First Amendment News 303.1: 6-3 Court strikes down California donor disclosure law

This morning the Court handed down its ruling in Americans for Prosperity Foundation v. Rodriguez.

The issue in the case was whether the exacting scrutiny the Supreme Court “has long required of laws that abridge the freedoms of speech and association outside the election context — as called for by NAACP v. Alabama ex rel. Patterson 357 U.S. 449 (1958), and its progeny — can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.”

Holding: The Court holds that the California donor “disclosure requirement is facially invalid [that is, in every case] because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest.”

Vote: 6-3

Majority Opinion: Roberts (delivered the opinion of the Court except as to Part II–B–1. Kavanaugh and Barrett, JJ., joined that opinion in full, Alito and Gorsuch joined except as to Part II–B–1, and Thomas joined except as to Parts II–B–1 and III–B)

Section Part II-B-1: From the Robert opinion: “NAACP v. Alabama did not phrase in precise terms the standard of review that applies to First Amendment challenges to compelled disclosure. We have since settled on a standard referred to as ‘exacting scrutiny.’” (Alito, Gorsuch & Thomas dissent)

Section Part III-B: From the Roberts opinion: “a facial challenge is appropriate in these cases.” (Thomas dissents)

Concurring Opinions: Thomas (concurring in part and concurring in the judgment), Alito (concurring in part and concurring in the judgment, Gorsuch joined)

Dissenting Opinion: Sotomayor (joined by Breyer and Kagan)

Audio of Oral Arguments: Via C-SPAN

Lawyer for Petitioner: Derek L. Shaffer (brief here)

Lawyer for Respondent: Aimee Feinberg (CA Deputy Solicitor General) (brief here)

Lawyer for the United States as Amicus: Jeffrey Wall (brief here)

Ninth Circuit Opinion: (here)

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

• Americans for Prosperity Foundation v. Rodriguez (consolidated with Thomas More Law Center v. Becerra)
• Mahanoy Area School District v. B.L. (OA: April 28, 2021) (Re: K-12 punishment for online speech) (Held: 8-1, school district decision to suspend cheerleader for vulgar social media post violates the First Amendment)
• Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (Religious expression: Free exercise & free speech claims) (decided on free exercise grounds)
• Mckesson v. Doe (Per curium, 7-1 with Thomas, J., dissenting) (Judgment vacated and remanded to 5th Cir.)
• Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)

Cases argued

• Carney v. Adams (OA: Oct. 5, 2020) (Standing/judicial elections)
• Thomas More Law Center v. Becerra (OA: April 26, 2021)
• Americans for Prosperity Foundation v. Rodriguez (OA: April 26, 2021)

Cert granted

• Houston Community College System v. Wilson
• Trump v. Knight First Amendment Institute (Judgment is vacated, and the case is remanded to the Second Circuit to dismiss as moot)
• City of Austin, Texas v. Reagan National Advertising of Texas Inc.

Pending petitions

• Crowe v. Oregon State Bar
• Baisley v. International Association of Machinists and Aerospace Worker
• Louisiana v. Hill
• Project Veritas Action Fund v. Rollins
• American Civil Liberties Union v. U.S.
• Boardman v. Inslee
• Institute for Free Speech v. Becerra
  

Cert denied

• Berisha v. Lawson (Justice Thomas, dissenting from denial of cert. (Detached Opinion) Justice Gorsuch, dissenting from denial of cert.)
• Arlene’s Flowers Inc. v. Washington
• Campbell v. Pennsylvania School Boards Association, et al. (Institute for Free Speech amicus brief in support of Petitioners)
• Hamilton v. Speight
• Thompson v. Marietta Education Association
• Thompson v. DeWine
• Stockman v. United States
• Jack Daniel’s Properties Inc. v. VIP Products LLC
• Hurchalla v. Lake Point Phase
• Bruni v. City of Pittsburgh
• Hunt v. Board of Regents of the University of New Mexico
• Lieu v. Federal Election Commission
• City of Sacramento, California v. Mann
• Evans v. Sandy City, Utah
• Reisman v. Associated Faculties of the University of Maine
• Austin v. Illinois
• Living Essentials, LLC v. Washington

First Amendment-related 

• AbbVie Inc., et al. v. Federal Trade Commission (Re: Scope of Noerr-Pennington doctrine)
• Rentberry, Inc. v. City of Seattle (Cert denied)
• Uzuegbunam & Bradford v. Preczewski, et al. (Nominal damages and mootness in campus speech context) (Cert granted: 8-1 held Art. III claim not moot)
• National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (Cert granted & case argued) (Held: 9-0: FCC decision to repeal or modify three of its media ownership rules was not arbitrary or capricious under the Administrative Procedure Act)
• Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (Cert granted & case argued)
• Retzlaff v. Van Dyke (State anti-SLAPP laws in federal diversity cases) (Cert denied)

Last FAN

• FAN 303: "The Supreme Court’s new student speech case that overlooked what every student knows”