A Wyoming nonprofit represented by the Institute for Free Speech recently scored a major legal victory for free speech and donor privacy in Wyoming Gun Owners v. Gray. Wyoming Gun Owners (WyGO), a pro-Second Amendment group, challenged an expansive Wyoming law regulating “electioneering communications,” a form of speech that encompasses commentary on policy issues.

According to the Wyoming law at issue, an “electioneering communication” constitutes spending over $1,000 on a public communication that does not expressly support or oppose a candidate but which “[c]an only be reasonably interpreted as an appeal to vote for or against the candidate or ballot proposition.” Groups that make electioneering communications are required to disclose any contributions related to the message.

When Wyoming Gun Owners purchased radio advertisements expressing their perspectives on candidates’ adherence to the Second Amendment, the Secretary of State cited the organization for failure to report the expenditure as an electioneering communication and issued a $500 fine. Wyoming Gun Owners paid the penalty and then challenged the law as a violation of their First Amendment rights.

The Tenth Circuit Court of Appeals agreed with Wyoming Gun Owners. Relying on precedent from the landmark 2021 U.S. Supreme Court ruling in Americans for Prosperity Foundation (AFPF) v. Bonta, the Court determined that the Secretary of State’s application of the law against Wyoming Gun Owners violated the First Amendment. In applying AFPF, the Court found that the Wyoming law did not meet the “exacting scrutiny” standard for disclosures related to political speech.

In AFPF, the U.S. Supreme Court articulated that the exacting scrutiny standard requires the government to demonstrate a “substantial relation” between a disclosure scheme’s burden and an “important” or “substantial” governmental interest, but it must also show that the disclosure is “narrowly tailored to the government’s asserted interest.” The Wyoming statute failed to meet this heightened standard for regulating political speech and violating donor privacy rights.

In repudiating the Wyoming law, the Tenth Circuit wrote:

“[T]he Wyoming disclosure regime is not narrowly tailored as applied to WyGO. WyGO’s internal-accounting mechanisms are in full compliance with the statute, but WyGO has no way to comply with Wyoming’s reporting requirements without overdisclosing. Demanding that a small advocacy organization accept greater First Amendment burdens to remain in compliance with a ‘flexible’ statute is not narrow tailoring.”

“This decision recognizes that Americans for Prosperity Foundation tightened the exacting-scrutiny standard for disclosure regimes by requiring narrow tailoring,” explained Institute for Free Speech Senior Attorney Del Kolde. “This is an important message that disclosure regimes must do more than pass intermediate scrutiny.”

This victory reaffirms that opponents of privacy in association will have to meet a high bar to impose intrusive disclosure regimes for nonprofit groups that speak to the public about issues central to their mission. Nonprofit organizations have a First Amendment right to discuss the issues of the day, and any burden on their advocacy will face rigorous review from the courts.

Wyoming learned this lesson the hard way, and it will now be state lawmakers’ duty to clean up their mess, strike this unconstitutional statute from state code, and ensure robust privacy protections for nonprofits and their supporters moving forward.