Locke joins brief supporting donor privacy in 6th Circuit federal case

The John Locke Foundation has signed onto a legal brief supporting donor privacy in a case at the 6th US Circuit Court of Appeals. The case challenges an IRS requirement that nonprofit groups disclose donor information in return for favorable tax treatment.

“The freedom to associate is a foundational pillar of a free society,” according to the brief filed Wednesday by the State Policy Network, Locke, and 29 other affiliated groups in the case Buckeye Institute v. Internal Revenue Service. “Associations amplify individuals’ messages and enhance their ability to effect social and political change.”

“But that freedom cannot fully exist — and its benefits become fully realized — without the corresponding right to associate anonymously,” the brief continued. “Likewise, the right to speak anonymously — itself a distinct method of communication and persuasion — contains virtues worthy of protection.”

The Ohio-based Buckeye Institute sued the IRS to challenge the disclosure requirement. A federal trial judge agreed with Buckeye that the donor disclosure rule required a type of judicial review called “exacting scrutiny.” It’s a level of review that sits between “strict” scrutiny and the less-demanding “intermediate” scrutiny.

Under exacting scrutiny, there must be a “substantial relation between the disclosure requirement and a sufficiently important governmental interest.” In addition, the law must be “narrowly tailored to the government’s asserted interest,” the brief explained.

The IRS appealed the trial court’s decision to the 6th Circuit, based in Cincinnati, Ohio. The amicus, or friend-of-the-court, brief from SPN, Locke, and groups in other states supports the trial judge’s decision.

“The mandatory disclosure requirements for 501(c)(3) nonprofit organizations challenged by the Buckeye Institute here also impose serious burdens on Amici and their affiliates to engage in genuine issue advocacy and education,” according to the brief. “The disclosure requirements force these organizations to disclose many of their donors’ identities and information to the government, thereby restricting the content of their speech and discouraging contributions by donors who often do not wish to be publicly identified with potentially controversial issue advocacy and education.”

Forced donor disclosure “threatens the harms of chilled speech and a diminished ‘marketplace of ideas,’ as donors and recipients modify (or cease) their expressive activity to avoid reprisals, boycotts, and social ostracizing,” the brief added. “Disclosure also inherently prohibits anonymous expression itself. And without anonymous association and expression, a range of important speech activity disappears.”

Participating groups have faced “harassment aimed at curbing their (and donors’) associational speech, including via retaliation, doxxing, deplatforming, and even cold-blooded violence,” the brief explained. “These are among the many reasons why the Supreme Court subjects disclosure requirements to a demanding ‘exacting scrutiny’ to meaningfully protect these key associational rights — and curb efforts by others to undermine those rights.”

Buckeye is challenging a “particularly burdensome disclosure law” that requires 501(c)(3) groups to disclose names and addresses of all “substantial contributors.”

“The IRS, for its part, contends that the disclosure requirement is merely a condition on nonprofit status and therefore exempted from normal scrutiny — notwithstanding that the disclosure requirement extends beyond how nonprofits use the funds and separately curbs constitutionally protected expression (both of which fall under the buckets of so-called ‘unconstitutional conditions’),” the brief argued.

“Anonymous expression is indispensable to the First Amendment,” said Jessica Thompson, Locke director of government affairs and general counsel, in a news release. “It focuses attention on the message rather than the messenger and prevents audiences from prejudging an idea based on the identity of the speaker. Government-mandated disclosures, on the other hand, deter participation in constitutionally protected activities and invite harassment and retaliation.” 

“The right to associate anonymously, particularly when expressing minority viewpoints, is essential to a functioning democracy,” Thompson added. “That’s why Locke is proud to join the State Policy Network in supporting the Buckeye Institute in its constitutional challenge to the IRS’s mandatory disclosure requirements, which violate Americans’ First Amendment rights.”