F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A M E R I C A N S F O R P R

O S P E R I T Y F O U N D A T I O N , Plaintiff-Appellee
,

v.

X A V I E R B E C E R

R A , 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-F F M

A M E R I C A N S F O R P R

O S P E R I T Y F O U N D A T I O N , Plaintiff-Appellant
,

v.

X A V I E R B E C E R

R A , 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-F F MAF P V

. B E C E R R A 2

T H O M A S M O R E L A W C E

N T E R , Plaintiff-Appellee
,

v.

X A V I E R B E C E R

R A , 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-F F M

T H O M A S M O R E L A W C E

N T E R , Plaintiff-Appellant
,

v.

X A V I E R B E C E R

R A , 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-F F M

ORDER DENYI

NG PETI TI ONS F OR REHEARI

N G EN B ANC

F iled March 29, 2019

B efore: Ray

mond C. F isher, Richard A. Paez
, and J acqueline H. Ng

uy en, Circuit J u d g es.

Order; Dissent by

J udg e I kuta; Reply to Dissent by

J udg es F isher, Paez , and Ng uy enAF P V

. B E C E R R A 3

SUMMARY *

Civil Rights

The panel denied petitions f or rehearing en b anc on behalf of the court.

I n i t s opinion, the panel held that California Attorne y General’s Service F orm 990, Schedule B requirement, which oblig ates charities to submit the information they file e ach
y e ar with the I nternal Revenue Service pertaining to t h ei r larg e st contributors, survived e x acting scrutiny as applied to the plaintiffs because it was substantia l l y related to an important state interest in policing charitable fraud.

Dissenting from the denial o f rehearing en banc, J udg e I kuta, joined by J udg es Calla han, B ea, B ennett a nd R. Nelson, stated that the panel’s reversal of th e d istrict court’s decision was based on appellate factfi n d i ng and was contrary to the reasoning and spirit of deca des of Supreme Court jurisprudence, w hich affords substantial protections to persons whose associational freedoms are threatened. J udg e I kuta wrote that under the panel’s analy sis, the g overnment

can put the F irst Amendment associational rig hts of members and contributors at risk for a list of names it does not n eed, so long as it promises to do better in the future to avoid p u b l ic disclosure of the n a mes. J udg e I kuta w r ote that g iven the i n a b ility of g overnments to keep d ata secure, the panel ’s standard puts any one with controversial views at risk.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.AF P V

. B E C E R R A 4

Responding to the dissent from the denial of rehearing en banc, J udg e F isher, Paez and Ng uy e n s t a t e d that the panel’s decision to apply ex a cting scrutiny w as c onsistent with Supreme Court precedent, Ninth Circuit precedent, and outof-circuit precedent. The panel noted that the two circu i ts that h ave addressed th e i s s u e both have held that ex acting
, rat h er than strict scrutiny apply a nd that the nonpublic Schedule B reporting requirements s atisfy the F irst Amendment b ecause they allow s tate and federal reg ulators
to p rotect the public f

r om charitable fraud without subjecting major contributors to the threats, harassment or reprisals that could flow from public disclosure.

ORDER

J udg e Paez a

nd J u d g e N g uy en have voted to deny the petitions for r ehearing en banc a n d J u dg e F i s h er h a s so recommended.

The f ull court was advised of the p etitions for r eh e a ring

en banc. A judg e requested a v ote o n wh e t h e r t o r ehear the
matter en banc. T he matter failed to receive a majority of the

v o tes of the n onrecused active judg es in favor of e n b a n c consideration. F ed. R. App. P. 35.

Th e p e t i tions for rehearing en banc (Nos. 16-55727 a nd 16-55786, filed September 25, 2018 - Dk t

. 1 0 6 ; and N os. 16-56855 and 16-56902, filed September 26, 2018

- Dkt. 67)

are DENIED

.AF P V

. B E C E R R A 5

I KUTA, Circuit J u dg e, w ith whom CAL L AHAN, B E A
, B ENNETT, a

nd R. NEL SON, Circuit J udg es, join, dissenting from denial of rehearing en banc:

Controversial g roups often face threats, public hosti l i t y , and economic reprisals i f the g overnment compels the
org aniz ation to disclose its membership and contributor lists. The Supreme Court has long recog niz ed this dang er a nd h eld that such compell e d disclosures can violate the F irst Amendment rig ht t o a ssociation. See, e.g. , NAACP v

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

F or this reason, the Supreme Court has g iven sig nificant protection t o i n d ividuals who may be victimiz ed b y compelled disclosure of their affiliations. W here g overnment action subjects persons to harassment and threats of bodily harm, economic reprisal, o r “other manifestations of public hostility
, ” NAACP v. Alabama
, 357 U.S. at 462, the
g overnment must demonstrate a c ompelling intere s t, id. at 463; Bates v. Little Rock
, 361 U.S. 516, 524 (1960), there
must b e a substantial relationship be t w een the information
soug h t and the compelling state interest, Gibson v

. Fla. Legislative Investigation Comm.
, 37 2 U.S. 539, 546 (1963), and the state reg u lation must “be narrowly drawn to prevent the supposed evil,” Louisiana ex r e l

. Gremillion v. NAACP
, 366 U.S. 293, 297 (1961) ( internal quotation marks omitted) (quoting Cantwell v. Connecticut
, 310 U.S. 296, 307 (1940))

.

This robust protectio n o f F irst Amendment free association rig hts was desperately needed here. I n this case, California demanded that org aniz a tions that wer e hig hly

c o n t r o v e r sial due to their conservative p ositions disclos e m o s t

o f t h e i r donors, e ven thoug h, a s the district court found, th e state d id not really need this i n f o r m a tion to a ccomplish itsAF P V

. B E C E R R A 6

g oals. Althoug h the state is r e q uired to keep donor names private, the district court f ound that the state’s p r o mise o f confidentiality was illusory ; the state’s d a t abase was

vu l n e r able to hacking a nd scores o f donor names were repeatedly released to the public, e ven up to the week before trial. See Ams. for Prosperity Found. v. H arris
, 182 F

. Supp. 3d 1049, 1057 (C.D. Cal. 2016). Moreover, as the district
court f ound, supporters whose a ffiliation had previously been disclosed e x perienced harassment and abuse. Se e i d

. at 1055–56. Their n ames and addresses, and even the addresses of their children’s schools, were posted online a long with threats of violence. Some donors’ businesses were boy cotted. I n one incident, a rally of the plaintiff’s s u pporters was stormed by assailants wielding knives a nd bo x cu t ters, w ho
tore down the rally ’s tent while the plaintiff’s suppo rters strug g led to a v o i d b e i n g trapped beneath it. I n lig h t of the powerful evidence at trial, the district court held the
org aniz ations and their donors were entitled t o First A m endment protection u nder the p rinciples of NAACP v

. Alabama

. See id. at 1055.

The panel’s r eversal of the district c our t ’ s decision was based on a

ppellate factfinding and crucial leg al errors. F irst, the panel ig nored the d istr i c t c ourt’s factfinding
, holding
ag ainst all evidence that the d onors’ names would not be made public and that the donors would not be harassed. See Ams. for Prosperity Found. v. B ecerra , 903 F .3d 1000, 1017, 1019 ( 9th Cir. 2 018) ( “

AFPF II ”). Second, the p anel declined
to apply NAACP v. Alabama , even thoug h the facts squarely called for it. S

e e i d

. a t 1008–09. I n stead, the panel a pplied

a lower form of scrutiny adopted by the Supreme Co u r t f o r the unique e lectoral c ontex t. See B uckley v. Valeo
, 424 U.S. 1, 64, 68 (1976). The pa n e l ’ s approach will ensure that individ u als affiliated with c ontroversial org aniz ationsAF P V

. B E C E R R A 7

effecti vely h ave little or no p rotection from compelled disclosure. W e 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. W hile the Court has m o d i f i e d t h e test to fit different contex ts, it has not wavered from the principle that the F irst Amendment affords org aniz a tions and individuals substantial p rotection when the go v ernment tries to force d i sclosure of ties that could impact their f reedom of association.

A

The Supreme Court decisions protecting a g ains t forced disclosures that threaten individuals’ freedom of a ssociation

arose in a series of cases involving th e N A ACP. 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 a ttempts by states to compel disclosure of NAACP membe r s hip information at a time when those members faced a well-known risk of “economic reprisal, loss of employ

me n t , threat of phy sical c oercion, a nd other manifestations of public h o s tility .” NAACP v. Alabama
, 357 U.S. at 462; see also Gremillion
, 366 U.S. a t 2 9 5–96; Bates
, 361 U.S. at 523–24.

I n this broader contex t, the Court recog niz ed that “[ i] t is hardly a novel perception that compelled disclosure o f affiliation with g roups eng ag ed in advocacy may constitute a s effective a restraint on freedom of association” as more directAF P V

. B E C E R R A 8

restrictions on speech. NAACP v

. Alabama
, 357 U.S. at 462. “[ F ] reedom of association f or the purpose of advancing ideas and airing g rievances is protected by the Due Process Clause of the F ourteenth Amendment f rom invasion by the States

. . . not only ag ainst heavy -ha n d ed f rontal a ttack, but also from b eing stifled b y more subtle g overnmental interference.” Bates
, 361 U.S. at 523 (citations omitted)

.

B e cause state disclosure requirements can abrid ge First Amendmen t associational rig hts, the Court held such requirements w ere subject to h e ig htened scrutiny

. Once a plaintiff carries the b urden of showing th a t a state-required disclosure may result “in reprisals ag ainst and hostility to the members,” G remillion
, 366 U.S. at 296, the state has to show: (1) a sufficiently c ompelling interest for r equ i r i n g disclosure, see NAACP v. Al a b a m a , 357 U.S. at 462–63; (2) that the means w ere substantially r elated to that interest, G i b s o n , 3 72 U.S. at 549; and (3) that the means were narrowly tailored, Gremillion
, 366 U.S. at 2 96. W hile the Supreme Court has articulated this three-part t e s t in v arious
way s, it has made clear that the test af f o r ds substantial protection to persons whose a ssociational freedoms a re threatened.

B

The Court modified the NAACP v. A l a b ama test for
ap p l i c a t i on in the electoral c ontex t. S ee Buckley
, 4 24 U.S.
at 64, 68. Buckley recog niz ed the importance of a pply ing “[ t] he strict te s t e stablished by NAACP v. Alabama

. . . because compelled d isclosure h as the potential for substantially infring i n g the ex e rcise of F irst A mendment rig hts,” but it adjusted the test for go v e r nment action that affects elections when the plaintiffs could not esta b l i s h thatAF P V

. B E C E R R A 9

disclosure would subject them to threats or harassment. Id.
at 6 6

. I t makes sense to adapt the NAACP v. Alabama test for the e lectoral contex t, w h e re the g overnment’s interest is uniquely important. I n fl uence in elections may r e sult in influence in g overnment decisionma k i n g and the use o f political power; theref

o re, the g o vernment’s crucial interest in avoiding the potential for corruption and hi d den leverag e outweig hs incidental infring ement on F irst Ame n d m ent rig hts. Id. at 66–68, 71. T h e i n t e r e sts served by disclosure outside the electoral contex t, such as policing ty p es o f charitable fraud, pale in comparison to the crucial importance of ensuring our election sy stem is free f rom corruption or its
appearance.

Given the unique electoral contex t, Buckley held that, for the first prong , the g overnmental interest m u s t be “sufficiently important to outwei gh the possibility o f infring ement” of F irst Amendment rig h ts; the g o v e r nment did
not need to show a compelling g o vernment interest. Id. at 66. F or the second prong , it still held there must be a “substantial relation between t h e g overnmental interest and the information required to b e d isclosed.” Id. at 64 (footnote a nd 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 d isclosure requirement to be “the least restrictive means of c urbing the evils of campaig n ig norance and c orruption that Cong r ess f o und to ex ist.” Id

. at 68. Buckley based this conclusion on its recog n itio n t h at Cong r ess alway s has a substantial interest in combating voter ig norance by p roviding the electorate with information about the sources and recip ients of funds used in political

c a m paig ns in order to deter actual corruption and avoid t h eAF P V

. B E C E R R A 10

appearance of corruption, and in g athering data necessary to detect violations of separate p olitical contribution limits. Id.
at 66–68. B e cause, “in most applications,” disclosure is “the least restrictive means of curbing the evils of ca m p aig n ig norance and corruption,” the narrow tailoring prong of the NAACP v. Alabama test is satisfied. Id. at 68.

Recog niz ing the distinction between electi o n s and other justifications for disclosure, the Su p reme Court has a pplied Buckley ’s test only in c a ses that involve electi o n

- r elated disclosures, a contex t in which the Supreme Court has already established that disclosure is the least r e s t rictive means o f reaching Cong ress ’s g oals. See, e.g. , Doe v. Reed
, 561 U.S. 186, 196–97 ( 2010); Citizens Unit e d v. FEC
, 5 58 U.S. 310, 369–70 (2010). These c as e s d id n o t discuss whether disclosure was narrowly tailored to address the g overnment’s
concern; Buckley already held that it is. F or ex ample, D oe v

. Reed recog niz ed the g overnment’s interest in “preserving the integ rity of the electoral process” and “promoting transparency and accountability in the e lectoral process,” a nd thus there was no need to discuss narrow tailoring

. 561 U.S.
at 197–98. The Court likewise did n o t focus on the narrow tailoring requirement in Citizens United
, n o ting B uckley ’s holding s tha t “disclosure could be justified based on a g overnmental interest in ‘provid[ ing ] the el e c t orate with information’ about the sources of election-related spending
, ” and that “disclosure is a less r estrictive alternativ e t o more comprehensive reg u lations of speech.” 5 58 U .S. at 367, 369 (quoting Buckley , 424 U.S. at 66).

The Court’s limited a

pplication of the B u c k ley test,

c onfined to cases in the electoral contex t in which t h e g overnment’s aim is to serve g oals like “transparenc y a n d accountability
, ” has not d isplaced the string ent standard setAF P V

. B E C E R R A 11

out in NAACP v. Alabama

. I ndeed, the NAACP v. Alabama standard was likely

not trig g e r ed in the election cases, g iven that they did not involve evidence that compelled disclosure would g ive rise to public hostility to the plaintiff’s members

or donors. The Court has m a i n t a i ned NAACP v. Alabama ’s standard outside of the electoral c o ntex t, 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 infring e upon a party ’s F irst Amendment freedom o f

a s sociation, the state must justify that infring ement wi t h “ a subordinating i nterest which is c ompelling ” and must use

means that a

re “closely drawn to a v o i d unnecessary abridg ment of associational freedoms”) (first quoting B a tes , 3 6 1 U. S

. at 524; then quoting Buckley
, 424 U.S. at 25); s e e also Roberts v. U.S

. J

a ycees , 468 U.S. 609, 623 (1984) (h o l d i n g that infring ement of the rig h t to associate “may be justified by reg ulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved throug h means sig nificantly le s s r estrictive o f associational f

reedoms”). Thus, there i s n o doubt that the N A A C P v

. Alabama test—requiring a compelling g overnm e n t interest, a substantial relation between the soug ht disclosure and that interest, and narrow tailoring so the disclosure does
not infring e on F irst A mendment rig h ts more than
necessary —re m a i n s a

pplicable for c a ses a

rising outside o f the electoral contex t, where a plaintiff needs its crucial protection
ag ainst forced disclosures that threaten critical associational rig hts.

C

U n t il recently
, the circuit courts, including the Ni n t h Circuit, h ave a g reed that N AA C P v

. Alabama is still g ood law, and they have a

pplied it when considering state act i onAF P V

. B E C E R R A 12

that has the effect of burdening individuals’ F irst A mendment rig hts b y requiring disclosure of a ssociational information. 1 I n Familias Unidas v. Briscoe
, for instance, the F ifth Circuit struck d o wn a Tex as sta t u t e t hat empowered a county judg e to compel public disclosure of the names of org aniz ations that interfered with the operation o f public schools. 619 F .2d 391, 394 (5th Cir. 1 980)

. I n that c ase, the judg e had compelled disclo sure of the names of Mex ican-American students a nd adults wh o w ere members of a g roup seeking reform of the Hondo public schools. The F ifth Circuit recog niz ed that the Supreme Court had u pheld compulsory disclosures o f memb ership lists only when the underly ing state interest is compelling and leg itimate, and the disclosure requirement is

1 S ee, e.g

. , U

n ited S t a tes v. C o mley
, 8 9 0 F.2 d 5 3 9
, 5 4 3

– 4 4 (1 st Cir. 1 9 8 9 ) (“ On ce [a p rim a f

acie sh ow in g o f

First A m en d m en t in f

rin g em en t] is m ad e, t

h e bu rd en th en sh if

ts to th e g o v ern m en t to sh ow b o th a

co m pellin g n eed f

o r th e m aterial so u g h t an d th at th ere is n o sig n if ican tly less restrictiv e altern ativ e f o r ob tain i n g th e in f

o rm atio n .”); W

i lso n v. S to cker
, 8 1 9 F.2 d 9 43
, 9 4 9 (1 0 th Cir. 1 9 8 7 ) (“ T h e law m u s t b e

su b stan tially related to a c o m p e l lin g g ov ern m en tal in terest, an d m u st b e

n a r r o w l y d raw

n s o as to b e th e least restrictiv e m ean s o f p ro t ectin g th at in terest.”); Hu mp h reys, Hu tch eso n , & Mo se l e y v

. Do n o va n , 7 5 5 F.2 d 1 2 1 1
, 1 2 22 (6 th Cir. 1 9 8 5 ) (u p h o ld in g th e ch allen g ed p ro v isio n s in p art b ecau se th ey “ are caref

u lly tailo red s o th at f

irst am en d m en t f

reed om s are

n o t n eed l essly cu rtailed ”); Cla rk v. Lib r a ry o f C o n g

. , 7 50 F.2 d 8 9
, 9 4 (D.C. Cir. 19 8 4 ) (“ [T ]h e g o v ern m en t m u st d e m o n strate th at th e m ean s ch o sen to f

u rth er its co m

p ellin g in terest are t h o s e least restrictiv e of f reed o m o f b elief an d asso ciatio n .”); Ma ster Prin ters o f Am. v. Do n o va n , 7 5 1 F

. 2 d 7 0 0
, 7 0 5 (4 th Cir. 1 98 4 ) (“ T o su rv iv e th e ‘ ex actin g scru tin y ’
req u ired b y th e Su

p rem e Co u rt,

. . . th e g o v ern m en t m u st sh ow th at th e d isclo su re an d rep o rtin g req u irem en ts are j u s tif i e d b y a co m

p ellin g g o v ern m en t i n terest, an d th at t h e leg islatio n is n arro w ly tailo red to serv e th at in terest.”); s ee a lso Perry v. S ch wa rze n e

g g e r , 5 9 1 F .3 d 1 1 4 7
, 1 1 5 9

– 6 1 (9 th Cir. 2 0 10 ); Do le v. S erv. Emp s. Un io n , AFL-CIO, Lo ca l 2 8 0
, 9 5 0 F.2 d 1 45 6
, 1 4 6 1 (9 th Cir. 1 9 9 1 ); Bro ck v. Lo ca l 3 7 5

, Plu mb ers In t’l Un io n o

f Am. , 8 6 0 F.2 d 3 4 6, 3 50 (9 th Cir. 1 9 8 8).AF P V

. B E C E R R A 13

“drawn w ith sufficien t ly n a r row specificity to avoid imping ing more broadly upon F irst Amendment liberties than is absolutely n ecessary

. ” Id. at 399 ( citing Buckley
, 424 U.S. at 68).

Our cases have likewise remained f aithful t o NAACP v

. Alabama

. F o r ex ampl e, Brock v. Local 375, P lumbers Internat i onal Union of America recog niz ed that once a plaintiff sho w s t hat disclosure will result in “harassment, membership withdrawal, or discourag ement o f n e w members,” o r otherwise chill associational rig hts, heig htened

scru tiny applies: the g overnment must demonstrate that the information soug ht “is r ationally related to a compelling
g overnmental interest,” and that the disclosure requirement is the least restrictive means of obtaining th a t i nformation. 860 F .2d 346, 350 (9th Cir. 1988) (citing Buckley
, 424 U.S.
at 64, 6 8; Shelton v

. Tucker
, 3 64 U.S. 479, 488 (1960)). W e reaffirmed this approach in Perry v. Schwarzenegger
, where

we emphasiz ed that “[ i] nfring ements on [ the fre edom to associate] may be justified by reg ulati o n s a d opted to serve compelling state interests, unrelate d t o the suppression o f ideas, that cannot b e achieved throug h means sig nificantly less r estrictive of a ssocia tional freedoms.” 591 F .3d 1147, 1159 (9th Cir. 2010) (quoting Roberts , 468 U.S. at 623). 2

I n recent y ears, a few o u t l i ers have e merg e d a nd broken from the uniform application of NAACP v. Alabama when considering challeng es to g overnment-required d i sclosure. W e applied B uckley , rather than NAACP v. Alabama , in two

2 A lth o u g h th ese cases cite b o th to Bu ckley an d to cases settin g o u t th e N A A CP v. Ala ba ma test, see, e.g

. , Bro ck
, 86 0 F .2 d at 3 5 0
, th ey r e m a i n f aith f u l t o th e p rin cip les o f NAACP v. Ala b a ma b y ap p ly in g its h eig h ten ed

scru tin y an d req u irin g n arro w

tailo rin g

.AF P V

. B E C E R R A 14

cases involving stat e d i sclosure requirements outside the electoral c ontex t. See Ams. for P rosperity Found. v. Harris
, 809 F .3d 536, 538–39 (9th Cir. 2015) (per curia m ) (“ AFPF I ”) ; Ctr. for Competitive Politics v. Harris
, 784 F .3d 1307, 1 3 1 2

– 14 (9th Cir. 2015) (“ CCP ” )

. The Second Circuit h a s also r ecently applied Buckley ’ s test—withou t a narrow tailoring r equirement—to a challenge to a g overnment disclosur e requirement outside o f the electoral contex t. See Citizens United v. Schneiderman
, 8 82 F .3d 374, 382, 385 (2d Cir. 2018). B ut none o f these o u t l i e r s offered a convincing rationale for e x t e nding Buckley outside o f the electoral
contex t. Equally important, n one a ddressed a situation in which a plaintiff s h o w ed a reasonable p robability of threats

or hostility in the event of disclosure, see S chneiderman
, 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 o f NAACP v

. A labama ’s test. According l y , these c ases do not bear o n wh e ther NAACP v. Alabama ’s standard must be applied when a plaintiff d oes make su c h a s howing
, reg ardless whether the application of B u ck l ey is appropriate outside of the electoral contex t.

I I

T h e facts of this case make clear that the F oundation is entitled to Fi rst Amendment protection under NAACP v

. Alabama and that California’s d isclosure requirement cannot be constitutionally

applied to the F oundation.

The Americans for Pr o s perity F oundation is a

con s ervative org aniz a tion dedicated to “educating a ndAF P V

. B E C E R R A 15

training c itiz ens to b e a dvocates f or freedom.” 3 I t develops educational p r o g rams to “share knowledg e and tools that
encourag e participants to apply the principles of a free a nd open society

in their daily lives.” 4

People p ublicly affiliated with the F oundation have often faced h arassment, hostility
, and violence, as shown by the evidence adduced at trial in this case. F or ex ample, supporters have received threatening messag es and packag es, had their a ddresses and children’s school addres s e s p osted online in an effort to intimidate them, and received death threats. One blog g er posted a m e s s a ge stating he contemplated assassinating a F oundation suppo r t e r: “I ’m a trained kill e r, y ou know, c ourtesy of U.S. tax pay ers, and it would be easy as pie to

. . . take [him] o ut.” I n the same vein,

a consultant working f

or the F ounda t i o n posted threats o f phy sical violence ag ainst F oundation employ ees. O n a different blog site, a person claiming that he w orked at the F oundation posted that he was “inside the belly of the beast,” and could “easily walk in and slit [ the Fo u n d ation CEO’s] throat.”

F oundation supporters h a v e also been subjected to violence, not just threats. F or instance, at a rally in Michig an, several hundred protestors wieldi n g k nives and box cutters surrounded the F oundation’s tent and sawed at the tent ropes until they w ere severed. F o undation supporters w ere caug ht under the tent when it collapsed, including elderly supporters

3 A m s

. f o r P r o s p e r i t y F o u n d

. , h t t p : / / a m e r i c a n s f o r p r o s p e r i t y f o u n d a t i o n

. o r g ( l a s t

v i s i t e d M a r c h 1 1
, 2 0 1 9 )

.

4 Id

.AF P V

. B E C E R R A 16

who could not g et out on their own. A t l e a s t one supporter was punched by the protestors.

Opponents of the F oundation have also targ eted its supporters with economic reprisal. F or instance, after an article published by Mother Jones mag az ine in F ebruary 2013 revealed donor information, protesters called for boy cotts of the businesses run b y six individuals mentioned in the article. Similarly
, A rt Pope, w ho served on the F oundation’s board o f directors, suffered boy

cotts of his business.

Given this history o f h arassment, the Fo undation was reluctant to make information about its donors public. This

concern beca m e acute in 2010, w hen California suddenly decided to enforce a long dormant disclosure law.

California law r equires any e ntity that wishes to r eg ister

as a charitable o rg aniz ation to submit a multitude of tax forms to the state. See Cal. Code Reg s. tit. 11, § 301. Among

o t h e r r e q u i r e m e n t s , C a l i f o r n i a r e q u i r e s c h a r i t a b l e org aniz ations to file a confidential federal tax f o rm, Schedule B to I RS F orm 990, which contains the names and addresses of any donors who m e e t c e rtain criteria. See id. ; 2 6 U.S.C. § 6033(b); 26 C.F .R. § 1.6033-2(a)(2)(iii)(a ). Under its reg ulations, California may release Schedule B only in response to a search warrant or as need e d in an enforcement p roceeding b rou ght ag ainst a charity by the Attorney G eneral. See Cal. Code Reg s. tit. 11, § 310(b). B ut

as discussed below, the state’s confidential information is so vulnerable to h a cks and inadvertent disclosure that Schedule B information is effectively a vailable for the taking

.

I n l ig ht o f the F oundation’s confidentiality concerns, from 2001 to 2010, it reg istered as a c harity in California withoutAF P V

. B E C E R R A 17

submitting the do n o r i nformation its Schedule B contains. 5 Over that en tire period, California d id not request the F oundation’s Schedule B or list the F oundation’s reg istration

as a c h arity a s deficient in any way

. S ee AFPF II

, 903 F .3d at 1006–07.

I n 2010, California suddenly increased its efforts t o collect charities’ Schedule B s, and in 2013 the state notified th e F oundation that its reg istration was deficient because it had not submitted Schedule B donor information. See id. at 1006. I n an e ffort to protect its donors from likely threats a nd hostility as backlash for their affiliation w ith the F oundation, it filed suit seeking to enjoin California from enforci n g t h i s requirement ag ainst it.

After a multi-day trial, the district court ruled that the First Amendment protects the F oundation from f or c e d disclosure o f its donor information, 6 and it entered a permanent injunction ag a inst California’s enforcement o f the Schedule B requirement as applied to th e F oundation. See Ams. for Prosperity Found. , 182 F . Supp. 3d at 1059.

5 T h e Fo u n datio n ’ s Sch ed u le B in clu d es th e n am es an d ad d resses o f

an y p erso n w h o d o n ated m o re th an 2 p ercen t o f th e Fo u n datio n ’ s an n

u al

co n trib u tio n s. S

ee 2 6 C.F.R. § 1 .6 0 3 3

- 2 (a)(2 )(iii)(a).

6 T h e d istrict co u rt in itially en tere d a p relim in ary in j u n ctio n ag ain st Calif o rn ia’ s en f

o rcem en t ag ain st th e Fo u n d atio n

. S ee AFPF II

, 90 3 F.3 d
at 1 0 0 6

. A p a n e l o f o u r co u rt rev ersed in p art o n th e g ro u n d th at th e Fo u n datio n h ad n o t sh o w n ev id en ce o f p a s t h o stility to w ard Fo u n d atio n d o n o rs o r a reaso n ab le p ro b ab ility o f f u tu re h o stility

. S

ee AFP F I
, 8 0 9 F.3 d at 5 39

– 4 1

. On r e m an d
, th e Fo u n datio n p resen ted ev id en ce of b o th

. S ee Ams. fo r Pro sp erity Fo u n d

. , 1 8 2 F. Su

p p . 3 d 1 0 4 9

.AF P V

. B E C E R R A 18

I I I

The panel reversed, ho l d ing that California’s interest in Schedule B information was “ sufficiently important” and that there w as a substantial relation between the requirement a nd the state’s interest. AFPF II
, 903 F .3d at 1008 (quoting Doe
, 561 U .S. at 196). I n reaching this conclusion, the panel made crucial factual and leg a l errors.

The panel’s leg a l error is evident. Althoug h this case

arose outside of the election c o n tex t, and the F oundation established that its members mig ht be e x posed to harassment and a buse if their identities were made public, the panel mistakenly applied Buckley ’s “ e xa c t i n g s crutiny ” and rejected the F o u ndation’s arg ument that a n a r row tailoring requirement applied in this c ontex t. See AFPF II
, 9 0 3 F. 3 d at 1008–09.

The panel’s factual errors a re equally eg re g ious. As a g eneral rule, appellate courts may not override the facts f ound by a district court unless they are clearly e r r o n e ous. I n our circuit, “we will a ffirm a district court’s f actual finding unless that finding is illog ical, i m p lausible, or without support in inferences that may be drawn from the record.” United States

v. H inkson
, 585 F .3d 1247, 1263 ( 9 t h C i r

. 2009) (en banc). H e re, the panel not o nly failed to defer to the district c ou r t , but reached factual conclusions that w ere unsupported by the record.

F irst, the district court h eld that disclosure of the Schedule B information to the state could result in the names of the F oundation’s d onors being released to the public. See A m s

. for P rosperity Found.
, 182 F

. Supp. 3d at 1 057. T h e district court squarely rejected the state’s arg ument that noAF P V

. B E C E R R A 19

d onor information disclosed to the state would be publicl y disclosed because it w ould remain confidential on the state’s

servers. See id. Th e e v i d e n ce produced at trial in this case provided overwhelming s upport for the court’s finding s. There was ample evidence of human error in the operation o f the state’s sy stem. State employ ees were shown to h a v e an established history of disclosing confidential info r m a tion inadvertently
, usually by incorrectly u plo a d ing confidential documents to t h e s t ate website such that they were publicly posted. Suc h m i s t akes r esulted in the public posting o f around 1,800 confidential Sche dule B s, left clickable for
any one who stumbled upon them. A F PF II
, 903 F .3d at 1018. And the p ublic did find them. F or instance, in 2012 Planned Parenthood b e come aware that a complete Schedule B for Planned Parenthood A ffiliates of California, I nc., for the 2009 fiscal y ear was publicly posted; the docum ent included the names and addresses of hundreds of donors.

T h er e was also substantial evidence that California’s computeriz ed reg istry of charitable co r porations was shown
to be an open door for hackers. I n preparati o n f or trial, the plaintiff asked its ex pert to test the security o f the reg istry

. He was readily able to access every c onfidential document in
t h e r e g i s t r y

— m o r e t h a n 3 5 0
, 0 0 0 c o n f i d e n t i a l documents—merely by chang ing a sing le dig it a t the end o f the w e bsite’s URL

. See AFPF II
, 903 F .3d at 1 018. W h en the p laintiff alerted California to this vulnerability
, its ex perts tried to fix this hole in its sy stem. Yet when the ex pert used the ex a ct same method the week before t r i a l to test the
reg istry
, he was able to find 40 more Schedule B s that should have been confidential.

I n rejecting the d istrict court’s factual conclusions, the panel v i o l at ed our standard of review as well as commonAF P V

. B E C E R R A 20

sense. The panel concluded that in the future, all Schedule B information would be k e pt confidential. I t reasoned that because the state tech nician was a b le to fix the security vulnerability ex posed b y the F o undation’s ex pert, “[ t] here is

no evidence to sug g est th a t t h i s ty pe o f error is likely to

r e c u r .” Id. a t 1 018. The p anel d id not a ddress the fac t t h at

even a week before trial, the state could not prevent a second disclosure based on the same security vulnerability

. F urther, the panel claimed that despite the state’s long h i s t o ry o f inadvertent d i sclosure of Schedule B information throug h human error, the state’s ne w e f f orts to correct human errors throug h additional “procedural quality checks” and “a sy stem of tex t-searching batch uploads before they are scanned to the Reg istry site to ensure none contains Schedule B key words” would obviate future d i sclosures. Id. B ut no evidence supports this claim, and it is cont r a r y t o any real-world

ex p erience.

Second, the district court found that the state d id not have

a strong interest in obtaining the Schedul e B submissions to further its enforce m en t g oals. I nstead, it held that Ca lifornia’s up-front Schedule B submission r equirement “demonstrably play e d no role in a dv ancing the Attorney G e neral’s law enforcement g o als f or the past ten y ears

. ” Ams. for Prosperity Found.
, 1 82 F

. Supp. 3d at 1055. I ndeed, California could not p oint to “even a sing le, concrete instance in which pre-investig ation collection o f a Sch edule B did
any thing to advance the Attorney General’s inve s tig a tive,
reg ulatory or enforcement efforts.” Id. The panel rejec t ed this w ell

- s u p p orted finding based solely on the conclusory
, blanket assertions m a d e by state w itnesses that up-front disclosure of donor names increa s e s “investig ative efficiency

. ” AFPF II

, 903 F .3d at 1010. Yet the Su preme Court has made c lear that a state’s “mere assertion” that thereAF P V

. B E C E R R A 21

w a s a substantial relationship between the d isclosu r e requirement and the state’s g oals is not enoug h to establish such a relationship. S

e e B a t e s , 361 U.S. at 525; Gibson
, 3 7 2 U.S. at 554–55. And the record does not other wi s e support the panel’s conclusion.

Finally
, the district court found ample evidence tha t F oundation suppo r ters would likely be subject to threats o r hostility should their affiliations be disclosed. See A ms

. f o r Prosperity Found.
, 182 F

. Supp. 3d at 1055–56. B ut based on its unsupported assumption that public disclosure would not
occur, the panel felt justified in disreg ardin g t h i s wellsupported conclusion. AFPF II , 903 F .3d at 1017.

Given the panel’s erro n e ous factual determinations that there would be no public disclosure of F o undation donors a nd that California’s disclosure requirement w as substantially related to its enforcement g o als, an d i t s mistaken leg al decision that no n arrow tailoring was r equired, it is not surprising that the panel easily arrived at the conclusion that the donors were not entitled to any prot e ction of their F irst Amendment rig hts.

I V

B u t contrary to the panel, the full protection of NAACP v

. Alabama was warranted in this case, because the F ounda t i on’s donors may be e x posed to harassment a nd abuse if thei r i d entities are disclosed, and the special

c o n s i d e r a t i ons reg arding g overnment-required disclos u r e s f o r elections a

re not present. S

ee, e.g. , Primus
, 436 U.S. at 432; Brock
, 8 60 F .2d at 350. H a d the panel properly recog niz ed NAACP v. Alabama ’s applicability
, it would have considered (1) whether California p resented a compelling interest that isAF P V

. B E C E R R A 22

(2) substantially related to the disclosure requirement, a nd (3) whether the requirement was narrowly tai l o r e d to the articulated interest. See 357 U.S. at 462–63; Gibson
, 372 U.S. at 546; Gremillion , 366 U.S. at 297.

Apply ing the correct test, it is c lear that California failed
to show that its Schedule B disclosure requirement is “substantially related” to any interes t in policing charitable fraud. A state’s “mere a ssertion” that there was a substantial relationship between the disclosure requirement a nd t h e state’s g oals is not e noug h to e stablish 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 finding s establish that the Schedule B s are rarely used to detect fraud or to enhance enforcement efforts.

Nor is California’s d isclosure requirement n arro wly tailored; rather, the means “broadly s t i fle fundamental personal liberties” and “the end can be more narrowly achieved.” Gremillion
, 366 U.S. at 296 ( q uoting Shelton
, 364 U.S. at 488). The state requires blanket S ch e d ule B disclosure from every reg istered cha r i t y when few are ever investig ated, a

nd less restrictive and more tailored means for the Attorney General to obtain the desired information a re readily avai l a b l e

. I n p articular, the Reg istry can obtain an org aniz ation’s Schedule B throug h a subpoena or a request in

an audit letter once an investig a tion is underway without any harm to the g overnment’s interest in policing charitable fraud. Moreover, the state failed to provide a n y ex ample of an investig ation obscured by a c harity ’s evasive activity a fter receipt of an audit letter or subpoena r equesting a Schedule B
, althoug h state witnesses m a d e assertions to that e ffect. See AFPF II
, 9 03 F .3d at 1010–11. The panel’s erroneous application of Buckley led i t t o ig nore this r equirementAF P V

. B E C E R R A 23

completely
, a

nd it d emanded no e x planation from California for why such a sweeping disclosure requirement—imposed before the state has a

ny reason t o i nvestig ate a charity —is justified g iven equally effective, less restrictive means ex ist. See id. at 1011–12.

Acc o r d i n gly
, under the p roper application of the test to the facts found by the dist rict court, the F oundation was entitled to F irst Amendment protection of its don o r l i sts. B ecause California failed to show a substantial relation between its articulated interest and its disclosure requirement, and b e cause it failed to show that the requirement w a s

n a r rowly tailored, California’s Schedule B disclosure requirement fails the te s t p rovided by NAACP v. Alabama
, and it should have b e e n struck down as applied to the F oundation.

The panel’s contrary conclusion eviscerates t h e F irst A m e n dment protections long -established by the Supreme Court. B y apply ing Bu ck l e y where NAACP v. Alabama ’s hig her standard should have been trig g ered, the panel lowered the bar g overnments must surmount to force discl o s u r e o f sensitive associational ties. U nder the panel’s standard, a state’s self-servin g a s s ertions about efficient law enforcement

are enoug h to justify d isclosures notwithstanding the threats, hostility
, a

nd e conomic reprisals ag a inst socially d isfavored
gr oups that may ensue. And by rejecting the d istrict court ’s factual finding s that disclosed donor lists will become public and ex pose individuals to real threats of harm, t he panel imposes a nex t-to-impossible evidentiary burden on plaintiffs seeking protection of their associational rig hts. I ndeed, if the F oundation’s evidence is not enoug h to show that California
cannot adequately secure its information, no plaintiff will be able to overcome a state’s empty assurances. “The possibilityAF P V

. B E C E R R A 24

of prevailing in an as-applied challeng e provides adequate protection for F irst A mendment rig hts o nly if

. . . the showing
necessary to obtain the e x emption is not overly b urdensome.” Doe , 561 U.S. at 203 (Alito, J ., concurring ).

V

I n short, the panel’s conclusion is contrary to the reasoning and spirit of d e c a d es o f Supreme Court jurisprudence. U nder the panel’s analy sis, the g overnment

can put the F irst Amendment associational rig hts of members and contributors at risk for a list of names it does not n eed, so long as it promises to do better in the future to avoid p u b l ic disclosure of the names. Given the inability of g overnments to keep data secure, this standard puts any one with controversial views at r isk. W e should have reheard this case

en b a nc to r eaffirm the vitality o f NAACP v. Alabama ’s protective doctrine, and to c larify that Buck l e y ’ s watereddown standard has no place outside of the electoral contex t.

The F ir s t Amendment freedom to associate is vital to a functioning civil society

. F or g r oups with “dissident beliefs,” it is frag ile. The Supreme Court has recog niz ed this time a nd time ag ain, but the panel decision strips these g roups of F irst Amendment protection. I dissent from our de c i s ion not to correct this error.AF P V

. B E C E R R A 25

F I SHER, PAEZ and NGUYEN, Circuit J udg es, r es p onding to the dissent from the denial of rehearing en banc:

The State of California, l i k e the f ederal g overnment,

r e quires tax -ex empt § 501(c)(3) org aniz ations to file ann u al
returns with reg u lators charg ed with p r otecting the p u b l i c ag ainst charitable f

raud. Among ot her thing s, these
org aniz ations are required to r eport the names and addresses of their larg e st contributors on I RS F orm 990, Sc h e d u le B

. The informat i o n i s provided to r eg u lators, who use it to prevent c haritable fraud, but it is not made pu b l i c

. Both circ u its to c onsider the question h ave c oncluded that F irst Amendment c halleng es to these re q u i rements are subject to

ex a c ting
, r ather than strict, scrutiny
, a n d bo t h circuits have held th a t these requirements satisfy ex acting scrutiny

. See Ams. for Prosperity Found. v. Becer r a ( AFPF II )
, 903 F .3d 1000 (9th Cir. 2018); Citizens U n ited v. Schneiderman
, 882 F .3d 374 ( 2d Cir. 2018); Ams. for Pr o sperity F o und. v

. Harris ( AFPF I ), 809 F .3d 536 (9th Cir. 20 1 5 ) ; Ctr. for Competitive Politics v. Harris
, 784 F .3d 1307 (9th Cir.), cert. denied
, 136 S. Ct. 480 (2015). A s t h e s e courts have
recog niz ed, requiring the nonpublic disclosure of Schedule B inf ormation comports with the f reedom of a ssociation protected by the F irst Amendment because it allows state a nd federal reg ulators to pr otect the p ublic from fraud without

ex p os i n g c ontributors to the threats, harassment o r reprisals that mig ht follow public disclosure.

I

Org a niz ations operated ex clusively for relig ious, charitable, scientific or educational purposes are elig ible for

an ex emption from federal and state tax es under § 501(c)(3) of the I nternal Revenue C o d e and § 23701 of the CaliforniaAF P V

. B E C E R R A 26

Revenue & Tax Code. Org a n iz ations avail themselves of this
status to avoid tax es and c o llect tax -deductible contributions.

B e cause this favored tax treatment presents opportunities for self-dealing
, fraud a n d abuse, org aniz ations availing themselves of § 501(c) ( 3) status a r e subject to federal a

nd
state oversig ht. Cong ress h as required every org a n i z ation

ex e mpt f r om tax ation under § 503(c)(3) to file an annual information return (F orm 990 se ri e s) with the I nternal Revenue Service, setting forth detailed informat i o n on its income, e x penditures, a ssets and liabilities, including
, a s relevant here, “the total of the contributions and g ifts received by it during the y ear, and the n a mes a nd addresses o f all substanti a l contributors.” 26 U.S.C. § 6 0 33(b)(5). Org a niz ations such as p laintiffs A m e ri cans for Prosperity F oundation and Thomas More L a w Center are required to report the name and address of a ny p e r son who contributed the g reate r o f $ 5,000 or 2 percent of the org aniz ation’s total

c o n t r i b u t i o n s f

o r t h e y e a r

. S e e 2 6 C

. F

. R

. § 1.6033-2(a)(2)(iii)(a). An org aniz a tion with $10 million in annual r evenue, for ex ample, must report contributors w ho have g iven in e x c ess of $200,000 for the y ear. B etween 2010 and 2 0 1 5
, the Thomas More L aw Center was required to report no more than seven contributors; Americans for Prosperity F o u ndation was r equired to report no more than 10 contribut o r s – those contributing o ver $250,000. Org a niz ations report this information on I RS F orm 9 9 0, Schedule B

.

This information is reported not only to the I RS but also to state reg ulators. California’s Supervision of Trustees and Charitable Trusts Act requires t h e Attorney General to maintain a reg istry of charitable o rg aniz ations and a uthoriz e s the A ttorney General to obtain “whatever information, copiesAF P V

. B E C E R R A 27

of instruments, reports, a nd records a

re needed” for the
reg istry ’s “establishment and maintenance.” Cal. Gov’t Code § 12584. To solicit tax -deductible contrib u t i o ns from California residents, an org aniz a tion must maintain membership in the reg istry
, s e e id. § 12585, and as o ne condition of reg istry mem b ership, charities must submit a complete copy of the I RS F orm 990 they already file with the I RS, including Schedule B
, see Cal. Code Reg s. tit. 11, § 301.

This contributor informati o n is not made public. See 26 U.S.C. § 6104(d)(1)(A)(i), (3)(A ); Cal. Gov’t Code § 12590; Cal. Code R eg s. tit. 11, § 310. The California Attorney General keeps Schedule B s in a separ a t e f i l e from other submissions to the re g istry and e x cludes them from public inspection o n the re gi s t r y website. See AFPF II
, 90 3 F. 3d at 1005. Only information that does n o t identify a contributor is available for public inspection.

I I

Some § 501(c)(3) org aniz ations object to the Schedule B reporting requirement. They arg ue that by submitting their Schedule B information to reg ulators, they ex pose their major contributors to threats, harassment and reprisals – from those
reg ulators and from the public – w hich in turn discourag e s contribution s. They arg ue, therefore, that this r equirement violates the freedom of associa t i o n p rotected by the F irst Amendment.

The two federal a p p ellate courts to have addressed the issue, ours and the Second Circuit, h ave rejected these claims. S ee AFPF I

I
, 903 F .3d 1000; Schneiderman
, 8 82 F .3d 3 7 4 ; AFPF I
, 809 F .3d 536; Ctr. for Competitive Politics
, 784 F .3d 1 3 0 7. T hese courts have ag reed that e x acting rather t h a nAF P V

. B E C E R R A 28

strict s c rutiny applies, see AFPF II
, 903 F .3d at 1008; Schneiderman
, 882 F

. 3 d at 381–82; AFPF I
, 809 F .3d a t 541; Ctr. for Competitive Politics
, 7 84 F .3d a t 1 3 1 2
, a nd that the Schedule B requirement survives e x acting scrutiny
, because the requirement serves an important g overnmental interest in preventing charitable fraud without imposing a subst a n t i al burden on the ex ercise of F irst Amendment rig hts.

The dissent from the deni a l o f rehearing e n banc challeng es these decisions, a r gu ing that a form of strict scrutiny applies a

nd that California’s Schedule B r equirement is unconstitutional. I n our view, the dissent’s arg u ments a re not well taken.

I I I

The bulk of the dissent is devoted to the arg ument that we erred by a

pply ing ex acting scrutiny

. Ac c o rding to the diss e n t , Fi r s t A m e n d ment challeng es to disclosure requirements are subject to two different tests:

1. I n the e lector al contex t, “ex a cting scrutiny ” a pplies. This “standard requires a substantial relation b etween the disclosure require ment and a sufficiently important g overnmental interest. To withsta nd this scruti n y , the streng th of the g overnmental interest
must reflect the seriousness of the a c t u al burden on F irst Amendment rig hts.” Doe v. Reed
, 561 U.S. 186, 196 (2010) (citations a

n d internal qu otation marks omitted).

2. Outside the electoral contex t, “heig htened scrutiny ” applies. This standard requires (1) a “ compell ing interest,” (2) “a su b s t a ntial relationship between theAF P V

. B E C E R R A 29

information soug ht and the compelling state interest” and (3) narrow tailoring

. Dissent at 5. T h e dissent refers to this strict-scrutiny -like test a s “heig htened scrutiny ” or the “

NAACP v. Alabama test.”

This case does not arise in the electoral contex t. Hence, according to the dissent, we should have applied the dissent’s
propos e d “ heig htened scrutiny ” test rather than ex acting

s crutiny

. H ad we done so, the dissent say s, we w o u l d h a v e invalidated California’s Schedule B requirement.

W e respectfully disag ree w ith the dissent’s contention that F irst Amendment challeng es to disclosure requirements

are subject to two different tests. I n our view, there is only a sing le test – ex acting scrutiny – that applies both within a nd without the e lectoral contex t. This test o rig inated in NAACP

v. Alabama
, 357 U.S. 449 (1958), and the other Civil Rig hts Era cases – Bates v. City of Little Rock
, 361 U.S. 516 (1960), Shelton v. Tucker
, 364 U .S. 4 79 (1960)
, Louisiana e x rel. Gremillion v. NAACP
, 366 U.S. 293 ( 1961), G i b s o n v

. Fla. Legislative Investigation Comm.
, 3 72 U.S. 539 ( 1963) – a nd has been applied more recently in Buckley v. Valeo
, 424 U.S. 1 (1976), Doe and other cases arising in the electoral contex t. As Doe ex plains, the ex acting scrutiny test:

require s a substantial relation between the disclosure requirement and a sufficien tly i m p o r t a n t gove r n m e n t al i n t e r e s t

. T o withstand this scrutiny
, the s t r eng th of the
g overnmental interest must r eflect the seriousness of the actual b urden on F irst Amendment rig hts.AF P V

. B E C E R R A 30

561 U.S

. a t 1 96 (citations and internal quotation marks omitted).

W h ereas strict scrutiny requires a compelling interest a nd

n arrow tailoring in every c ase, the interest and tail o r i n g required under ex acting scrutiny varies from case to c ase, depending on the actual burden on F irst A mendment rig hts at stake: the g overnmental i n t e r est must be “ sufficiently important” to justify the “ actual burden o n F irst A mendment rig hts” in the case at hand. Id. ( emphasis adde d )

. Thus, where the burden that a disclosure requirement places on F irst Amendment r ig hts is g reat, the interest and the fit must be a s well. See, e.g. , Buckley
, 424 U.S. at 25 (“Even a significant interference with protected rig hts of political association may be sustained if the State demonstrates a sufficiently important in t e rest and employ s means closely drawn to avoid

unneces s a ry a b r i d gm e n t o f a s s ociational freedoms.” (emphasis added) (internal quotation marks om i t t ed)); Gibson
, 372 U.S. at 546 ( “W here there is a sign ificant encroachment upon personal liberty
, the State may prevail

o n l y upon showing a subordinating interest which i s compelling .” (emphasis added) (quoting Ba t e s , 361 U.S. at 524)); Gremillion
, 36 6 U.S. at 296 (“[ E] ven thoug h the
g overnmental purpose be leg itimate and substantial, th at purpose cannot be pursued by means t h at broadly stifle fundamental personal l i berties when the end can be more narrowly a chieved.” (emphasis a dded) (quoting She lton
, 364 U.S. at 488)); Shelton
, 36 4 U

. S. at 488 (same); B a tes , 361 U.S. at 524 ( “W here there is a significant encroachment
upon personal li b e r ty , the State may prevail only upon showing a subordinating i n terest which is compelling

. ” (emphasis a dded) (citing NAACP v. Alabama
, 357 U.S. 449));

s e e also R. Georg e W rig h t, A Hard Look at Exact i n g Scrutiny
, 85 UMKC L

. Rev. 207, 210 (2016). B ut where, a sAF P V

. B E C E R R A 31

here, the actual burden is slig ht, 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

. A l a b ama a pplied somethi ng other than ex a cting scrutiny

. W e are not persuaded. F irst, the Supreme Court has already told us that NAACP v. Alabama applied ex acting scrutiny : “Since NAACP v. Alabama w e h ave required that the subordinating i n t erests of the State must survive ex acting scrutin y

. ” Buckley
, 424 U.S. at 64. Second, there is simply n o way to read NAACP v. Alabama as apply ing any thing other than the

e x a ct ing scrutiny test d escribed in Doe

. The only question the Court decided in NAACP v. Alabama was whether the
state had “demonstr a ted an interest in obtaining the disclosures it seeks from petitioner w hich is suffi c i en t to justify the deterrent effect which we have concluded these disclosures may well have on the free ex e rcise b y petitioner’s members of t heir constitutionally p rotected rig ht o f association.” NAACP v. Alabama
, 357 U.S. at 463 (emphasis added). The disclosure requirement fail e d solely because “Alabama has fallen short of sho wing a controlling justification for the deterrent effect on the free enjoy ment of the rig ht to associate which disclosure of membership lists is likely to have.” Id. at 466. There is no lig ht between the test applied in NAACP v. Alabama and the one described in Doe

.

I n sum, we properly

applied ex acting scrutiny

.

I V

The dissent also challeng e s o ur con c l u sion that California’s Schedule B requirement survives ex acting scrutiny

. As noted, a discl o s ure requirement withstandsAF P V

. B E C E R R A 32

scrutiny under th i s t es t if the streng th of the g overnmental interest r eflects the seriousness of the actual burden on F irst Amendment rig hts. See Doe
, 561 U.S. at 196. Here, the
st a t e ’s strong interest in collecting Schedule B information justifies the modest b urden that n onpublic disclosure pla c e s on the ex e rcise of F irst Amendment rig h ts.

A. S trength of the Governmental Interest

W i th respect to the state’s interest in collecting Schedule B information, the evidence was undisputed that the
state u ses Schedule B information to investig ate charitable fraud. See AFPF II

, 903 F .3d at 1011. “Current and former members of t he Charitable Trusts Section, for ex ample, testified that they found the Schedule B particularly useful in

se v e r a l investig ations over the past few y ears, and provided

ex a mples. They were able to use Schedule B information to trace money used for improper purposes in c onnection with

a charity serving animals after Hurricane Katrina; to identify a charity ’s f

ounder as its principal contributor, indicating he

was u sing the research charity as a p ass

- t hroug h; to identify self-dealing in that same charity ; to track a fo r- p r o f it corporation’s use of a non-profit org aniz ation a s an improper vessel for g ain; an d t o investig ate a cancer charity ’s g ift-inkind fraud.” Id. C i r c u its have consistently recog niz ed the
stren g t h of this interest. See, e

. g. , S chneiderman
, 882 F .3d
at 384; Ctr. for Competitive P olitics
, 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 i n formation. State reg ulators testified that attempting to obtain a Schedule B from a reg ulated e n tity after an investig ation beg ins is inef f e c t i ve “[ b] e cause it’s time-consuming
, and y ou are tipping the charity off that theyAF P V

. B E C E R R A 33

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

a subpo e n a or audit letter “would tip them off to our investig ation, which w o u l d a l l o w t h e m p otentially to dissipate

m o re assets or hide assets or destroy documents, w h i c h certainly h appened several times; or it just allows m o r e d amag e to be done to [ the] charity .” Id. ; accord Ct r

. f o r Competitive Politics
, 784 F .3d at 1317.

Althoug h the district court questioned the streng th of the
g overnmental interest, it d id so by apply ing an erroneous leg al stand a r d
, requiring the state to establish that up-front collection o f 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 reg ulate charitable org aniz ations wi t h out collecting Schedule B information, see Thomas More Law C tr. v. Harris
, No. CV 15-3048-R, 2 0 16 W L 6781090, at *2 (C.D. Cal. N ov. 16, 2016). B y a

pply ing the w rong leg al standard, the district
court abused its discretion, see Unite d States v. Hinkson
, 585 F .3d 1247, 12 5 1 (9th Cir. 2009) (en banc), a nd disreg arded a previous ruling by this c ourt in this v ery c ase,

see AFPF I

, 809 F .3d a t 541 (reject i n g a least restrictive means test).

B

. A ctual Burden on First Amendment Rights

To determi n e the actual b urden on F irst A mendment rig hts, we looked at two questions: (1) the likelihood that the plaintiffs’ Schedule B contributors would f ace 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.AF P V

. B E C E R R A 34

W e ultimately declined to reach any conclusi o n with respect to the first question. See id. at 1017. The evidence on that question was mix e d

. Neither plaintiff, for ex ample, identified a sing le c ontributor w ho would withhold financial support b ased on the plaintiffs’ compliance with California’s Schedule B disclosure req u i rement. See id. at 1014. The Thomas More L aw Center, moreover, has consistently over

reported c ontributor information o n its Schedule B filing s,

u n d e r m i n i n g i t s c o n t ention that reporting deters contribut i o n s

. See id. F ur t h e r m o r e, many o f the plaintiffs’ Schedule B contributor s are already publicly k nown. Private foundations, for e x ample, are r equired by law to publicly disclose their contributions to the p laintiffs. See id. at 1015. Other Schedule B contributors

– such as Charles and David Koch

–
are already publicly identified with the plaintiffs. I n addition, althoug h the evidence showe d t hat individuals who a re associated with the plaintiffs, such as the Koch brothers, have faced threats or harassment based on t h e i r controversial activities, the plaintiffs “presented little evidence bearing on whether h arassment has occurred, o r is likely to occur, simply because an individual or entity provi d e d a larg e financial

co n tribution to the F o undation or the L aw Center.” Id.
at 1016 & n.6. I n 2013, the National J ournal published copies of the F oundation’s Schedule B s, but t h e F oundation presented no evidence that contributors suffered retaliation a s a result. S

ee id. at 1017.

Ul t imately
, because California, like the federal
g overnment an d other states, requires only the nonpublic disclosure of Sc h e dule B information, we did not need to decide whether, in t h e event of public disclosure of the Schedule B information
, the plai n t i f fs’ Schedule B contributors were likely to encounter threats, harassment o r reprisals. S

ee id. at 1017. W e acknowledg ed the ris k o fAF P V

. B E C E R R A 35

inadvertent public disclosure based on past confidentiality lapses by the state. See id. at 1018. W e ex plained, however, that “[ t] he state’s past c onfidentiality lap s e s [ were] of two

v a rieties: first, human e rror when Reg istry staff misc o d e d Schedule B forms during u p l o a d ing ; a nd second, a software vulnerability that failed to block access to a plaintiff’s ex pert

as he probed the Reg istry ’ s servers for flaws during this litig ation.” Id. at 1018. W e ex plained that the s oftware problem stemmed from a third-party vendor, had b e en “quickly r emedied” and w as not “ l ikely to recur.” Id. W ith respect to the problem of human error, we ex plained that

the Reg istry Unit has implemented s t r o ng er protocols to preven t h u man error. I t has imp lemented “procedural quality checks

. . . to sample work as it [is] being performed” a nd
to ensure it is “in accordance with procedures

on handling documents and [ i ndex ing them] prior to uploading .” I t has f urther implemented a sy stem of tex t-searching batch uploads before th e y are scanned to the Reg istry site to ensure none contains Schedule B key words. At the time of trial in 2016, the Reg istry U nit had ha l ted batch uploads altog ether in f

avor of loading each document individually
, as it was r efining the tex t-search
sy stem. A fter forms ar e loaded to the Reg istry
, the Charitable Trusts Section runs

an automated w eekly script to ide ntify a nd

r e m o v e a n y d o c u m e n t s t h a t i t h a d inadvertently misclassified as p ublic. There is also no d ispute that the Regi s try Unit immediately r emoves any information that anAF P V

. B E C E R R A 36

org aniz ation identifies as having b e e n misclassified for public access.

Id. T here was n o evidence that these “cy b ersecurity protocols

are d eficient or substandard as compared to e ither the industry or the I RS, w hich maintains the same confid e n t i al information.” Id. at 1019.

W e also emphasiz ed that we wer e addressing an asapplied challeng e. See id. The key question, therefore, was
not whether there was a “risk of inadvertent d isclosure of a ny Schedule B information in the f u t u re,” but rather whether there was a sig nificant “risk of inadvertent disclosure of the plaintiffs’ Schedule B information in particul a r .” Id. There

can be no question that this risk – which the district court failed to consider – is ex c eeding ly small, so the plaintiffs did
not show “a reasonable probability t h a t the compelled disclosure of [ their major] contributors’ names will subject
t h e m to threats, harassment, o r reprisals f rom either Government officials or private p arties.” B uckley
, 424 U.S.
at 74. The state’s interest in obtainin g t h e plaintiffs’ Schedule B information therefore was sufficient under Doe to justify the modest burden on F irst Amendme n t rig hts. See AFPF II , 903 F .3d at 1019.

V

Our c olleag ues sensibly declined t o rehear this case en b a n c

. Our decision to apply ex a cting scrutiny is consist e n t with Supreme Court precedent, see Doe
, 561 U

. S

. at 196; Buckley
, 424 U.S. at 6 4, NAACP v. Alabama
, 357 U.S. at 463, Nin t h C i r cuit precedent, see Ctr. for Competitive Politics
, 784 F

. 3d at 1312–13, and out-of-circu i t precedent, see Schneiderman
, 882 F .3d at 381–82. L ikewise, our conclusionAF P V

. B E C E R R A 37

that the Schedule B reporting requirement survives ex acting

s crutiny is consistent with both Ninth Circuit and out-o f

circuit precedent. Se e S

c hneiderman
, 8 82 F .3d at 383–85; Ctr. for Competitive Politics
, 784 F .3d at 1312–17. Althoug h only two circuits have addressed the issue, they have uniformly held that n onpublic Schedule B re p o rting requirements satisfy the F irst Amendment because they allow
state and federal reg ulators to protect th e p u b lic from charitable fraud without subjecting major contributors to the threats, harassment or reprisals that could flow from public disclosure.