Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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The New York Attorney General requested Citizens United and Citizens United Foundation to file Schedule B, a form that discloses the names, addresses, and total contributions of their major donors (donors of more than $5,000), as per New York law. Citizens United responded by requesting a court preliminary injunction to enjoin the Attorney General from requesting such information, alleging a violation of First Amendment rights to freedom of speech and association, among other arguments. The U.S. District Court denied Citizens United’s request.
Citizens United and Citizens United Foundation are non-profit and non-stock corporations that have been active in New York since 1995. Article 7 of the New York Executive Law requires charities to register with the New York Attorney General to be able to solicit donations in state. In 2006, the Attorney General introduced a regulation that required charities to submit copies of IRS forms and schedules. Schedule B, one of the required submissions under the 2006 regulation, requires entities to disclose the name, address, and the total contribution of any donor who gave more than $5,000. Citizens United has never filed Schedule B in New York.
In 2012, the Charities Bureau reviewed its activities and identified certain organizations that did not file Schedule B with their annual reports. In response, the New York Attorney General introduced a policy to identify and notify registered charities that did not file Schedule B. In April 2013, Citizens United was notified that their 2011 annual tax reports were incomplete because of a missing Schedule B.
Citizens United requested the U.S. District Court to issue a preliminary injunction to prohibit the Attorney General from enforcing the Schedule B policy against them, alleging that the requirement violated Citizens United’s First Amendment rights to freedom of speech and association.
Citizens United’s First Amendment argument was based on two grounds: (1) unconstitutional burden – the Attorney General’s interest in enforcing Schedule B placed an unconstitutional burden on it; and (2) prior restraint argument – Article 7 of the New York Executive Law was unlawful because it conferred unchecked power to the Attorney General to impose unlimited conditions on charities’ ability to speak.
Charitable solicitation falls under the protection of the First Amendment and as such the disclosure requirement of the New York Attorney General must satisfy exacting scrutiny. This type of scrutiny requires the government to demonstrate that there is a substantial relation between the disclosure requirement and a sufficiently important government interest. In turn, Citizens United had to show that the Schedule B policy fails exacting scrutiny not only towards itself, but also other charities that engage in solicitation, advocacy, and informational campaigns.
The court reasoned that the government has a sufficiently important government interest in the enforcement of charitable solicitation laws and the oversight of charitable organizations for the protection of donors. In relation to Schedule B specifically, the court agreed with the Attorney General that the disclosure of information of large donors protects against possible fraud and criminal activity. In order to meet this interest, Citizens United argued that the Attorney General could request Schedule B directly from the IRS. The court, taking into account that the Attorney General supervises 65,000 charities, concluded that such requests would be too burdensome for the New York State. Thus, the court determined that there is a substantial relation between the Schedule B policy and a sufficiently important government interest.
Citizens United’s claim to the Schedule B policy burden relied heavily on the risk of public disclosure of donor information. However, the court held such fears to be unfounded after analyzing the Attorney General’s legal and administrative mechanisms to protect Schedule B information. Moreover, the court found the plaintiff’s argument that the disclosure would discourage donations from some donors due to fears of retaliation to be speculative. The court rejected this argument because Citizens United did not provide evidence that demonstrated this fear of retaliation among donors from their organization or other charities. This highlights the court’s reasoning that a broad interest in anonymity is outweighed by the substantial government interests served by Schedule B.
In judging the prior restraint argument, the court reviewed whether the Schedule B policy contained “narrow, objective, and definite standards to guide the licensing authority.”  The court agreed that “because Article 7-A requires charities to register with the Attorney General and submit annual reports in order to solicit contributions in New York, it functions as a prior restraint on speech.”  However, the court found that the law requires an exhaustive list of documents for a specific purpose and thus follows narrow, objective, and definite standards. Thus, the court ruled that Citizens United failed in making its prior restraints argument.
 Court’s decision, http://www.ag.ny.gov/pdfs/072715-SDNY-Citizens_United-Schneiderman_decision.pdf. See also, Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 131 (1992)
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision strengthens the government’s ability to impose minimal burdens on constitutional rights in certain cases. Specifically, it highlighted that broad interests in anonymity and speculative arguments of possible burdens do not outweigh and the government’s interests in preventing fraud and crime.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Charitable solicitations falls under the protection of the First Amendment.
“A prior restraint on speech violates the First Amendment if it places ‘unbridled discretion in the hands of a government official or agency.'”
“Prior restraint claims are properly analyzed as facial challenges.”
“To survive, ‘the strength of the governmental interest must reflect
the seriousness of the actual burden on First Amendment rights.'”
“A preliminary injunction is ‘an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.'”
“The enforcement of charitable solicitation laws and the oversight of charitable organizations for the protection of donors are, without a doubt, sufficiently important governmental interests.”
“Plaintiffs contend that they are entitled to a presumption of irreparable harm because ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'”
“‘[R]ecordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations’ of campaign finance laws.”
“Citizens United stakes its due process claim on Federal Communications Commission v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317–18 (2012), which held that an agency may not take enforcement action unless it has given fair notice that the conduct at issue is unlawful.”
“To pass constitutional muster, ‘”a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license’ must contain “narrow, objective, and definite standards to guide the licensing authority.”‘”
“At oral argument, plaintiffs took the position that a First Amendment violation would exist even in the absence of evidence that the Schedule B policy imposes actual burdens on charities’ rights of speech and association. (See Arg. Tr. 29.) The Court does not accept that proposition. Counsel relied on Talley v. California, 362 U.S. 60, 63–65 (1960), in which the Supreme Court invalidated an ordinance banning the distribution of handbills that did not identify their sponsors. In that case, counsel argued, the Supreme Court did not require a showing that disclosure of the handbill sponsors’ names would cause them harm. (Arg. Tr. 29.) As the Ninth Circuit explicated in Center for Competitive Politics, [784 F.3d 1316 (9th Cir, 2015),] however, Talley does not stand for the proposition that disclosure itself constitutes an injury that relieves the Court of its duty to consider the Schedule B policy’s actual burdens, if any, on speech and association.”
Case significance refers to how influential the case is and how its significance changes over time.
The case clarifies the scope of the New York Attorney General’s right to receive information from charities in New York State.
Let us know if you notice errors or if the case analysis needs revision.