Five years ago this week, the U.S. Supreme Court handed down one of its most consequential decisions protecting the right to privacy in association. Americans for Prosperity Foundation v. Bonta (2021) rescued the NAACP v. Alabama line of cases from potential irrelevancy, reinvigorated constitutional limits on the government’s power to compel donor disclosure from nonprofits, and set the stage for subsequent First Amendment victories spanning both legislative reforms and judicial triumphs like this year’s unanimous decision in First Choice v. Davenport.

And yet, the AFPF decision did not end battles over donor privacy and free speech. In fact, efforts to chill advocacy and association through the exposure of donor lists have continued and arguably increased since 2021. AFPF simply gave privacy defenders a powerful new precedent to fight back. It’s on us to use it.

Understanding the Court’s milestone ruling is therefore essential to the defense and advancement of these core First Amendment liberties. At first glance, however, AFPF’s significance may not be obvious. After all, the question presented – could California compel nonprofits to provide a list of their major donors to state officials? – looks almost identical to NAACP v. Alabama.

In that Civil Rights Era case, the Court unanimously struck down Alabama’s demand for the NAACP’s donor list. The Court recognized that “compelled disclosure of affiliation with groups engaged in advocacy” restrains freedom of association due to the risk of reprisals, noting that this was “hardly a novel perception.”

In some sense, AFPF was a simple restatement of the principles underlying NAACP. You could almost sum up the decision as the Court saying: “Yes, NAACP v. Alabama is still good law.” That interpretation, however, fails to capture the decision’s larger context and significance.

In the years since NAACP v. Alabama was decided in 1958, privacy in association was steadily eroded by a growing body of restrictions and regulations on political and issue advocacy. The decision was never overturned, but it began sliding into irrelevancy. When faced with lawsuits challenging a disclosure requirement, lower courts often looked past NAACP to newer precedents from the post-Watergate era of campaign finance regulation. When California’s demand for donor lists reached the U.S. Court of Appeals for the Ninth Circuit, the court ruled for the state, even though its holding directly contradicted NAACP.

In that sense, AFPF was not simply a reminder that NAACP still governed state demands for nonprofit donor lists. It was a restoration of an older and more robust understanding of freedom of association. That understanding won widespread support from the nonprofit community, with nearly 300 organizations from across the spectrum writing to the Court in support of robust privacy protections for donors.

The majority opinion also provided a clear articulation of the “exacting scrutiny” standard by which government disclosure demands are now evaluated by courts. In tracing the test’s historical origins and explaining in detail its application to the California law, the Court provided a much clearer roadmap for states and lower courts to follow when facing similar issues.

In short, to satisfy the Court’s “exacting scrutiny” test, there must “be a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Further, “the disclosure requirement [must] be narrowly tailored to the interest it promotes.” That means blanket government demands, like California’s, for lists of nonprofit members or supporters won’t cut it. Neither will sweeping campaign finance laws that expose nonprofit supporters to scrutiny when organizations voice opinions on issues of public importance.

The results speak for themselves. Since the decision, PUFPF has worked with numerous policymakers and an array of nonprofits to update and conform state laws to the AFPF ruling. Today, 22 states containing over 108 million Americans have laws prohibiting state officials from demanding or disclosing nonprofit donor lists. Four states – Kansas, Louisiana, Nevada, and West Virginia – have gone further by revising their campaign finance and lobbying statutes to remove unconstitutional and outdated disclosure provisions.

The 2021 decision has also bolstered future donor privacy challenges in the courts. Most notably, a pro-life nonprofit won a 9-0 decision from the Supreme Court this year allowing it to challenge the New Jersey attorney general’s demand for the group’s donor information. In the lower courts, a Wyoming gun rights group cited AFPF in a successful challenge to the state’s disclosure requirements for issue advocacy. And in an ongoing case, the Ohio-based Buckeye Institute is challenging the IRS’s annual collection of nonprofit donor lists based, in part, on the reasoning of AFPF.

The recent gains made by donor privacy advocates in legislatures and the courts have attracted attention from nonprofit experts. But despite these advances, many laws and regulations that are likely unconstitutional under AFPF remain on the books federally and in the states. And new strategies to “regulate” speech through donor disclosure requirements are always being developed and tested.

The task for PUFPF – and for any organization or donor that values both their privacy and their voice – is to continue to push forward to make sure our laws live up to the standard the Court set in AFPF v. Bonta and to hold government officials accountable when they inevitably infringe on First Amendment rights. As we mark the decision’s fifth anniversary, we should all celebrate AFPF v. Bonta for making that task easier.