Yesterday, the Second Circuit affirmed Judge Stein’s decision last year to dismiss a suit by Citizens United challenging New York’s charity reporting laws (see our previous coverage here). Citizens United challenged the New York Attorney General’s requirement that charities file an un-redacted Schedule B, a form listing the names and contribution amounts of the charity’s donors, before receiving a license to solicit contributions in the state.
The Second Circuit noted that the mere fact that the reporting law came with risk of abuse was not enough to sustain a challenge to it:
We agree with the importance of the government’s interests in ensuring organizations that receive special tax treatment do not abuse that privilege and of its interest in preventing those organizations from using donations for purposes other than those they represent to their donors and the public. Whether these are sufficiently important interests depends on how seriously they burden the First Amendment rights of non‐profit organizations in New York. An individual who seeks to advance a cause might reasonably hesitate knowing that an officer of the state will see that they have done so. Law enforcement officials have been known to abuse their power, and there is always a risk that an office charged with care of confidential information will spring a leak. A list of names in the hands of those with access to a state’s coercive resources conjures up an uneasy number of troubling precedents.
But totalitarian tendencies do not lurk behind every instance of a state’s collection of information about those within its jurisdiction. Any 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. And requiring disclosure is not itself an evil: anonymity can protect both those whose unpopular beliefs might subject them to retaliation and those who seek to avoid detection (and consequences) for deceptive or harmful activities that governments have legitimate interests in preventing.
The Second Circuit applied an “exacting scrutiny” standard rather than strict scrutiny to assess the First Amendment issue, and found that the government had met this burden:
Even interpreting the pleadings in the light most favorable to Appellants, the small extent of speech chilling is more than commensurate with the government’s goals. We have already articulated the important government interests at stake: preventing fraud and self‐dealing in charities. The Attorney General’s regulations clearly further those interests by making it easier to police for such fraud. 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. 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.
Our full coverage of the Citizens United case before Judge Stein is here.