On July 27, the District Court for the Southern District of New York issued an opinion in Citizens United v. Schneiderman, 14-CV-3703 (S.D.N.Y.), denying a motion by Citizens United and Citizens United Foundation to preliminarily enjoin the New York Attorney General from enforcing his policy of requiring registered charities to disclose the names, addresses, and total contributions of their major donors in order to solicit funds in the state. The attorney general’s policy requires charitable organizations that solicit funds in New York to provide copies of Schedule B to IRS Form 990, which contains names of donors who contributed $5,000 or more in cash or property to the organization during the past year. Pursuant to federal law, the IRS does not make Schedule B to IRS Form 990 available to the public.
Citizens United contended that the attorney general’s policy violated their First Amendment rights to free speech and free association, that an alleged “abrupt change” in the policy violated their due process rights, that the policy violated New York’s State Administrative Procedure Act, and that the policy was preempted by federal law, which sets out a mechanism for states to request Schedules B from the IRS and also ensures the confidentiality of donor information. The district court held that Citizens United could not demonstrate a likelihood of success on the merits of any of their claims.
In particular, the district court held that Citizens United’s First Amendment unconstitutional burden claim was not likely to succeed because the attorney general’s policy “substantially relates to the important governmental interests of enforcing charitable solicitation laws and overseeing charitable organizations for the protection of the public,” which “justify the minimal burdens that the Schedule B policy places on charities’ speech and association rights.” The court also held that the policy was not an impermissible “prior restraint” on Citizen United’s ability to solicit donations because the policy only required the submission of specific information and “does not confer unfettered discretion on the Attorney General to impose additional conditions on charities that wish to solicit donations in New York.” In analyzing Citizens United’s First Amendment claims, the court relied on the Ninth Circuit’s analysis of “an extremely similar First Amendment challenge to a virtually identical California regulation” in Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1312 (9th Cir. 2015).