The First Amendment’s protection of free speech and free association includes the right of people to be anonymously associated with organizations. The 1958 Supreme Court case NAACP v. Alabama confirmed that this right forbids the government from demanding member lists. In many cases, donors also have a right against compulsory disclosure of their support for an organization. The scope of this right—and its interaction with the government’s legitimate interest in promoting transparency and investigating misconduct—has been the subject of significant litigation.
The History of Donor Privacy
Anonymous giving has a long history. Philosophical examination of anonymous giving goes back at least as far as the first century with the Roman philosopher Seneca, who wrote that anonymous gifts allow a person to avoid both praise and blame for the gift. Anonymity in charity also has a strong history in several religions. The medieval scholar Maimonides placed anonymous giving among the highest forms of charity. In Christianity, the Sermon on the Mount preaches the virtue of secret giving (Matthew 6:1-4). The Koran also describes the value of private charity: “If you disclose your charitable expenditures, they are good; but if you conceal them and give them to the poor, it is better for you” (Quran 2:271).
Modern donations to tax-exempt organizations involve issues of free association under the First Amendment raised in the landmark 1958 case NAACP v. Alabama. In that case, the Supreme Court held that the State of Alabama could not require the NAACP to disclose its member list to the state. NAACP members had faced “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” because of their connection to the NAACP, and therefore forced disclosure of the NAACP’s member list placed a substantial burden on its members’ right of free association.
The Supreme Court has often reinforced the right of anonymous speech and freedom of association. In McIntyre v. Ohio Elections Commission (1995), the Court upheld the right to distribute anonymous political leaflets. In Buckley v. American Constitutional Law Foundation (1999), the Court held that petition circulators cannot be required to wear name badges or have their names and addresses reported to the state. In Watchtower Bible and Tract Society v. Village of Stratton (2002), the Court affirmed the right to anonymously advocate door-to-door. And in Americans for Prosperity v. Bonta (2021), the Supreme Court held that California’s interest in preventing charitable misconduct did not justify compelling charitable organizations to provide the state with a copy of Form 990 Schedule B, an IRS filing that identifies major donors.
But the Supreme Court’s support for free association and free speech has not been without limits. In Doe v. Reed (2010), a case in which EPIC filed an amicus brief, the Supreme Court held that disclosure of the names of petition signatories under a state open records law did not violate the First Amendment. The court found that the state’s interests in “protecting the integrity of the electoral process” and promoting transparency and accountability were enough to outweigh the “modest” First Amendment burdens.
The privacy interests of donors to an organization are similar to those of members. Donors may contribute anonymously for religious reasons, to avoid showing how wealthy they are, or simply to avoid ending up on countless mailing lists from other organizations who hope for contributions. Donors argue that they, too, face “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” because of their donations to certain causes.
Donor Reporting Requirements
Federal law requires the IRS to collect “the names and addresses of all substantial contributors” (typically, those who contribute $5,000 or more) to tax-exempt organizations. The filing requirement is intended to allow the IRS to ensure that organizations receiving tax breaks are legitimate charitable organizations. The law also reflects concerns that major donors could use nonprofits to funnel unlimited contributions to political causes.
Although tax-exempt organizations must report donor names to the IRS, most are not obligated to publicly disclose those names. Some states have historically required non-profits to file copies of their IRS donor reports at the state level in order to guard against charitable misconduct and self-dealing. Though not published by default, such lists are at risk of becoming public through data breaches or insider misbehavior. However, the constitutionality of these state laws is in doubt after Americans for Prosperity v. Bonta (2021), a case in which the Supreme Court struck down California’s donor disclosure law. New York subsequently repealed its analogous law following the Court’s decision.
Recent Documents on Donor Privacy
US Court of Appeals for the Ninth Circuit
Whether the First Amendment Protects the Privacy of Donors in Charitable Giving
Associational Privacy and the First Amendment: NAACP v. Alabama, Privacy and Data Protection
Anita L. Allen | 2011
The Legal and Political Landscape of Donor Privacy
Sean Parnell | 2017
Developing Empirical Evidence for Campaign Finance Cases
Brent Ferguson & Chisun Lee | 2016
The Failure of Mandated Disclosure
Omri Ben-Shahar & Carl E. Schneider | 2010
Nonprofit Fundraising and Consumer Protection: A Donor's Right to Privacy
Ely R. Levy & Norman I. Silber | 2004
Mrs. McIntyre's Checkbook: Privacy Costs of Political Contribution Disclosure
William McGeveran | 2003
The Sound of One Hand Clapping: The Case For and Against Anonymous Giving
Paul G. Schervish | 1994
De Beneficiis (On Benefits)