberty, the State may prevail only upon

showing a subordinating interest which is compelling.”

(emphasis added) (citingNAACP v. Alabama, 357 U.S. 449));

see also R. George Wright, A Hard Look at Exacting

Scrutiny, 85 UMKC L. Rev. 207, 210 (2016). But where, as
AFP V. BECERRA 31

here, the actual burden is slight, a weaker interest and a looser

fit will suffice.

The dissent’s contention that there are two different tests

is based on the premise that NAACP v. Alabama applied

something other than exacting scrutiny. We are not

persuaded. First, the Supreme Court has already told us that

NAACP v. Alabama applied exacting scrutiny: “Since

NAACP v. Alabama we have required that the subordinating

interests of the State must survive exacting scrutiny.” 

Buckley, 424 U.S. at 64. Second, there is simply no way to

read NAACP v. Alabama as applying anything other than the

exacting scrutiny test described in Doe. The only question

the Court decided in NAACP v. Alabama was whether the

state had “demonstrated an interest in obtaining the

disclosures it seeks from petitioner which is sufficient to

justify the deterrent effect which we have concluded these

disclosures may well have on the free exercise by petitioner’s

members of their constitutionally protected right of

association.” NAACP v. Alabama, 357 U.S. at 463 (emphasis

added). The disclosure requirement failed solely because

“Alabama has fallen short of showing a controlling

justification for the deterrent effect on the free enjoyment of

the right to associate which disclosure of membership lists is

likely to have.” Id. at 466. There is no light between the test

applied in NAACP v. Alabama and the one described in Doe.

In sum, we properly applied exacting scrutiny.

IV

The dissent also challenges our conclusion that

California’s Schedule B requirement survives exacting

scrutiny. As noted, a disclosure requirement withstands
32 AFP V. BECERRA

scrutiny under this test if the strength of the governmental

interest reflects the seriousness of the actual burden on First

Amendment rights. See Doe, 561 U.S. at 196. Here, the

state’s strong interest in collecting Schedule B information

justifies the modest burden that nonpublic disclosure places

on the exercise of First Amendment rights.

A. Strength of the Governmental Interest

With respect to the state’s interest in collecting

Schedule Binformation, the evidence was undisputed that the

state uses Schedule B information to investigate charitable

fraud. See AFPF II, 903 F.3d at 1011. “Current and former

members of the Charitable Trusts Section, for example,

testified that they found the Schedule B particularly useful in

several investigations over the past few years, and provided

examples. They were able to use Schedule B information to

trace money used for improper purposes in connection with

a charity serving animals after Hurricane Katrina; to identify

a charity’s founder as its principal contributor, indicating he

was using the research charity as a pass-through; to identify

self-dealing in that same charity; to track a for-profit

corporation’s use of a non-profit organization as an improper

vessel for gain; and to investigate a cancer charity’s gift-inkind fraud.” Id. Circuits have consistently recognized the

strength of this interest. See, e.g., Schneiderman, 882 F.3d

at 384; Ctr. for Competitive Politics, 784 F.3d at 1311, 1317.

The evidence also was undisputed that up-front collection

of Schedule B information provides the only effective means

of obtaining the information. State regulators testified that

attempting to obtain a Schedule B from a regulated entity

after an investigation begins is ineffective “[b]ecause it’s

time-consuming, and you are tipping the charity off that they
AFP V. BECERRA 33

are about to be audited.” AFPF II, 903 F.3d at 1010. Using

a subpoena or audit letter “would tip them off to our

investigation, which would allowthempotentiallyto dissipate

more assets or hide assets or destroy documents, which

certainly happened several times; or it just allows more

damage to be done to [the] charity.” Id.; accord Ctr. for

Competitive Politics, 784 F.3d at 1317.

Although the district court questioned the strength of the

governmental interest, it did so by applying an erroneous

legal standard, requiring the state to establish that up-front

collection of Schedule B information was the least restrictive

means of obtaining the information, see Ams. for Prosperity

Found. v. Harris, 182 F. Supp. 3d 1049, 1053–55 (C.D. Cal.

2016), and that it would be impossible for the state to regulate

charitable organizations without collecting Schedule B

information, see Thomas More Law Ctr. v. Harris, No. CV

15-3048-R, 2016 WL 6781090, at *2 (C.D. Cal. Nov. 16,

2016). By applying the wrong legal standard, the district

court abused its discretion, see United States v. Hinkson,

585 F.3d 1247, 1251 (9th Cir. 2009) (en banc), and

disregarded a previous ruling by this court in this very case,

see AFPF I, 809 F.3d at 541 (rejecting a least restrictive

means test).

B. Actual Burden on First Amendment Rights

To determine the actual burden on First Amendment

rights, we looked at two questions: (1) the likelihood that the

plaintiffs’ Schedule B contributors would face threats,

harassment or reprisals if their Schedule B information were

made public and (2) the likelihood that the information would

become public. See AFPF II, 903 F.3d at 1015.
34 AFP V. BECERRA

We ultimately declined to reach any conclusion with

respect to the first question. See id. at 1017. The evidence on

that question was mixed. Neither plaintiff, for example,

identified a single contributor who would withhold financial

support based on the plaintiffs’ compliance with California’s

Schedule B disclosure requirement. See id. at 1014. The

Thomas More Law Center, moreover, has consistently overreported contributor information on its Schedule B filings,

undermining its contention that reporting deters contributions. 

See id. Furthermore, many of the plaintiffs’ Schedule B

contributors are alreadypubliclyknown. Private foundations,

for example, are required by law to publicly disclose their

contributions to the plaintiffs. See id. at 1015. Other

Schedule B contributors – such as Charles and David Koch –

are already publicly identified with the plaintiffs. In addition,

although the evidence showed that individuals who are

associated with the plaintiffs, such as the Koch brothers, have

faced threats or harassment based on their controversial

activities, the plaintiffs “presented little evidence bearing on

whether harassment has occurred, or is likely to occur, simply

because an individual or entity provided a large financial

contribution to the Foundation or the Law Center.” Id.

at 1016 & n.6. In 2013, the National Journal published copies

of the Foundation’s Schedule Bs, but the Foundation

presented no evidence that contributors suffered retaliation as

a result. See id. at 1017.

Ultimately, because California, like the federal

government and other states, requires only the nonpublic

disclosure of Schedule B information, we did not need to

decide whether, in the event of public disclosure of the

Schedule B information, the plaintiffs’ Schedule B

contributors were likely to encounter threats, harassment or

reprisals. See id. at 1017. We acknowledged the risk of
AFP V. BECERRA 35

inadvertent public disclosure based on past confidentiality

lapses by the state. See id. at 1018. We explained, however,

that “[t]he state’s past confidentiality lapses [were] of two

varieties: first, human error when Registry staff miscoded

Schedule B forms during uploading; and second, a software

vulnerability that failed to block access to a plaintiff’s expert

as he probed the Registry’s servers for flaws during this

litigation.” Id. at 1018. We explained that the software

problem stemmed from a third-party vendor, had been

“quickly remedied” and was not “likely to recur.” Id. With

respect to the problem of human error, we explained that

the Registry Unit has implemented stronger

protocols to prevent human error. It has

implemented “procedural quality checks . . .

to sample work as it [is] being performed” and

to ensure it is “in accordance with procedures

on handling documents and [indexing them]

prior to uploading.” It has further

implemented a system of text-searching batch

uploads before they are scanned to the

Registry site to ensure none contains Schedule

B keywords. At the time of trial in 2016, the

Registry Unit had halted batch uploads

altogether in favor of loading each document

individually, as it was refining the text-search

system. After forms are loaded to the

Registry, the Charitable Trusts Section runs

an automated weekly script to identify and

remove any documents that it had

inadvertentlymisclassified as public. There is

also no dispute that the Registry Unit

immediately removes any information that an
36 AFP V. BECERRA

organization identifies as having been

misclassified for public access.

Id. There was no evidence that these “cybersecurity protocols

are deficient or substandard as compared to either the

industry or the IRS, which maintains the same confidential

information.” Id. at 1019.

We also emphasized that we were addressing an asapplied challenge. See id. The key question, therefore, was

not whether there was a “risk of inadvertent disclosure of any

Schedule B information in the future,” but rather whether

there was a significant “risk of inadvertent disclosure of the

plaintiffs’ Schedule B information in particular.” Id. There

can be no question that this risk – which the district court

failed to consider – is exceedingly small, so the plaintiffs did

not show “a reasonable probability that the compelled

disclosure of [their major] contributors’ names will subject

them to threats, harassment, or reprisals from either

Government officials or private parties.” Buckley, 424 U.S.

at 74. The state’s interest in obtaining the plaintiffs’

Schedule Binformation therefore was sufficient under Doe to

justify the modest burden on First Amendment rights. See

AFPF II, 903 F.3d at 1019.

V

Our colleagues sensibly declined to rehear this case en

banc. Our decision to apply exacting scrutiny is consistent

with Supreme Court precedent, see Doe, 561 U.S. at 196;

Buckley, 424 U.S. at 64, NAACP v. Alabama, 357 U.S. at 463,

Ninth Circuit precedent, see Ctr. for Competitive Politics,

784 F.3d at 1312–13, and out-of-circuit precedent, see

Schneiderman, 882 F.3d at 381–82. Likewise, our conclusion
AFP V. BECERRA 37

that the Schedule B reporting requirement survives exacting

scrutiny is consistent with both Ninth Circuit and out-ofcircuit precedent. See Schneiderman, 882 F.3d at 383–85;

Ctr. for Competitive Politics, 784 F.3d at 1312–17. Although

only two circuits have addressed the issue, they have

uniformly held that nonpublic Schedule B reporting

requirements satisfy the First Amendment because they allow

state and federal regulators to protect the public from

charitable fraud without subjecting major contributors to the

threats, harassment or reprisals that could flow from public

disclosure.