New York State and a Compliant Media Demonstrate, Again, Hostility to Citizen Privacy

September 1, 2022

Once again, Americans are being targeted by their opponents for exercising their First Amendment rights, and sadly, it’s not a surprise.

The latest incident likely comes from New York, where someone in the State Attorney General’s office allegedly allowed sensitive donor information to be leaked, possibly illegally, to activists who took the opportunity to publicize this private information and alert their sympathizers in the media. The victims of this reckless and dangerous behavior are citizens who legally supported a nonprofit organization, Stand For America, Inc., which is affiliated with former UN Ambassador and prospective presidential candidate Nikki Haley and communicates her views on policy through a daily newsletter, 160-page policy book, explanatory videos, and ads highlighting her views on prominent issues.

The group that orchestrated the leak believes they are above the law, so they work to obtain confidential documents through surreptitious means so they can publicize private donor information and target American citizens who have exercised their First Amendment right to privately support nonprofits with missions they believe in. The media outlet POLITICO threw journalism standards out the window and wasted no time in taking advantage of the information obtained by those anti-privacy activists. An article was published calling out many of those individual donors by name without their authorization.

Stand For America, and their donors, did nothing to deserve this unwelcome and unwarranted scrutiny. The organization filed their annual tax return with the Internal Revenue Service with the expectation that the part of the filing where donor names are listed would not be publicized, as required by federal law. Apparently, someone at the New York Attorney General’s office, in coordination with the activist group and reporters at POLITICO, disagreed with federal tax law and decided unilaterally that the organization’s donor information should be made public.

An attorney representing POLITICO claims that reporting these names “is in the public interest and fully protected by the First Amendment to the United States Constitution.” That’s not an admission of guilt, but it may as well be. The staff at POLITICO seems to believe in ‘First Amendment rights for me, but not for thee’ because the donors whose privacy they violated are equally entitled to their First Amendment right to privately support causes, a right that has been affirmed in multiple U.S. Supreme Court cases over many decades, including most recently in the 2021 decision in Americans for Prosperity Foundation (AFPF) v. Bonta.

Unfortunately, New York is not one of the 14 states where the Personal Privacy Protection Act (PPPA) has been signed into law. That policy would have deterred this action by the Attorney General’s office. The PPPA reinforces the Supreme Court’s strong pro-privacy decision in AFPF v. Bonta by prohibiting state agencies from collecting or publicly releasing nonprofit donor and member lists and provides penalties for violations of these crucial privacy protections. Unfortunately for Stand For America and its supporters, no such recourse exists in New York State.

Earlier this year, the New York Attorney General’s office ceased collecting Schedule B forms filed by nonprofits with annual 990 tax returns. The AG’s decision to stop collecting donor information was made in response to the Supreme Court’s decision in AFPF v. Bonta. Previously, duplicate copies of those tax forms were submitted to the state agency responsible for overseeing charitable organizations operating in New York. Thankfully, the Legislature eliminated that unnecessary and privacy invasive requirement in 2021 through a bill that passed with bipartisan support. However, the donor list that was recently leaked may have been obtained prior to this policy change in the Attorney General’s office. So apparently that made it fair game for whomever orchestrated the leak.

Haley has announced that her organization will be pursuing legal remedies for the damage this has caused her organization and its supporters. In an appearance on Fox News, she demanded the Department of Justice investigate the source of the leak. “We’re going to fight this. And we are filing a lawsuit against the New York State Attorney General’s Office. We are going to [U.S. Attorney General] Merrick Garland and saying this is a federal tax crime, and we want him to investigate that office,” said Haley.

We’re not holding our breath for any imminent action from DOJ. Still, Haley is right to pursue legal action to defend the First Amendment rights – and privacy – of donors that support her nonprofit. However, nonprofits should not have to go to court and spend months or years – and a significant amount of their budget – pursuing legal decisions that have been affirmed by the Supreme Court repeatedly, including as recently as last year.

This latest incident is an example of why legislation that enforces donor privacy protections is critical for defending the free speech rights of all Americans. This isn’t – and shouldn’t be – a partisan issue. Americans of all stripes support the longstanding First Amendment right to support the causes of their choice privately. Hundreds of diverse nonprofit groups endorsed these protections in AFPF v. Bonta, and the PPPA has been consistently supported by bipartisan majorities in legislatures and in the nonprofit community. Until privacy protections like those in the PPPA are in place in all 50 states, unethical activists, reporters, bureaucrats, and politicians will use whatever tactics necessary to attack people with whom they disagree on public policy issues.

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