Americans for Prosperity Found v. Xavier Becerra

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AMERICANS FOR PROSPERITY No. 16-55727
FOUNDATION,
Plaintiff-Appellee, D.C. No.
2:14-cv-09448-
v. R-FFM

XAVIER BECERRA, in his Official
Capacity as Attorney General of
California,
Defendant-Appellant.

AMERICANS FOR PROSPERITY No. 16-55786
FOUNDATION,
Plaintiff-Appellant, D.C. No.
2:14-cv-09448-
v. R-FFM

XAVIER BECERRA, in his Official
Capacity as Attorney General of
California,
Defendant-Appellee.
2 AMERICANS FOR PROSPERITY V. BECERRA

THOMAS MORE LAW CENTER, No. 16-56855
Plaintiff-Appellee,
D.C. No.
v. 2:15-cv-03048-
R-FFM
XAVIER BECERRA, in his Official
Capacity as Attorney General of the
State of California,
Defendant-Appellant.

THOMAS MORE LAW CENTER, No. 16-56902
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-03048-
R-FFM
XAVIER BECERRA, in his Official
Capacity as Attorney General of the
State of California, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted June 25, 2018
Pasadena, California

Filed September 11, 2018

Before: Raymond C. Fisher, Richard A. Paez
and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Fisher
 AMERICANS FOR PROSPERITY V. BECERRA 3

SUMMARY *

Civil Rights

The panel vacated the district court’s permanent
injunctions, reversed the bench trial judgments, and
remanded for entry of judgment in favor of the California
Attorney General in two cases challenging California’s
charitable registration requirement as applied to two non-
profit organizations that solicit tax-deductible contributions
in the state.

Plaintiffs qualify as tax-exempt charitable organizations
under § 501(c)(3) of the Internal Revenue Code, 26 U.S.C.
§ 501(c)(3). They challenge the Attorney General of
California’s collection of Internal Revenue Service Form
990 Schedule B, which contains the names and addresses of
their relatively few largest contributors. Plaintiffs argue the
state’s disclosure requirement impermissibly burdens their
First Amendment right to free association.

The panel held that the California Attorney General’s
Schedule B requirement, which obligates charities to submit
the very information they already file each year with the IRS,
survived exacting scrutiny as applied to the plaintiffs
because it was substantially related to an important state
interest in policing charitable fraud. The panel held that
plaintiffs had not shown a significant First Amendment
burden on the theory that complying with the Attorney
General’s Schedule B nonpublic disclosure requirement
would chill contributions. The panel further concluded that

*
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 AMERICANS FOR PROSPERITY V. BECERRA

even assuming arguendo that the plaintiffs’ contributors
would face substantial harassment if Schedule B information
became public, the strength of the state’s interest in
collecting Schedule B information reflected the actual
burden on First Amendment rights because the information
was collected solely for nonpublic use, and the risk of
inadvertent public disclosure was slight.

COUNSEL

Alexandra Robert Gordon (argued), Jose A. Zelidon-
Zepeda, Kevin A. Calia, and Emmanuelle S. Soichet, Deputy
Attorneys General; Tamar Pachter, Supervising Deputy
Attorney General; Douglas J. Woods, Senior Assistant
Attorney General; Xavier Becerra, Attorney General; Office
of the Attorney General, San Francisco, California; for
Defendant-Appellant/Cross-Appellee.

Derek Shaffer (argued), William A. Burck, Eric C. Lyttle,
Keith H. Forst, and Jonathan G. Cooper, Quinn Emanuel
Urquhart & Sullivan LLP, Washington, D.C.; Harold Barza,
Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles,
California; for Plaintiff-Appellee/Cross-Appellant.

Tara Malloy, J. Gerald Hebert, and Megan P. McAllen,
Campaign Legal Center, Washington, D.C., for Amicus
Curiae Campaign Legal Center.

Jeremy Talcott and Joshua P. Thompson, Pacific Legal
Foundation, Sacramento, California, for Amicus Curiae
Pacific Legal Foundation.

Marc Rotenberg, Alan Butler, James T. Graves, and John
Davisson, Electronic Privacy Information Center,
 AMERICANS FOR PROSPERITY V. BECERRA 5

Washington, D.C., for Amicus Curiae Electronic Privacy
Information Center.

David Weiner and Robert Leider, Arnold & Porter Kaye
Scholer LLP, Washington, D.C., for Amicus Curiae The
Philanthropy Roundtable.

Keith Joseph Miller, Assistant Attorney General; Dominic
E. Draye, Solicitor General; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona,
for Amici Curiae States of Arizona, Alabama, Louisiana,
Michigan, Nevada, Texas, and Wisconsin.

Mark Joseph Fitzgibbons, American Target Advertising,
Manassas, Virginia, for Amicus Curiae American Target
Advertising, Inc.

Allyson Newton Ho and John C. Sullivan, Gibson Dunn &
Crutcher LLP, Dallas, Texas; C. Dean McGrath Jr., McGrath
& Associates, Washington, D.C.; for Amici Curiae Pacific
Research Institute, Cato Institute, and Competitive
Enterprise Institute.

Christopher H. McGrath and Samuel S. Sadeghi Paul
Hastings LLP, Costa Mesa, California; George W. Abele,
Paul Hastings LLP, Los Angeles, California; Brett Harvey,
Alliance Defending Freedom, Scottsdale, Arizona;
Nathaniel Bruno, Alliance Defending Freedom,
Washington, D.C.; for Amicus Curiae Alliance Defending
Freedom.

Brian Timothy Burgess, Goodwin Procter LLP, Washington,
D.C.; David J. Zimmer, Goodwin Procter LLP, Boston,
Massachusetts; for Amici Curiae NAACP Legal Defense
and Educational Fund, Inc.
6 AMERICANS FOR PROSPERITY V. BECERRA

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Fair
Oaks, California, for Amicus Curiae Proposition 8 Legal
Defense Fund.

Herbert W. Titus, Jeremiah L. Morgan, William J. Olson,
and Robert J. Olson, William J. Olson P.C., Vienna,
Virginia; Joseph W. Miller, Ramona, California; Michael
Boos, Washington, D.C.; for Amici Curiae Free Speech
Defense and Education Fund, Free Speech Coalition,
Citizens United, Citizens United Foundation, National Right
to Work Committee, U.S. Constitutional Rights Legal
Defense Fund, U.S. Justice Foundation, Family Research
Council, Western Center for Journalism, Conservative Legal
Defense and Education Fund, The Leadership Institute,
Public Advocate of the United States, Downsize DC
Foundation, Downsize. Org, Gun Owners Foundation, Gun
Owners of America, 60 Plus, 60 Plus Association, America’s
Foundation for Law and Liberty, America’s Liberty
Committee, Citizen Outreach Foundation, Citizen Outreach,
LLC, Law Enforcement Alliance of America, Liberty Guard,
Coalition for a Strong America, The Jesse Helms Center,
Americans for Constitutional Liberty, Catholicvote.org,
Eberle Communications Group, Inc., Clearword
Communications Group, Davidson & Co., and JFT
Consulting.
 AMERICANS FOR PROSPERITY V. BECERRA 7

OPINION

FISHER, Circuit Judge:

We address the constitutionality of a California
charitable registration requirement as applied to two non-
profit organizations that solicit tax-deductible contributions
in the state. Americans for Prosperity Foundation (the
Foundation) and Thomas More Law Center (the Law Center)
qualify as tax-exempt charitable organizations under
§ 501(c)(3) of the Internal Revenue Code, 26 U.S.C.
§ 501(c)(3). They challenge the Attorney General of
California’s collection of Internal Revenue Service (IRS)
Form 990 Schedule B, which contains the names and
addresses of their relatively few largest contributors. The
Attorney General uses the information solely to prevent
charitable fraud, and the information is not to be made public
except in very limited circumstances. The plaintiffs argue
the state’s disclosure requirement impermissibly burdens
their First Amendment right to free association by deterring
individuals from making contributions.

The district court held that the Schedule B requirement
violates the First Amendment as applied to the Foundation
and Law Center and permanently enjoined the Attorney
General from demanding the plaintiffs’ Schedule B forms.
We have jurisdiction under 28 U.S.C. § 1291, and we vacate
the injunctions, reverse the judgments and remand for entry
of judgment in the Attorney General’s favor.

We hold that the California Attorney General’s Schedule
B requirement, which obligates charities to submit the very
information they already file each year with the IRS,
survives exacting scrutiny as applied to the plaintiffs because
it is substantially related to an important state interest in
policing charitable fraud. Even assuming arguendo that the
8 AMERICANS FOR PROSPERITY V. BECERRA

plaintiffs’ contributors would face substantial harassment if
Schedule B information became public, the strength of the
state’s interest in collecting Schedule B information reflects
the actual burden on First Amendment rights because the
information is collected solely for nonpublic use, and the risk
of inadvertent public disclosure is slight.

I.

A.

California’s Supervision of Trustees and Charitable
Trusts Act requires the Attorney General to maintain a
registry of charitable corporations (the Registry) and
authorizes him to obtain “whatever information, copies of
instruments, reports, and records are needed for the
establishment and maintenance of the [Registry].” Cal.
Gov’t Code § 12584. To solicit tax-deductible contributions
from California residents, an organization must maintain
membership in the Registry. See id. § 12585. Registry
information is open to public inspection, subject to
reasonable rules and regulations adopted by the Attorney
General. See id. § 12590.

As one condition of Registry membership, the Attorney
General requires charities to submit a complete copy of the
IRS Form 990 they file with the IRS, including attached
schedules. See Cal. Code Regs. tit. 11, § 301. 1 One of these

1
In July 2018, the IRS announced it would no longer require certain
tax-exempt organizations, other than 501(c)(3) organizations, to report
the names and addresses of their contributors on Schedule B. See Press
Release, U.S. Dep’t of the Treasury, Treasury Department and IRS
Announce Significant Reform to Protect Personal Donor Information to
Certain Tax-Exempt Organizations (July 16, 2018),
https://home.treasury.gov/news/press-releases/sm426. Federal law,
 AMERICANS FOR PROSPERITY V. BECERRA 9

attachments, Schedule B, requires 501(c)(3) organizations to
report the names and addresses of their largest contributors.
Generally, they must report “the names and addresses of all
persons who contributed . . . $5,000 or more (in money or
other property) during the taxable year.” 26 C.F.R.
§ 1.6033-2(a)(2)(ii)(f). Special rules, however, apply to
organizations, such as the Foundation and Law Center,
meeting certain support requirements. These organizations
need only “provide the name and address of a person who
contributed . . . in excess of 2 percent of the total
contributions . . . received by the organization during the
year.” Id. § 1.6033-2(a)(2)(iii)(a). An organization with
$10 million in receipts, for example, is required to disclose
only contributors providing at least $200,000 in financial
support. Here, for any year between 2010 and 2015, the Law
Center was obligated to report no more than seven
contributors on its Schedule B, and the Foundation was
required to report no more than 10 contributors – those
contributing over $250,000 to the Foundation.

The IRS and the California Attorney General both make
certain filings of tax-exempt organizations publicly
available but exclude Schedule B information from public
inspection. See 26 U.S.C. § 6104; Cal Gov’t Code § 12590;
Cal. Code Regs. tit. 11, § 310. At the outset of this litigation,
the Attorney General maintained an informal policy treating
Schedule B as a confidential document not available for
public inspection on the Registry. See Americans for
Prosperity Found. v. Harris, 809 F.3d 536, 542 (9th Cir.
2015) (AFPF I). In 2016, the Attorney General codified that
policy, adopting a regulation that makes Schedule B
information confidential and exempts it from public

however, continues to require 501(c)(3) organizations, such as the
plaintiffs, to file Schedule B information with the IRS.
10 AMERICANS FOR PROSPERITY V. BECERRA

inspection except in a judicial or administrative proceeding
or in response to a search warrant. See Cal. Code Regs. tit.
11, § 310 (July 8, 2016). Under the new regulation:

Donor information exempt from public
inspection pursuant to Internal Revenue Code
section 6104(d)(3)(A) shall be maintained as
confidential by the Attorney General and
shall not be disclosed except as follows:

(1) In a court or administrative proceeding
brought pursuant to the Attorney General’s
charitable trust enforcement responsibilities;
or

(2) In response to a search warrant.

Id. § 310(b). In accordance with this regulation, the
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.

B.

Thomas More Law Center is a legal organization
founded to “restore and defend America’s Judeo-Christian
heritage” by “represent[ing] people who promote Roman
Catholic values,” “marriage and family matters, freedom
from government interference in [religion]” and “opposition
to the imposition of Sharia law within the United States.”
Americans for Prosperity Foundation was founded in 1987
as “Citizens for a Sound Economy Educational Foundation,”
with the mission of “further[ing] free enterprise, free
society-type issues.” The Foundation hosts conferences,
issues policy papers and develops educational programs
worldwide to promote the benefits of a free market. It
 AMERICANS FOR PROSPERITY V. BECERRA 11

operates alongside Americans for Prosperity, a 501(c)(4)
organization focused on direct issue advocacy.

Charities like the Foundation and the Law Center are
overseen by the Charitable Trusts Section of the California
Department of Justice, which houses the Registry and a
separate investigative and legal enforcement unit (the
Investigative Unit). The Registry Unit processes annual
registration renewals and maintains both the public-facing
website of registered charities and the confidential database
used for enforcement. The Investigative Unit analyzes
complaints of unlawful charity activity and conducts audits
and investigations based on those complaints.

Beginning in 2010, the Registry Unit ramped up its
efforts to enforce charities’ Schedule B obligations, sending
thousands of deficiency letters to charities that had not
complied with the Schedule B requirement. Since 2001,
both the Law Center and the Foundation had either filed
redacted versions of the Schedule B or not filed it with the
Attorney General at all. Each plaintiff had, however,
annually filed a complete Schedule B with the IRS. In 2012,
the Registry Unit informed the Law Center it was deficient
in submitting Schedule B information. In 2013, it informed
the Foundation of the same deficiency.

C.

In response to the Attorney General’s demands, the Law
Center and the Foundation separately filed suit, alleging that
the Schedule B requirement unconstitutionally burdens their
First Amendment right to free association by deterring
individuals from financially supporting them. The district
court granted both plaintiffs’ motions for a preliminary
injunction, concluding they had raised serious questions
going to the merits of their cases and demonstrated that the
12 AMERICANS FOR PROSPERITY V. BECERRA

balance of hardships tipped in their favor. See Americans
for Prosperity Found. v. Harris, No. 2:14-CV-09448-R-
FFM, 2015 WL 769778 (C.D. Cal. Feb. 23, 2015). The
Attorney General appealed.

While those appeals were pending, we upheld the
Schedule B requirement against a facial constitutional
challenge brought by the Center for Competitive Politics.
See Ctr. for Competitive Politics v. Harris, 784 F.3d 1307,
1317 (9th Cir. 2015). Applying exacting scrutiny, we held
both that the Schedule B requirement furthers California’s
compelling interest in enforcing its laws and that the plaintiff
had failed to show the requirement places an actual burden
on First Amendment rights. See id. at 1316–17. We left
open the possibility, however, that a future litigant might
“show ‘a reasonable probability that the compelled
disclosure of its contributors’ names will subject them to
threats, harassment, or reprisals from either Government
officials or private parties’ that would warrant relief on an
as-applied challenge.” Id. at 1317 (alteration omitted)
(quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976)).

The Law Center and the Foundation argue they have
made such a showing. In considering the appeal from the
preliminary injunction in their favor, we disagreed. See
AFPF I, 809 F.3d at 540. We held that the plaintiffs had
shown neither an actual chilling effect on association nor a
reasonable probability of harassment at the hands of the state
from the Attorney General’s demand for nonpublic
disclosure of Schedule B forms. See id. The Law Center
and the Foundation had proffered some evidence that private
citizens might retaliate against their contributors if Schedule
B information became public, but “[t]he plaintiffs’
allegations that technical failures or cybersecurity breaches
are likely to lead to inadvertent public disclosure of their
 AMERICANS FOR PROSPERITY V. BECERRA 13

Schedule B forms [were] too speculative to support issuance
of an injunction.” Id. at 541.

We nevertheless identified some risk that the Attorney
General could be compelled by § 12590 to make Schedule B
information available for public inspection in the absence of
a “rule[]” or “regulation[],” Cal. Gov’t Code § 12590,
formalizing the Attorney General’s discretionary policy of
maintaining Schedule B confidentiality. See AFPF I,
809 F.3d at 542. The Attorney General had proposed a
regulation to exempt Schedule B forms from the general
requirement to make Registry filings “open to public
inspection,” Cal. Gov’t Code § 12590, but the state had not
yet adopted the proposed regulation. We held that a narrow
injunction precluding public disclosure of Schedule B
information would address the risk of public disclosure
pending the Attorney General’s adoption of the proposed
regulation. We therefore vacated the district court’s orders
precluding the Attorney General from collecting Schedule B
information from the plaintiffs and instructed the court to
enter new orders preliminarily enjoining the Attorney
General only from making Schedule B information public.
See AFPF I, 809 F.3d at 543. 2

After presiding over a bench trial in each case, the
district court held the Schedule B requirement
unconstitutional as applied to the Foundation and the Law
Center. See Thomas More Law Ctr. v. Harris, No. CV 15-
3048-R, 2016 WL 6781090 (C.D. Cal. Nov. 16, 2016);
Americans for Prosperity Found. v. Harris, 182 F. Supp. 3d

2
On remand, the district court also prohibited the Attorney General
from obtaining relevant discovery from the Foundation’s contributors.
This was one of several questionable evidentiary rulings the court issued
in the plaintiffs’ favor.
14 AMERICANS FOR PROSPERITY V. BECERRA

1049 (C.D. Cal. 2016). The district court first rejected the
plaintiffs’ facial challenges, holding they were precluded by
our opinion in Center for Competitive Politics. It then held
that the Attorney General had failed to prove the Schedule B
requirement was substantially related to a sufficiently
important governmental interest, as necessary to withstand
exacting scrutiny. The court reasoned that the Attorney
General had no need to collect Schedule Bs, because he “has
access to the same information from other sources,” Thomas
More Law Ctr., 2016 WL 6781090, at *2, and had failed to
demonstrate the “necessity of Schedule B forms” in
investigating charity wrongdoing, Americans for Prosperity
Found., 182 F. Supp. 3d at 1053. The court also concluded
there was “ample evidence” establishing the plaintiffs’
employees and supporters face public hostility, intimidation,
harassment and threats “once their support for and affiliation
with the organization becomes publicly known.” Id. at 1055.
The court rejected the proposition that the Attorney
General’s informal confidentiality policy could “effectively
avoid inadvertent disclosure” of Schedule B information,
citing a “pervasive, recurring pattern of uncontained
Schedule B disclosures” by the Registry Unit. Id. at 1057.
Even after the Attorney General codified the non-disclosure
policy, the court concluded that this risk of inadvertent
public disclosure remained. See Thomas More Law Ctr.,
2016 WL 6781090, at *5.

Having found for the plaintiffs on their First Amendment
freedom of association claims, the court entered judgment
for the plaintiffs and permanently enjoined the Attorney
General from enforcing the Schedule B requirement against
them. The Attorney General appealed the judgments. The
plaintiffs cross-appealed, challenging the district court’s
holding that precedent foreclosed a facial attack on the
Schedule B requirement. The Law Center also cross-
 AMERICANS FOR PROSPERITY V. BECERRA 15

appealed the district court’s adverse rulings on its Fourth
Amendment and preemption claims, and the district court’s
failure to award it attorney’s fees.

II.

“In reviewing a judgment following a bench trial, this
court reviews the district court’s findings of fact for clear
error and its legal conclusions de novo.” Dubner v. City &
County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001).
“[W]e 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) (footnote omitted).

III.

We address whether the Attorney General’s Schedule B
requirement violates the First Amendment right to freedom
of association as applied to the plaintiffs. We apply
“exacting scrutiny” to disclosure requirements. See Doe v.
Reed, 561 U.S. 186, 196 (2010). “That standard ‘requires a
substantial relation between the disclosure requirement and
a sufficiently important governmental interest.’” Id.
(quoting Citizens United v. FEC, 558 U.S. 310, 366–67
(2010)). “To withstand this scrutiny, ‘the strength of the
governmental interest must reflect the seriousness of the
actual burden on First Amendment rights.’” Id. (quoting
Davis v. FEC, 554 U.S. 724, 744 (2008)).

The plaintiffs contend “[t]he ‘substantial relation’
element requires, among other things, that the State employ
means ‘narrowly drawn’ to avoid needlessly stifling
expressive association.” They cite Louisiana ex rel.
Gremillion v. NAACP, 366 U.S. 293, 297 (1961) (“[W]hile
16 AMERICANS FOR PROSPERITY V. BECERRA

public safety, peace, comfort, or convenience can be
safeguarded by regulating the time and manner of
solicitation, those regulations need to be ‘narrowly drawn to
prevent the supposed evil.’” (citation omitted) (quoting
Cantwell v. Connecticut, 310 U.S. 296, 307 (1940))), Shelton
v. Tucker, 364 U.S. 479, 488 (1960) (“In a series of decisions
this Court has held that, even 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.”),
and McCutcheon v. FEC, 134 S. Ct. 1434, 1456–57 (2014)
(plurality opinion) (“Even when the Court is not applying
strict scrutiny, we still require ‘a fit that is not necessarily
perfect, but reasonable; that represents not necessarily the
single best disposition but one whose scope is in proportion
to the interest served, . . . that employs not necessarily the
least restrictive means but . . . a means narrowly tailored to
achieve the desired objective.’” (alterations in original)
(quoting Board of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989))). We are not persuaded, however,
that the standard the plaintiffs advocate is distinguishable
from the ordinary “substantial relation” standard that both
the Supreme Court and this court have consistently applied
in disclosure cases such as Doe and Family PAC v.
McKenna, 685 F.3d 800, 805–06 (9th Cir. 2012). To the
extent the plaintiffs ask us to apply the kind of “narrow
tailoring” traditionally required in the context of strict
scrutiny, or to require the state to choose the least restrictive
means of accomplishing its purposes, they are mistaken.
See, e.g., Citizens United v. Schneiderman, 882 F.3d 374,
381 (2d Cir. 2018) (rejecting the plaintiffs’ request “to apply
strict scrutiny and to hold that any mandatory disclosure of
a member or donor list is unconstitutional absent a
compelling government interest and narrowly drawn
regulations furthering that interest”); AFPF I, 809 F.3d at
 AMERICANS FOR PROSPERITY V. BECERRA 17

541 (“The district court’s conclusion that the Attorney
General’s demand for national donor information may be
more intrusive than necessary does not raise serious
questions because ‘exacting scrutiny is not a least-
restrictive-means test.’” (quoting Chula Vista Citizens for
Jobs & Fair Competition v. Norris, 782 F.3d 520, 541 (9th
Cir. 2015) (en banc))); Ctr. for Competitive Politics,
784 F.3d at 1312 (“[The plaintiff’s argument] that the
Attorney General must have a compelling interest in the
disclosure requirement, and that the requirement must be
narrowly tailored in order to justify the First Amendment
harm it causes[,] . . . is a novel theory, but it is not supported
by our case law or by Supreme Court precedent.”).

In short, we apply the “substantial relation” standard the
Supreme Court applied in Doe. “To withstand this scrutiny,
‘the strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment
rights.’” Doe, 561 U.S. at 196 (quoting Davis, 554 U.S. at
744).

A. The Strength of the Governmental Interest

It is clear that the disclosure requirement serves an
important governmental interest. In Center for Competitive
Politics, 784 F.3d at 1311, we recognized the Attorney
General’s argument that “there is a compelling law
enforcement interest in the disclosure of the names of
significant donors.” See also id. at 1317. The Attorney
General observed that “such information is necessary to
determine whether a charity is actually engaged in a
charitable purpose, or is instead violating California law by
engaging in self-dealing, improper loans, or other unfair
business practices,” id. at 1311, and we agreed that “[t]he
Attorney General has provided justifications for employing
a disclosure requirement instead of issuing subpoenas,” id.
18 AMERICANS FOR PROSPERITY V. BECERRA

at 1317. In AFPF I, we reiterated that “the Attorney
General’s authority to demand and collect charitable
organizations’ Schedule B forms . . . furthers California’s
compelling interest in enforcing its laws.” AFPF I, 809 F.3d
at 538–39.

These conclusions are consistent with those reached by
the Second Circuit, which recently upheld New York’s
Schedule B disclosure requirement against a challenge
similar to the one presented here. The attorney general
explained that the Schedule B disclosure requirement allows
him to carry out “his responsibility to protect the public from
fraud and self-dealing among tax-exempt organizations.”
Schneiderman, 882 F.3d at 382. The court agreed with the
state that

knowing the source and amount of large
donations can reveal whether a charity is
doing business with an entity associated with
a major donor. The information in a
Schedule B also permits detection of schemes
such as the intentional overstatement of the
value of noncash donations in order to justify
excessive salaries or perquisites for its own
executives. Collecting donor information on
a regular basis from all organizations
facilitates investigative efficiency, and can
help the Charities Bureau to obtain a
complete picture of the charities’ operations
and flag suspicious activity simply by using
information already available to the IRS.
Because fraud is often revealed not by a
single smoking gun but by a pattern of
suspicious behavior, disclosure of the
 AMERICANS FOR PROSPERITY V. BECERRA 19

Schedule B can be essential to New York’s
interest in detecting fraud.

Id. (alterations, citations and internal quotation marks
omitted). The Schedule B requirement, therefore, served the
state’s important “interests in ensuring organizations that
receive special tax treatment do not abuse that privilege and
. . . in preventing those organizations from using donations
for purposes other than those they represent to their donors
and the public.” Id.

The plaintiffs nonetheless question the strength of the
state’s governmental interest, arguing the Attorney
General’s need to collect Schedule B information is belied
by the evidence that he does not use the information
frequently enough to justify collecting it en masse, he is able
to investigate charities without Schedule B information and
he does not review individual Schedule B forms until he
receives a complaint, at which point he has at his disposal
tools of subpoena and audit to obtain the Schedule B
information he needs. The district court credited these
arguments, concluding that Schedule B information is not
“necessary” to the Attorney General’s investigations
because: the Registry, whose sole job it is to collect and
maintain complete registration information, does not
actively review Schedule B forms as they come in; Schedule
Bs have not been used to trigger investigations; and the
Attorney General can obtain a Schedule B through
subpoenas and audits when a case-specific need arises. See
Americans for Prosperity Found., 182 F. Supp. 3d at 1053–
54.

We addressed these same arguments, of course, in
Center for Competitive Politics, 784 F.3d at 1317, where we
expressly rejected the proposition that the Schedule B
20 AMERICANS FOR PROSPERITY V. BECERRA

requirement is insufficiently tailored because the state could
achieve its enforcement goals through use of its subpoena
power or audit letters. We noted that the state’s quick access
to Schedule B filings “increases [the Attorney General’s]
investigative efficiency” and allows him to “flag suspicious
activity.” Id. For example, as the Attorney General argued
in that case,

having significant donor information allows
the Attorney General to determine when an
organization has inflated its revenue by
overestimating the value of “in kind”
donations. Knowing the significant donor’s
identity allows her to determine what the “in
kind” donation actually was, as well as its
real value. Thus, having the donor’s
information immediately available allows her
to identify suspicious behavior. She also
argues that requiring unredacted versions of
Form 990 Schedule B increases her
investigative efficiency and obviates the need
for expensive and burdensome audits.

Id. at 1311.

The evidence at trial confirms our earlier conclusions.
Belinda Johns, the senior assistant attorney general who
oversaw the Charitable Trusts Section for many years,
testified that attempting to obtain a Schedule B from a
regulated entity after an investigation began was
unsatisfactory. She testified that her office would want “to
look at [the] Schedule B . . . the moment we thought there
might be an issue with the charity.” “[I]f we subpoenaed it
or sent a letter to the charity, that would tip them off to our
investigation, which would allow them potentially to
 AMERICANS FOR PROSPERITY V. BECERRA 21

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 if we don’t have the
whole document at the outset.” Rather than having “to wait
extra days,” she wanted to “take the action that needs to be
taken as quickly as possible.” She explained that her office
relied on Schedule Bs to “tell us whether or not there was an
illegal activity occurring.” Where such activity was found,
she would “go into court immediately and . . . request a
[temporary restraining order] from the court to freeze
assets.”

Johns’ successor, Tania Ibanez, testified similarly that
“getting a Schedule B through a[n] audit letter is not the best
use of my limited resources.”

Because it’s time-consuming, and you are
tipping the charity off that they are about to
be audited. And it’s been my experience
when the charity knows or when the charity
gets the audit letter, it’s not the best way of
obtaining records. We have been confronted
in situations where the charity will fabricate
records. Charities have given us incomplete
records, nonresponsive records. Charities
have destroyed records, and charities have
engaged in other dilatory tactics.

Sonja Berndt, a deputy attorney general in the Charitable
Trusts Section, confirmed that attempting to obtain Schedule
Bs through the auditing process would entail substantial
delay.

The district court’s other conclusions are equally flawed.
Although the state may not routinely use Schedule B
information as it comes in, the Attorney General offered
22 AMERICANS FOR PROSPERITY V. BECERRA

ample evidence of the ways his office uses Schedule B
information in investigating charities that are alleged to have
violated California law. See Cal. Corp. Code §§ 5227, 5233,
5236 (providing examples of the role the Attorney General
plays in investigating nonprofit organizations that violate
California law). 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-in-
kind fraud. 3

In sum, the record demonstrates that the state has a
strong interest in the collection of Schedule B information
from regulated charities. We agree with the Second Circuit
that the disclosure requirement “clearly further[s]” the
state’s “important government interests” in “preventing
fraud and self-dealing in charities . . . by making it easier to
police for such fraud.” Schneiderman, 882 F.3d at 384.

3
The Foundation points out that the Attorney General identified
only five investigations in the past 10 years in which the state has used
Schedule B information to investigate a charity. The Attorney General,
however, identified an additional five investigations that were still
ongoing. The district court did not allow the Attorney General’s
witnesses to testify about those ongoing investigations, because the
Attorney General understandably refused to name the charities under
current investigation.
 AMERICANS FOR PROSPERITY V. BECERRA 23

The district court reached a different conclusion, but it
did so by applying an erroneous legal standard. The district
court required the Attorney General to demonstrate that
collection of Schedule B information was “necessary,”
Thomas More Law Ctr., 2016 WL 6781090, at *2, that it was
no “more burdensome than necessary” and that the state
could not achieve its ends “by more narrowly tailored
means,” id. at *2–3. Because it was “possible for the
Attorney General to monitor charitable organizations
without Schedule B,” the court concluded the requirement is
unconstitutional. Id. at *2. The “more burdensome than
necessary” test the district court applied, however, is
indistinguishable from the narrow tailoring and least-
restrictive-means tests that we have repeatedly held do not
apply here. The district court’s application of this standard,
therefore, constituted legal error.

Because the district court applied an erroneous legal
standard, it consistently framed the legal inquiry as whether
it was possible “that the Attorney General could accomplish
her goals without the Schedule B.” Id. at *3. Under the
substantial relation test, however, the state was not required
to show that it could accomplish its goals only by collecting
Schedule B information. The state instead properly and
persuasively relied on evidence to show that the up-front
collection of Schedule B information improves the
efficiency and efficacy of the Attorney General’s important
regulatory efforts. Even if the Attorney General can achieve
his goals through other means, nothing in the substantial
relation test requires him to forgo the most efficient and
effective means of doing so, at least not absent a showing of
a significant burden on First Amendment rights. As Steven
Bauman, a supervising investigative auditor for the
Charitable Trusts Section testified, “We could complete our
24 AMERICANS FOR PROSPERITY V. BECERRA

investigations if you took away many of the tools that we
have. We just wouldn’t be as effective or as efficient.”

Because the strict necessity test the district court applied
is not the law, the district court’s analysis does not alter our
conclusion that the state has a strong interest in the collection
of Schedule B information from regulated charities.

B. The Seriousness of the Actual Burden on First
Amendment Rights

Having considered the strength of the governmental
interest, we turn to the actual burden on the plaintiffs’ First
Amendment rights.

The Supreme Court has concluded that “compelled
disclosure has the potential for substantially infringing the
exercise of First Amendment rights.” Buckley v. Valeo,
424 U.S. 1, 66 (1976). To assess “the possibility that
disclosure will impinge upon protected associational
activity,” id. at 73, we consider “any deterrent effect on the
exercise of First Amendment rights,” id. at 65.

We may examine, for example, the extent to which
requiring “disclosure of contributions . . . will deter some
individuals who otherwise might contribute,” including
whether disclosure will “expose contributors to harassment
or retaliation.” Id. at 68. “[T]hat one or two persons refused
to make contributions because of the possibility of
disclosure” will not establish a significant First Amendment
burden. Id. at 72. Nor will a showing that “people may
‘think twice’ about contributing.” Family PAC, 685 F.3d at
807. “[D]isclosure requirements,” however, “can chill
donations to an organization by exposing donors to
retaliation,” Citizens United, 558 U.S. at 370, and “[i]n some
instances fears of reprisal may deter contributions to the
 AMERICANS FOR PROSPERITY V. BECERRA 25

point where the movement cannot survive,” Buckley,
424 U.S. at 71. In such cases, the First Amendment burdens
are indeed significant.

A party challenging a disclosure requirement, therefore,
may succeed by proving “a substantial threat of harassment.”
Id. at 74. As a general matter, “those resisting disclosure can
prevail under the First Amendment if they can show ‘a
reasonable probability that the compelled disclosure of
personal information will subject them to threats,
harassment, or reprisals from either Government officials or
private parties.’” Doe, 561 U.S. at 200 (alteration omitted)
(quoting Buckley, 424 U.S. at 74); see also Citizens United,
558 U.S. at 370. 4

Here, the plaintiffs contend requiring them to comply
with the Attorney General’s Schedule B disclosure
requirement will impose a significant First Amendment
burden in two related ways. First, they contend requiring
them to comply with the Schedule B requirement will deter
contributors. Second, they argue disclosure to the Attorney

4
In making this showing, we agree with the Attorney General that
the plaintiffs must show a reasonable probability of threats, harassment
or reprisals arising from the Schedule B requirement itself. But this does
not mean the plaintiffs cannot rely on evidence showing, for example,
that their members have been harassed for other reasons, or evidence that
similar organizations have suffered a loss in contributions as a result of
Schedule B disclosure. To be sure, the extent to which the plaintiffs’
evidence is tied directly to, or is attenuated from, the experience of the
plaintiffs themselves and the California Attorney General’s Schedule B
requirement in particular goes to the weight of that evidence. But the
plaintiffs may rely on any evidence that “has any tendency to make a fact
more or less probable than it would be without the evidence.” Fed. R.
Evid. 401(a).
26 AMERICANS FOR PROSPERITY V. BECERRA

General will subject their contributors to threats, harassment
and reprisals. We consider these contentions in turn.

1. Evidence That Disclosure Will Deter Contributors

We begin by considering whether disclosure will deter
contributors. We first consider evidence presented by the
Foundation. We then consider evidence presented by the
Law Center.

Christopher Joseph Fink, the Foundation’s chief
operating officer, testified that prospective contributors’
“number one concern is about being disclosed.” He testified
that “they are afraid to have their information in the hands of
state government or a federal government or in the hands of
the public.” He testified that business owners “are afraid if
they are associated with our foundation or with Americans
for Prosperity, their businesses would be targeted or audited
from the state government.” Teresa Oelke, the Foundation’s
vice president of state operations, described two individuals
who, she believed, stopped supporting the Foundation in
light of actual or feared retaliation by the IRS. One
contributor “did business with the Government,” and he and
his business associates “did not feel like they could take on
the risk of continuing to give to us.” Another contributor
allegedly stopped giving “because he, his business partner
and their business had experienced seven different reviews
from government agencies, including individual IRS audits,
both personally and their businesses, and their family was
not willing to continue enduring the emotional, financial,
time stress and the stress that it placed on their business.”
Oelke testified that, on average, the Foundation and
Americans for Prosperity combined lose “roughly three
donors a year” due to “their concern that they are going to
be disclosed and the threats that they believe that being
disclosed lays to either their business, their families or just
 AMERICANS FOR PROSPERITY V. BECERRA 27

their employees.” Paul Schervish, an emeritus professor of
sociology, testified that, in his opinion, disclosure to the
California Attorney General would chill contributions to the
Foundation, although he conceded that he had not actually
spoken to any of the Foundation’s contributors. Foundation
President Tim Phillips testified that contributors see the
California Attorney General’s office as “a powerful partisan
office.” The Foundation also points to evidence that, in its
view, shows that some California officials harbor a negative
attitude toward Charles and David Koch.

The Law Center introduced a letter from a contributor
who chose to make a $25 contribution anonymously out of
fear that ISIS would break into the Law Center’s office,
obtain a list of contributors and target them. Schervish, the
sociology professor, opined that the Law Center’s
“disclosure of Schedule B to the registry would chill
contributions.” He acknowledged, however, that he had not
spoken with any of the Law Center’s existing or prospective
contributors, and he could not point to any contributor who
had reduced or eliminated his or her support for the Law
Center due to the fear of disclosure – a common weakness in
the Law Center’s evidence.

For example, Thomas Monaghan, the Law Center’s co-
founder and most well-known contributor, testified that he is
not aware of any Law Center contributor who was “harassed
in some way because they made a donation.” Despite being
included “at the top of a list . . . of the most antigay persons
in the country” (allegedly because of his financial support
for the Law Center), he remains “perfectly willing” to be
listed on the Law Center’s website as “one of the people who
helped to establish” the Law Center. Similarly, the Law
Center’s president testified that he has never had a
conversation with a potential contributor who was unwilling
28 AMERICANS FOR PROSPERITY V. BECERRA

to contribute to the Law Center because of the public
controversy surrounding the Law Center or its disclosure
requirements. For years, moreover, the Law Center has
over-disclosed contributor information on Schedule Bs filed
with the IRS. Although by law the Law Center is required
to disclose only those contributors furnishing 2 percent or
more of the organization’s receipts (about five to seven
contributors a year), it has instead chosen to disclose all
contributors providing $5,000 or more in financial support
(about 23 to 60 contributors a year). This voluntary over-
disclosure tends to undermine the Law Center’s contention
that Schedule B disclosure meaningfully deters
contributions.

Considered as a whole, the plaintiffs’ evidence shows
that some individuals who have or would support the
plaintiffs may be deterred from contributing if the plaintiffs
are required to submit their Schedule Bs to the Attorney
General. The evidence, however, shows at most a modest
impact on contributions. Ultimately, neither plaintiff has
identified a single individual whose willingness to contribute
hinges on whether Schedule B information will be disclosed
to the California Attorney General. Although there may be
a small group of contributors who are comfortable with
disclosure to the IRS, but who would not be comfortable
with disclosure to the Attorney General, the evidence does
not show that this group exists or, if it does, its magnitude.
As the Second Circuit explained:

While we think it plausible that some donors
will find it intolerable for law enforcement
officials to know where they have made
donations, we see no reason to believe that
this risk of speech chilling is more than that
which comes with any disclosure regulation.
 AMERICANS FOR PROSPERITY V. BECERRA 29

In fact, all entities to which these
requirements apply already comply with the
federal law mandating that they submit the
selfsame information to the IRS. Appellants
offer nothing to suggest that their donors
should more reasonably fear having their
identities known to New York’s Attorney
General than known to the IRS.

Schneiderman, 882 F.3d at 384.

The mere possibility that some contributors may choose
to withhold their support does not establish a substantial
burden on First Amendment rights. A plaintiff cannot
establish a significant First Amendment burden by showing
only “that one or two persons refused to make contributions
because of the possibility of disclosure,” Buckley, 424 U.S.
at 72, or that “people may ‘think twice’ about contributing,”
Family PAC, 685 F.3d at 807. The evidence presented by
the plaintiffs here does not show that disclosure to the
Attorney General will “actually and meaningfully deter
contributors,” id., or that disclosure would entail “the
likelihood of a substantial restraint upon the exercise by
[their contributors] of their right to freedom of association,”
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462
(1958). 5 Cf. Bates. v. City of Little Rock, 361 U.S. 516, 521
n.5 (1960) (between 100 and 150 members declined to renew
their NAACP membership, citing disclosure concerns); Dole

5
“In NAACP, the Court was presented . . . with ‘an uncontroverted
showing that on past occasions revelation of the identity of its rank-and-
file members has exposed those members to economic reprisal, loss of
employment, [and] threat of physical coercion,’ and it was well known
at the time that civil rights activists in Alabama and elsewhere had been
beaten and/or killed.” Schneiderman, 882 F.3d at 385 (second alteration
in original) (quoting NAACP, 357 U.S. at 462).
30 AMERICANS FOR PROSPERITY V. BECERRA

v. Serv. Emps. Union, AFL-CIO, Local 280, 950 F.2d 1456,
1460 (9th Cir. 1991) (placing particular weight on two letters
explaining that because meeting minutes might be disclosed,
union members would no longer attend meetings).

The Schedule B requirement, moreover, is not a
sweeping one. It requires the Foundation and the Law
Center to disclose only their dozen or so largest contributors,
and a number of these contributors are already publicly
identified, because they are private foundations which by
law must make their expenditures public. As applied to
these plaintiffs, therefore, the Schedule B requirement is a
far cry from the broad and indiscriminate disclosure laws
passed in the 1950s to harass and intimidate members of
unpopular organizations. See, e.g., Gremillion, 366 U.S. at
295 (invalidating a state law requiring every organization
operating in the state “to file with the Secretary of State
annually ‘a full, complete and true list of the names and
addresses of all of the members and officers’ in the State”);
Shelton, 364 U.S. at 480 (invalidating a state law
“compel[ing] every teacher, as a condition of employment in
a state-supported school or college, to file annually an
affidavit listing without limitation every organization to
which he has belonged or regularly contributed within the
preceding five years”).

In sum, the plaintiffs have not shown a significant First
Amendment burden on the theory that complying with the
Attorney General’s Schedule B nonpublic disclosure
requirement will chill contributions.
 AMERICANS FOR PROSPERITY V. BECERRA 31

2. Evidence That Disclosure to the Attorney General
Will Subject Contributors to Threats, Harassment and
Reprisals

Alternatively, the plaintiffs seek to establish a First
Amendment burden by showing that, if they are required to
disclose their Schedule B information to the Attorney
General, there is “a reasonable probability that the
compelled disclosure of personal information will subject
[their contributors] to threats, harassment, or reprisals from
either Government officials or private parties.” Doe,
561 U.S. at 200 (alteration omitted) (quoting Buckley,
424 U.S. at 74). This inquiry necessarily entails two
questions: (1) what is the risk of public disclosure; and (2), if
public disclosure does occur, what is the likelihood that
contributors will be subjected to threats, harassment or
reprisals? We consider these questions in reverse order.

a. Likelihood of Retaliation

The first question, then, is whether the plaintiffs have
shown that contributors are likely to be subjected to threats,
harassment or reprisals if Schedule B information were to
become public. We again consider the Foundation’s
evidence first, followed by the Law Center’s evidence.

The Foundation’s evidence undeniably shows that some
individuals publicly associated with the Foundation have
been subjected to threats, harassment or economic reprisals.
Lucas Hilgemann, the Foundation’s chief executive officer,
testified that he was harassed and targeted, and his personal
information posted online, in connection with his work
surrounding union “right to work” issues in Wisconsin.
Charles and David Koch have received death threats, and
Christopher Fink, the Foundation’s chief operating officer,
has received death threats for publicly contributing to the
32 AMERICANS FOR PROSPERITY V. BECERRA

Foundation through his family’s private foundation. Art
Pope, a member of the Foundation’s board of directors, and
a contributor through his family foundation, testified that he
received a death threat and has been harassed by “a series of
articles” that falsely accuse him of “funding global warming
deni[al].” His businesses have been boycotted, although we
hesitate to attribute those boycotts to Pope’s association with
the Foundation. 6

In some cases, moreover, the Foundation’s actual or
perceived contributors may have faced economic reprisals or
other forms of harassment. Teresa Oelke, for instance, cited

a donor whose business was targeted by an
association, a reputable association in that
state. A letter was sent to all the school
boards in that state encouraging [them] to

6
Pope says his business, Variety Wholesalers, was boycotted in part
because of his affiliation with the Foundation. But Pope was the state
budget director of North Carolina and is publicly associated with a large
number of organizations and candidates. Despite publicly contributing
to the Foundation since 2004, and to the Foundation’s predecessor since
1993, he did not receive threats or negative attention until 2010, in
connection with his involvement in the North Carolina elections. This
same problem plagues much of the plaintiffs’ evidence. In many
instances, the evidence of harassment pertains to individuals who are
publicly identified with a number of controversial activities or
organizations, making it difficult to assess the extent to which the alleged
harassment was caused by a connection to the Foundation or the Law
Center in particular. Most of the individuals who have experienced
harassment, moreover, have been more than mere contributors, again
making it difficult to isolate the risk of harassment solely from being a
large contributor. The plaintiffs have 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.
 AMERICANS FOR PROSPERITY V. BECERRA 33

discontinue awarding this individual’s
business contracts because of his assumed
association with Americans for Prosperity
and Americans for Prosperity
Foundation. . . . That individual reduced his
contributions in half, so from $500,000
annually to 250,000 based on the pressure
from his board that remains in place today.

Hilgemann, the Foundation’s CEO, suggested that during
the “right to work” campaign in Wisconsin in 2012, an
opposition group “pulled together a list of suspected donors
to the Foundation because of their interactions with groups
like ours in the past that had been publicized. [Opponents]
boycotted their businesses. They made personal and private
threats against them, their families and their business and
their employees.” 7

The Law Center, too, has presented some evidence to
suggest individuals associated with the Law Center have
experienced harassment, although it is less clear to what
extent it results solely from that association. The Law
Center, for instance, points to: a smattering of critical letters,
phone calls and emails it has received over the years; the
incident in which Monaghan was placed on a list of “the
most antigay persons in the country” after the Law Center
became involved in a controversial lawsuit; and threats and

7
Like much of the plaintiffs’ evidence, the harassment allegations
recounted by Oelke and Hilgemann are conclusory rather than detailed.
Although we understand the plaintiffs’ interest in protecting their
contributors’ identities from disclosure, we cannot imagine why the
plaintiffs have not provided more detailed evidence to substantiate and
develop their allegations of retaliation – something we are confident they
could have accomplished without compromising their contributors’
anonymity.
34 AMERICANS FOR PROSPERITY V. BECERRA

harassment its clients, such as Robert Spencer and Pamela
Geller, have received based on their controversial public
activities. As noted, however, Monaghan could not recall
any situation in which a contributor to the Law Center was
harassed, or expressed concerns about being harassed, on
account of having contributed to the Law Center.

On the one hand, this evidence plainly shows at least the
possibility that the plaintiffs’ Schedule B contributors would
face threats, harassment or reprisals if their information were
to become public. Such harassment, however, is not a
foregone conclusion. In 2013, after acquiring copies of the
Foundation’s 2001 and 2003 Schedule B filings, the
National Journal published an article publicly identifying
many of the Foundation’s largest contributors. 8 If, as the
plaintiffs contend, public disclosure of Schedule B
information would subject their contributors to widespread
retaliation, we would expect the Foundation to present
evidence to show that, following the National Journal’s
unauthorized Schedule B disclosure, its contributors were
harassed or threatened. No such evidence, however, has
been presented.

Ultimately, we need not decide whether the plaintiffs
have demonstrated a reasonable probability that the
compelled disclosure of Schedule B information would
subject their contributors to a constitutionally significant
level of threats, harassment or reprisals if their Schedule B

8
The record does not reflect how the National Journal acquired this
information. No one has suggested that the California Attorney
General’s office was the source, nor could it have been, as the
Foundation was not reporting its Schedule B contributors to the state in
2001 or 2003.
 AMERICANS FOR PROSPERITY V. BECERRA 35

information were to become public. See Doe, 561 U.S. at
200. 9 As we explain next, we are not persuaded that there
exists a reasonable probability that the plaintiffs’ Schedule
B information will become public as a result of disclosure to
the Attorney General. Thus, the plaintiffs have not
established a reasonable probability of retaliation from
compliance with the Attorney General’s disclosure
requirement.

b. Risk of Public Disclosure

The parties agree that, as a legal matter, public disclosure
of Schedule B information is prohibited. California law
allows for public inspection of charitable trust records, with
the following exception:

Donor information exempt from public
inspection pursuant to Internal Revenue Code
section 6104(d)(3)(A) shall be maintained as
confidential by the Attorney General and
shall not be disclosed except as follows:

(1) In a court or administrative proceeding
brought pursuant to the Attorney General's
charitable trust enforcement responsibilities;
or

9
The district court concluded the plaintiffs have shown a
“reasonable probability” that public disclosure of their Schedule B
contributors would subject them to such threats and harassment.
Because this constitutes a mixed question of law and fact, however, we
review the question de novo. See In re Cherrett, 873 F.3d 1060, 1066
(9th Cir. 2017).
36 AMERICANS FOR PROSPERITY V. BECERRA

(2) In response to a search warrant.

Cal. Code Regs. tit. 11, § 310(b). 10 The plaintiffs argue,
however, that their Schedule B information may become
public because the Attorney General has a poor track record
of shielding the information from the public view.

We agree that, in the past, the Attorney General’s office
has not maintained Schedule B information as securely as it
should have, and we agree with the plaintiffs that this history
raises a serious concern. The state’s past confidentiality
lapses are 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 the Foundation’s expert, James McClave, as he probed the
Registry’s servers for flaws during this litigation.

We are less concerned with the latter lapse. McClave
discovered that by manipulating the hexadecimal ending of
the URL corresponding to each file on the Registry website,
he could access a file that was confidential and did not
correspond to a clickable link on the website. That is,
although documents were deemed “confidential,” that meant
only that they were not visible to the public; it did not mean
they were not still housed on the public-facing Registry
website. By altering the single digit at the end of the URL,
McClave was able to access, one at a time, all 350,000 of the
Registry’s confidential documents. This lapse was a

10
The plaintiffs suggest California’s regulations are not as
protective as federal regulations because federal law imposes criminal
penalties for unauthorized disclosure of information on tax returns. See
26 U.S.C. § 7213. Federal law, however, criminalizes only willful
unauthorized disclosure; the differences between federal and California
law are therefore immaterial to risk of inadvertent public disclosure at
issue here.
 AMERICANS FOR PROSPERITY V. BECERRA 37

singularity, stemming from an issue with the Attorney
General’s third-party security vendor. When it was brought
to the Attorney General’s attention during trial, the
vulnerability was quickly remedied. There is no evidence to
suggest that this type of error is likely to recur.

We are more concerned with human error. As part of an
iterative search on the public-facing website of the Registry,
McClave found approximately 1800 confidential Schedule
Bs that had been misclassified as public over several years.
The Attorney General promptly removed them from public
access, but some had remained on the website since 2012,
when the Registry began loading its documents to servers.

Much of this error can be traced to the large amount of
paper the Registry Unit processes around the same time each
year. The Registry Unit receives over 60,000 registration
renewals annually, and 90 percent are filed in hard copy. It
processes each by hand before using temporary workers and
student workers to scan them into an electronic record
system. The volume and tediousness of the work seems to
have resulted in some staff occasionally mismarking
confidential Schedule Bs as public and then uploading them
to the public-facing site.

Recognizing the serious need to protect confidentiality,
however, 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
38 AMERICANS FOR PROSPERITY V. BECERRA

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 inadvertently
misclassified as public. There is also no dispute that the
Registry Unit immediately removes any information that an
organization identifies as having been misclassified for
public access.

Nothing is perfectly secure on the internet in 2018, and
the Attorney General’s data are no exception, but this factor
alone does not establish a significant risk of public
disclosure. As the Second Circuit recently explained, “[a]ny
form of disclosure-based regulation – indeed, any regulation
at all – comes with some risk of abuse. This background risk
does not alone present constitutional problems.”
Schneiderman, 882 F.3d at 383.

Although the plaintiffs have shown the state could afford
to test its own systems with more regularity, they have not
shown its cybersecurity protocols are deficient or
substandard as compared to either the industry or the IRS,
which maintains the same confidential information. 11 We
agree with the Second Circuit that “there is always a risk

11
Although the plaintiffs contend that the Charitable Trusts
Section’s protective measures are inadequate because they impose no
physical or technical impediments to prevent employees from emailing
Schedule Bs externally or printing them in the office, the record does not
show that the IRS maintains a more secure internal protocol for its
handling of Schedule B information or that the Charitable Trusts Section
is failing to meet any particular security standard. Nonetheless, we take
seriously the concerns raised here by the plaintiffs and amici, and we
encourage all interested parties to work cooperatively to ensure that
Schedule B information in the hands of the Attorney General remains
confidential.
 AMERICANS FOR PROSPERITY V. BECERRA 39

somebody in the Attorney General’s office will let
confidential information slip notwithstanding an express
prohibition. But if the sheer possibility that a government
agent will fail to live up to her duties were enough for us to
assume those duties are not binding, hardly any government
action would withstand our positively philosophical
skepticism.” Id. at 384.

Although the district court appears to have concluded
that there is a high risk of public disclosure notwithstanding
the promulgation of § 310 and the Attorney General’s
adoption of additional security measures, the court appears
to have rested this conclusion solely on the state’s past
“inability to ensure confidentiality.” Thomas More Law
Ctr., 2016 WL 6781090, at *5. In light of the changes the
Attorney General has adopted since those breaches occurred,
however, the evidence does not support the inference that the
Attorney General is likely to inadvertently disclose either the
Law Center’s or the Foundation’s Schedule B in the future.
The risk of inadvertent disclosure of any Schedule B
information in the future is small, and the risk of inadvertent
disclosure of the plaintiffs’ Schedule B information in
particular is smaller still. To the extent the district court
found otherwise, that finding was clearly erroneous.

Given the slight risk of public disclosure, we cannot say
that the plaintiffs have shown “a reasonable probability that
the compelled disclosure of personal information will
subject them to threats, harassment, or reprisals.” See Doe,
561 U.S. at 200 (alteration omitted) (quoting Buckley,
424 U.S. at 74).

In sum, the plaintiffs have not shown that compliance
with the Attorney General’s Schedule B requirement will
impose significant First Amendment burdens. The plaintiffs
have not demonstrated that compliance with the state’s
40 AMERICANS FOR PROSPERITY V. BECERRA

disclosure requirement will meaningfully deter
contributions. Nor, in light of the low risk of public
disclosure, have the plaintiffs shown a reasonable
probability of threats, harassment or reprisals. Because the
burden on the First Amendment right to association is
modest, and the Attorney General’s interest in enforcing its
laws is important, Ctr. for Competitive Politics, 784 F.3d at
1317, “the strength of the governmental interest . . . reflect[s]
the seriousness of the actual burden on First Amendment
rights.” Doe, 561 U.S. at 196 (quoting Davis, 554 U.S. at
744). As applied to the plaintiffs, therefore, the Attorney
General’s Schedule B requirement survives exacting First
Amendment scrutiny.

IV.

The plaintiffs’ facial challenges also fail. In AFPF I, we
held that we were “bound by our holding in Center for
Competitive Politics, 784 F.3d at 1317, that the Attorney
General’s nonpublic Schedule B disclosure regime is
facially constitutional.” AFPF I, 809 F.3d at 538. That
holding constitutes the law of the case. See Ranchers
Cattlemen Action Legal Fund United Stockgrowers of Am. v.
U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007)
(“[T]he general rule [is] that our decisions at the preliminary
injunction phase do not constitute the law of the case. Any
of our conclusions on pure issues of law, however, are
binding.” (citations and internal quotation marks omitted)).
Even if we were to consider the facial challenges anew, the
evidence adduced at these trials does not prove the Schedule
B requirement “fails exacting scrutiny in a ‘substantial’
number of cases, ‘judged in relation to [its] plainly legitimate
sweep.’” Ctr. for Competitive Politics, 784 F.3d at 1315
(quoting United States v. Stevens, 559 U.S. 460, 473 (2010)).
 AMERICANS FOR PROSPERITY V. BECERRA 41

We also reject the Law Center’s cross-appeal as to its
Fourth Amendment and preemption claims. These claims
were not proved at trial. We decline to consider the Law
Center’s motion for attorney’s fees because it was not
presented to the district court. Finally, we deny the Law
Center’s motion for judicial notice and the Attorney
General’s motion to strike portions of the Law Center’s reply
brief.

The judgments of the district court are reversed. The
permanent injunctions are vacated. The case is remanded for
entry of judgments in favor of the Attorney General.

INJUNCTIONS VACATED; JUDGMENTS
REVERSED; CASES REMANDED.

The Law Center’s motion for judicial notice, filed
February 12, 2018 (Dkt. 45, No. 16-56855) is DENIED.

The Attorney General’s motion to strike, filed February
13, 2018 (Dkt. 47, No. 16-56855), is DENIED.