Professional Documents
Culture Documents
16-3310
United States Court of Appeals
for the
Second Circuit
CITIZENS UNITED AND CITIZENS UNITED FOUNDATION,
Plaintiffs-Appellants,
v.
ERIC SCHNEIDERMAN, IN HIS OFFICIAL CAPACITY AS N.Y. ATTORNEY GENERAL,
Defendant-Appellee.
TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................................1
ARGUMENT ............................................................................................................2
I. PLAINTIFFS ADEQUATELY PLED THAT THE ATTORNEY
GENERALS REGISTRATION AND DISCLOSURE RULES VIOLATE
THE FIRST AMENDMENT........................................................................2
ii
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TABLE OF CONTENTS
(continued)
Page
III. THE ATTORNEY GENERALS DISCLOSURE POLICY IS PREEMPTED.......25
CONCLUSION .......................................................................................................31
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iii
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TABLE OF AUTHORITIES
Page(s)
CASES
American Target Advertising, Inc. v. Giani,
199 F.3d 1241(10th Cir. 2000) ............................................................................. 9
Barnhart v. Thomas,
540 U.S. 20 (2003) ..............................................................................................24
Buckley v. Valeo,
424 U.S. 1 (1976) ................................................................................................14
iv
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TABLE OF AUTHORITIES
(continued)
Page(s)
Children First Found., Inc. v. Fiala,
790 F.3d 328 (2d Cir.), abridged on other grounds by
Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239 (2015) ........................................................................................11
v
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TABLE OF AUTHORITIES
(continued)
Page(s)
In re Davis Will,
137 N.Y.S. 427 (Sur. Ct. 1912), affd, 141 N.Y.S. 1115 (N.Y. App.
Div. 1913) (per curiam) ......................................................................................27
Joseph v. Athanasopoulos,
648 F.3d 58 (2d Cir. 2011) .................................................................................29
McConnell v. FEC,
540 U.S. 93 (2003), overruled on other grounds by Citizens
United, 558 U.S. 310 (2010) ...............................................................................21
NAACP v. Alabama,
357 U.S. 449 (1958) ......................................................................................20, 21
vi
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TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. National Treasury Employees Union,
513 U.S. 454 (1995) ..........................................................................................4, 5
Watchtower Bible & Tract Socy of New York, Inc. v. Vill. of Stratton,
536 U.S. 150 (2002) .....................................................................................passim
STATUTES
vii
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TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
viii
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INTRODUCTION
showed in their opening brief that they adequately pled that the Attorney Generals
requirement that charities hand over their donor lists before the charities are
allowed to speak violates the First Amendment. In response, the Attorney General
treats this appeal as though the district court had granted summary judgment. But
this case is here on a motion to dismiss. Thus, the Attorney Generals arguments
about what he believes the evidence may show are beside the point.
The Attorney General also gets the law wrong. His lead argument (invented
however, this policy is plausibly a prior restraint. After all, the law is clear that
prior to engaging in solicitation, charities must disclose who gave them money last
year. The Attorney Generals further arguments on the First Amendment claims
amount to him trying to pass his burden onto the Organizations. But the
Organizations have met their pleading burden, and it is now time to test whether
the Attorney General can meet his burden of justifying his infringement of free
speech.
The district court should not have dismissed this action at the pleading stage.
Its order should be reversed, and this case should be remanded for discovery.
Case 16-3310, Document 93, 04/21/2017, 2016686, Page10 of 41
ARGUMENT
Generals requirement that charities register and disclose their donors identities is
to the Organizations. In response, the Attorney General repeats the same errors as
Amendment law, and doubting the complaints allegations. But this case is here on
true.
Ignoring that principle, the Attorney General argues about what he believes
the facts will show. He assumes the facts will show that his policy is sufficiently
actually keeps donor lists hidden from public view. And he assumes that the
Organizations will not be able to show their donors will be harmed if their
identities are revealed. These assumptions are demonstrably wrong; but more
Each of the Organizations First Amendment claims are adequately pled, and
2
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unconstitutional prior restraint on speech by not allowing them to speak unless the
Organizations first tell the Attorney General who their donors are. In response, the
Attorney General raises three basic arguments, two of which were not raised below
speak a little, the government can impose whatever restraints it wants going
forward. Tellingly, the Attorney General did not pursue this argument below. See
generally Mem. of Law in Supp. of Mot. To Dismiss the First Am. Cmplt., ECF
No. 61 (Nov. 20, 2015). Instead, the Attorney General only argued that his
restraint was constitutional under the parade-permit exception (more on that later).
In any event, there is no merit to the Attorney Generals contention that the
disclosure requirement is not plausibly a prior restraint. New York law makes
clear that [e]very charitable organization shall prior to any solicitation, file
with the attorney general a prescribed registration form that includes, pursuant to
3
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the Attorney Generals interpretation, donor lists (that is, its annual report that
includes the Schedule B listing of the names, addresses, and contribution amounts
of major donors for the immediately preceding fiscal year). NY Exec. Law
172(1)(h)(i). The current rule is that if a charity does not give its donors
identities to the Attorney General, it cannot speak. The statute and the Attorney
General make clear that the donor list must be given to the Attorney General prior
to any solicitation. That is a classic prior restraint. See Nebraska Press Assn v.
Stuart, 427 U.S. 539, 559 (1976). And the district court agreed: it is clear that the
made in an annual requirement, it cannot be a prior restraint; said another way, the
requirement arises while organizations are engaged in speech. But the requirement
undeniably restrains speech that would occur after the due date for the disclosure.
Indeed, courts would little tolerate a rule that permitted writers to release the first
chapter of their books, but before publishing the rest required writers to obtain the
governments seal.
Employees Union, 513 U.S. 454 (1995)), fells his new timing theory. There, a
compensation for speeches or articles. 513 U.S. at 457. Even though the law did
4
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not actually prohibit employees from speaking or writing, the Court explained that
unlike an adverse action taken in response to actual speech, this ban chills
potential speech before it happens. Id. at 468. Even though speech was otherwise
occurring, the ban was akin to a prior restraint because it chilled future speech.
That is all the more true of the Attorney Generals disclosure requirement. Unlike
The other cases the Attorney General relies on (at 25) are irrelevant to the
U.S. 123, 130 (1992)) or licenses unrelated to speech. For example, Ward v. Rock
unconstitutional. 491 U.S. 781 (1989). In a footnote, the Court concluded that the
amplification rule was not a prior restraint because it fell within the single
exception to the rule that prior restraints are unconstitutional, namely regulations
of competing uses of public forums. Id. at 795 n.5. In those limited circumstances,
courts will uphold prior restraints if the regulation at issue does not delegate
130. Here, the Attorney General is not regulating communal resources, but rather
private speech between organizations and individuals who may wish to support the
5
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The Attorney Generals other case, Blue Canary Corp. v. City of Milwaukee,
251 F.3d 1121 (7th Cir. 2001), upheld a law that required businesses to obtain a
called a prior restraint after all they are not restraining speech. But the Attorney
(Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600, 611 (2003))
unless the Attorney General gives his permission. Compare Blue Canary, 251
F.3d at 1123 (In the England of Shakespeares day and indeed for centuries
afterwards, a play could not be exhibited in a theater without a license from the
There are thus no grounds for disagreeing with the district courts conclusion
registration requirements (which the Attorney General now views as separate from
the disclosure requirement) because the Organizations registered some years ago.
Even if this new divide-and-conquer strategy were colorable (see SA4 (dist. ct. op.)
6
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(it is clear that the regime is plausibly a prior restraint (emphasis added)), just
because a plaintiff may comply with an unconstitutional mandate, does not rob the
plaintiff of standing to challenge it. Otherwise, for example, there could never be a
challenge to tax regulations in district court. See Flora v. United States, 357 U.S.
63, (1958), affd on rehg, 362 U.S. 145 (1960) (holding a taxpayer must pay the
file Schedules B, he threatened to fine the Organizations. (JA262); see also N.Y.
Exec. Law 177(2) (authorizing fines). These fines are a direct result of the initial
registration requirements, and thus the Organizations injuries stem from those
registration requirements.
Attorney Generals Office has cabined his own authority by identifying what
charities must disclose in order to speak. This is the same error the district court
to prior restraint law in a manner that would eviscerate the protections Anglo-
7
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American law has guaranteed speakers for centuries. See Grosjean v. Am. Press
There is one narrow exception to the rule that prior restraints are
unconstitutional. See Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 70 (1963)
(noting all prior restraints are presumed unconstitutional). When the government
Forsyth, 505 U.S. at 130. But that exception has never applied to private speech.
See Bantam Books, 372 U.S. at 70. Rightly so. Persons do not harbor settled
expectations that the contents of their private speech are generally subject to
opposite view. United States v. X-Citement Video, Inc., 513 U.S. 64, 71 (1994).
and organizations before allowing them to speak so long as his demand is clear and
demand a politicians emails before allowing her to give a stump speech. In each
of these hypotheticals, the requirements are (to borrow the Attorney Generals own
words (at 29)) exact and objective, and as long as the speakers comply they are
8
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permitted to speak. But [i]t is offensive not only to the values protected by the
First Amendment, but to the very notion of a free society that in the context of
everyday public discourse a citizen must first inform the government of her desire
to speak to her neighbors and then obtain a permit to do so. Watchtower Bible &
Tract Socy of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 165-66 (2002).
This is precisely why the unbridled discretion test does not apply to the
departure from our national heritage and constitutional tradition. Id. at 166.
The Attorney General provides only two cases (at 31) on this point, but
neither supports his argument. First the Attorney General relies on American
Target Advertising, Inc. v. Giani, 199 F.3d 1241(10th Cir. 2000). But that case
cuts against the Attorney General because there the Tenth Circuit ruled that
definitionally qualifies as a prior restraint. Id. at 1250-51. While the court did
apply the unbridled discretion test, that does nothing to help the Attorney
Generals argument here since the court struck down the registration requirement.
Id. at 1252. And in Dayton Area Visually Impaired Persons, Inc. v. Fisher, the
court was reviewing the district courts preliminary injunction order for an abuse
9
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of discretion, not de novo as on a motion to dismiss. 70 F.3d 1474, 1480 (6th Cir.
1995). It also appears that the plaintiffs in that case conceded the discretion test
Attorney Generals policy here does; instead, they involved merely registration.
raises entirely different First Amendment concerns. See Br. of Amicus Curiae Free
can be constitutional so long as the reviewing authority limits his discretion, the
Attorney General has not done so here. New Yorks law does not constrain the
Attorney General one iota, but instead gives the Attorney unbridled discretion
(City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750, 755 (1988)) to
constraining his discretion, the Attorney General readily admits (at 31) that he has
the unilateral power to alter the rules for charities in the future. And he has not
hesitated to exercise that power when it suits him. The Attorney General admits
(at 56-57) that in 2013 he adopted a rule requiring public donor disclosures for
groups engaged in political campaign speech, and later rescinded that rule (at 56
10
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n.22). The Attorney Generals statement and actions are not what one normally
associates with a bureaucrat who recognizes his discretion has been cabined.
is a factual question that can only be answered through discovery, not resolved on
the pleadings. See Children First Found., Inc. v. Fiala, 790 F.3d 328, 344-45 (2d
Veterans, Inc., 135 S. Ct. 2239 (2015). The Attorney Generals argument (at 32)
Organizations are wrong as a matter of fact. But what matters here are the
allegations. And the Organizations have properly alleged that not all
organizations who have declined to file full Schedules B have been sent deficiency
notices and that the Attorney General has exercised unfettered discretion to
added).) Thus, even if the parade-permit exception were to apply here, the
There is no merit to the Attorney Generals assertion (at 33) that these
allegations do not count because the Organizations made them on information and
11
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appropriate because the facts supporting the claim are peculiarly within the
possession and control of the [Attorney General]. Arista Records LLC v. Doe 3,
604 F.3d 110, 120 (2d Cir. 2010). But even if the Organizations are required to
provide facts at this stage of the proceedings to support their allegation of non-
uniform enforcement they have: Until this Attorney General came into office, the
Organizations had never been asked to submit their donor lists. (JA250-51.) That
supports the complaints allegation that the Attorney General is using his new
The district court should have denied the Attorney Generals motion to
dismiss this claim the moment the court concluded it is clear that the regime is
plausibly a prior restraint. (SA4.) The First Amendment cannot tolerate a prior
exception applies here and, even if it did, the Organizations have adequately
alleged that the Attorney General has too much discretion for his regime to stand.
standard of review and then asserts his policy survives that review. The Attorney
12
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General is wrong on both counts. His policy is subject to strict scrutiny and even if
only exacting scrutiny applies the Attorney General must come forward with facts
after discovery to prove his policy is constitutional. Requiring anything less would
under strict scrutiny, meaning if this Court concludes that strict scrutiny applies, it
must reverse the district court. Instead, the Attorney General argues (at 36-41) that
his policy is not subject to strict scrutiny, but rather exacting scrutiny the
Supreme Court precedent. Just last term, the Supreme Court reiterated that laws
Bar, 135 S. Ct. 1656, 1664 (2015); see also Vill. of Schaumburg v. Citizens for a
Better Envt, 444 U.S. 620, 631 (1980) (Solicitation and speech [are] so
intertwined that a prior permit could not be required.). The Attorney Generals
speech does him no good here because the Attorney Generals disclosure
13
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The Attorney Generals preferred standard, exacting scrutiny, does not apply
outside campaign finance law. See Op. Br. of Appellants 34-37. The Attorney
scrutiny outside the context of campaign finance regulation confirms the limited
application of the exacting scrutiny standard. See Ctr. for Competitive Politics v.
Harris, 784 F.3d 1307, 1312 n.2 (9th Cir.), cert. denied, 136 S. Ct. 480 (2015)
(recognizing that the Supreme Court has never extended exacting scrutiny).
Well aware of this, the Attorney General argues (at 39) that there is no
Free speech analysis begins with the assumption that the highest level of protection
where courts have identified sufficient reasons, the standard of review has been
lowered. But the Attorney General does not offer the sort of justifications that are
F. Supp. 3d 1049, 1054 (C.D. Cal. 2016) (AFPF)), including provid[ing] the
14
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66-68 (1976). The disclosures mandated by the Attorney General do not serve
these interests. They do not provide the public with information (at least to the
extent the Attorney General keeps the disclosures secret) and they do not serve any
certainly is a public interest in preventing charities from committing fraud. But the
outside the campaign finance context. 514 U.S. 334, 353 (1995). The Attorney
General obliquely says that McIntyre did not hold that avoiding corruption in
elections is the only interest that supports disclosure laws. Fair enough. There
may be ample justifications for disclosure laws. But that does not undermine
The Attorney General makes a related error in arguing (at 34-35, 52-53) that
him (at 35), his policy is constitutional as long as it has a plainly legitimate
15
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number of applications of his policy are unconstitutional, then his policy must fall.
That is fatal in this procedural posture. Forcing charities to disclose their donor
City of Chicago, 9 F.3d 1309, 1322 (7th Cir. 1993) (en banc) ([T]he norm [in First
Amendment cases] is to wait until the summary judgment stage of the litigation to
General claims he can clear it. But even under that inapplicable lower standard,
the Attorney General has not shown his policy meets exacting scrutiny, i.e., that his
interest). Foremost, he has not done so because he has not even filed an answer.
The government cannot prove its policy is constitutional here without producing
Interest. The Attorney General asserts (at 44) that the Organizations have
policy serves that interest. And on that score the Attorney General has not
16
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established that disclosure of donors identities helps ferret out fraud. Indeed, the
Attorney General does not explain why for years this disclosure was not needed to
combat fraud. (JA250.) Nor does he address that New York is one of only three
states that requires disclosure. In any event, the Attorney General must prove his
illegality. It is not enough, now or even after discovery, for the Attorney General
to offer only his say so. To allow him to do so would effectively reduce exacting
Tailoring. When it comes to the tailoring inquiry, the Attorney General (at
50) argues that the only asserted injury is the possibility that the Schedule Bs
might become publicly disclosed. That, according to the Attorney General, is not
enough to outweigh his interest in knowing who is donating to charity. But that is
not the only injury at issue here. The real injury is that if charities refuse to
comply they cannot solicit funds. Thus, the Attorney Generals interest must be
serious enough (under exacting scrutiny) to justify denying charities the right to
speak if they do not comply with his mandate. The Attorney General has made no
attempt to show that his purported interest outweighs the fundamental free-speech
Instead, the Attorney General asserts (at 50) that there is no reason to believe
the Schedule B information will be made public. This is directly contrary to the
17
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Attorney General may release the information, and supported the allegation with a
specific claim that in the past the Attorney General has made Schedule Bs
undermines those allegations. He says (at 50-51) that Schedules B are exempt
Information Law], just as they are exempt from disclosure by the IRS under FOIA.
But that the Attorney General is not required to release the information in response
to a request from the public says nothing about whether he might release the
information on his own. And though the Internal Revenue Code generally prevents
the IRS from publicly disclosing Schedules B, it does not prevent state officials
from publicly disclosing return information collected by the state directly from
taxpayers. Americans for Prosperity Found. v. Harris, 809 F.3d 536, 542 (9th Cir.
The Attorney General attempts to inject factual disputes into this appeal (at
information is kept confidential. (JA15.) That is a factual matter for the merits,
admits in his brief that Schedule B information has been publicly available in the
18
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Yorks charities website in January of this year. See also Br. of Amicus Curiae
Americans for Prosperity Foundation 26 & n.9. There is thus a real prospect that
Schedule B information will become publicly available if charities comply with the
Perhaps recognizing this, the Attorney General changes the subject to argue
(at 52) that public disclosure of the donor information on Schedule Bs would not
impose any undue First Amendment burden, because public disclosure is only
unconstitutional even if a speaker does not face threats or harassment. 536 U.S. at
166. In that case, the Court gave [t]hree obvious examples. Id. First, such
disclosure results in a loss of anonymity. And some choose anonymity merely out
Buckley v. Am. Constl Law Found., Inc., 525 U.S. 182 (1999). Second, requiring
Watchtower Bible, 536 U.S. at 167. Some may prefer silence to speech licensed
19
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But, once again engaging the Attorney General on his erroneous terms, even
assuming the Organizations were required to allege that their members have faced
retaliation, they have done so. They specifically alleged in their complaint that
their donors fear public backlash, financial harm, and worse, should their
achieved and the criticisms they have faced (JA252), it is hardly a novel
For similar reasons, the Organizations have adequately pleaded their as-
applied challenge. They have alleged that the Attorney Generals policy is
backlash if they are forced to disclose their donors. Specifically, the Organizations
alleged that their donors fear public backlash, financial harm, and worse, should
publicly. (JA248.) Supporting that allegation is the fact that the Organizations
20
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There can be little question that donors to controversial organizations fear being
The Attorney General wants more specifics, and claims (at 55) that the
Organizations allegations are too conclusory. But all the Organizations must
show is a reasonable probability that their donors will face backlash. McConnell v.
FEC, 540 U.S. 93, 198 (2003), overruled on other grounds by Citizens United, 558
U.S. 310 (2010. That they have certainly done, with specifics to explain why. No
more is required and, if the Attorney General had his way, the Organizations would
have to inflict upon themselves the very harm they are trying to avoid: They would
have to publicly identify their donors, who will then face social ostracization and
worse.
182 F. Supp. 3d 1049, which recently sustained an as-applied challenge (after trial)
AFPF because at trial the Court heard ample evidence establishing that AFPF, its
and retaliation once their support for and affiliation with the organization becomes
publicly known. Id. at 1055; see also Br. of Amicus Curiae AFPF 21.
21
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promised that all Schedules B would be kept confidential (just as New Yorks
Attorney General does here). AFPF, 182 F. Supp. 3d at 1057. But discovery
Parenthoods confidential Schedule B, which included all the names and addresses
of hundreds of donors. Br. of Amicus Curiae AFPF 21 n.7 (quoting AFPF, 182 F.
Supp. 3d at 1057). To determine whether the New York Attorney Generals office
commits these same errors which it appears it does (id. at 26) the
challenge at this stage of the litigation. The Organizations have adequately alleged
that there is a real risk the Attorney General will make Schedule B information
publicly available and that their donors face backlash if their support for the
22
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Organizations plausibly alleged that this change violated their due process rights
The district court dismissed this claim, sua sponte, finding the claim was not
ripe. (SA13.) But as the Organizations explained in their opening brief (at 43-46)
that conclusion was erroneous. The Organizations claim is ripe because they face
fines if they do not comply with the Attorney Generals new policy.
Apparently, the Attorney General agrees with the Organizations that the
district courts ripeness analysis is incorrect, because he does nothing to defend the
district courts holding and instead says (at 57) that the better ground for dismissal
is on the merits. Because the district court did not reach the merits, however, this
Court should remand for the district court to consider the merits in the first
instance.
There is also no ground for dismissing the due process claim on the merits.
The Attorney General argues (at 58) that he has not, in fact, changed his policy.
But this misunderstands the procedural posture of this appeal. The Organizations
have alleged that this is a change in how the relevant regulation was interpreted,
that it occurred in 2012 in response to the election of the present Attorney General,
and that this change was not made public until the beginning of this litigation.
23
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resolved on their merits now. Rescuecom Corp. v. Google Inc., 562 F.3d 123, 127
The Attorney General contends (at 58) that he has long required charities to
submit their full Schedules B, because the regulation provides that charities must
file a copy of the complete IRS Form 990, 990-EZ or 990-PF with schedules. 13
N.Y.C.R.R. 91.5(c)(3)(i)(a). That language the Attorney General asserts (at 58)
cannot reasonably be read in any other way than to continue requiring the filing of
contrary, that language is most naturally read not to require schedules be included
with Form 990. The placement of with schedules after 990-PF signals that
with schedules only applies to form 990-PF. See Barnhart v. Thomas, 540 U.S.
20, 26 (2003) (explaining the grammatical rule of the last antecedent, according to
which a limiting clause or phrase ordinarily be read as modifying only the noun
interpreted the regulations differently than he does today. Prior to the new
Attorney General, the Organizations regularly filed redacted Schedules B and the
Attorney General found that sufficient. (JA251, 30.) Schedule B includes other
information, such as what section of the tax code the entity is organized under and
24
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whether total contributions exceeded $5,000, and plaintiffs have filed that portion.
that might literally permit this new course is no answer. FCC v. Fox Television
Stations, Inc., 132 S. Ct. 2307, 2318, 231920 (2012). What must be examined
agencys prior course of enforcement would have given the speaker fair notice
prior to the hammer being brought down upon him. Id. at 2320 (emphasis
added). This is especially true here where, as the district court recognized, the
Attorney General has admitted that its practices changed in 2012. (JA146.) Given
that the policy had apparently been to permit the filing of Schedules B without
donor identities, the Organizations are entitled to test through discovery the nature
and motivations for the change in policy and what the relevant officials
The Attorney Generals policy is also preempted by federal law because the
Attorney Generals policy conflicts with federal tax law, which sets forth a
25
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officials. The Attorney General argues (at 62) that nothing in federal tax law
explicitly forbids him from requiring charities to disclose donor lists. But that is
not the test for conflict preemption. Rather, the test is whether the state practice
conflicts with the objectives of the federal law. Wis. Dept of Indus., Labor &
identities to the IRS, but generally forbids public disclosure of that information. 26
U.S.C. 6103(a), 6104(b); see also S. Rep. No. 91-552 (1969), reprinted in 1969
U.S.C.C.A.N. 2027, 2081. Recognizing that some state officials may need donor
and state officials that information in very limited circumstances. See 26 U.S.C.
thus so dominant that the federal system will be assumed to preclude enforcement
of state laws on the same subject. Arizona v. United States, 132 S. Ct. 2492, 2501
(2012). Were the Organizations to comply with the Attorney Generals demand, it
would frustrate the purposes of the federal scheme. SPGGC, LLC v. Ayotte, 488
F.3d 525, 531 (1st Cir. 2007); see also Gould Inc., 475 U.S. at 286 (noting that
conflict is imminent whenever two separate remedies are brought to bear on the
26
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same activity). For these reasons, the Attorney Generals disclosure requirement
is preempted.
Citizens United, which is a social welfare organization. New York law does not
permits him to regulate charitable organizations (N.Y. Exec. Law 172), which
The Attorney general does not deny that these are well-established terms of
art. See In re Davis Will, 137 N.Y.S. 427, 427 (Sur. Ct. 1912), aff d, 141 N.Y.S.
1115 (N.Y. App. Div. 1913) (per curiam) (mem.) (The words charitable use are
a term of art.). Nor does he contest that the statute does not qualify the list as
illustrative, meaning the types of organizations covered are only the four types
listed. See Fed. Land Bank of St. Paul v. Bismark Lumber Co., 314 U.S. 95, 100
Instead, the Attorney General (at 68) says the definition of eleemosynary
is simply not for profit. (quoting Blacks Law Dictionary (10th ed.). That is
not correct. Blacks Law Dictionary (as in print in 1977, when New Yorks law
27
Case 16-3310, Document 93, 04/21/2017, 2016686, Page36 of 41
was adopted) defines the term as [r]elating to the distribution of alms, bounty or
charity; charitable. Blacks Law Dictionary 611 (4th Rev. ed. 1968). (The 10th
primarily as [o]f, relating to, or assisted by charity.). And the more explanatory
meaning of the term is organizations that are constituted for the perpetual
distributions of the free alms or bounty of the founder of them, to such persons as
63 (1819); see also People ex rel. Watchtower Bible & Tract Socy, Inc. v. Haring,
170 N.E.2d 677, 681 (N.Y. 1960). Citizens Untied is not distributing free-alms.
The Attorney General (at 65-66) next relies on his own regulations, saying
organizations for many years. It is true that the Attorney Generals regulations
requiring registration purport to reach not only charitable organizations, but also
Commerce v. New York City Dept of Health & Mental Hygiene, 970 N.Y.S.2d 200
28
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specifically omits (c)(4)s, showing that social welfare organizations are not
charitable under federal law includes the promotion of social welfare, a (c)(4)
definition a charity for purposes of New York law. But as just discussed, New
York law is clear that charity does not include social welfare.
fundamentally different from charities. For one, social welfare organizations can
as the Attorney General points out (at 68) that a social welfare organization,
under federal law, is permitted to do some of the same activities as charities. But
that does not make a social welfare organization a charity. Under that rationale,
a for profit company that engages in some charitable activities, such as sponsoring
Finally, if this Court has any doubt as to the meaning of New Yorks law, it
should allow the New York Court of Appeals to determine the meaning of [its]
own la[w] in the first instance. Joseph v. Athanasopoulos, 648 F.3d 58, 68 (2d
Cir. 2011); see also Second Circuit Local R. 27.2. New Yorks highest court has
29
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not decided the question presented in this case, the question is clearly important,
and whatever answer the state court gives will resolve this issue. See Barenboim v.
30
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CONCLUSION
For these reasons, the judgment below should be reversed. As to the state-
law claim, this Court should also reverse, but alternatively certify to the New York
Court of Appeals whether the Attorney General has the authority under the New
Michael Boos
General Counsel
CITIZENS UNITED
& CITIZENS UNITED FOUNDATION
Boos Law Office
4101 Chain Bridge Rd. Ste 216
Fairfax, VA 22030
Tel: (703) 691-7717
Fax: (703) 691-7543
michaelboos@verizon.net
Todd Geremia
JONES DAY
250 Vesey St.
New York, NY 10281
Tel: (212) 326-3429
Fax: (212) 755-7306
Andrew Bentz
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Tel: 202.879.3939
Fax: 202.626.1700
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Federal Rule of
proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New
Roman type.
CERTIFICATE OF SERVICE
I certify that on April 21, 2017, the foregoing was electronically filed on the
Courts ECF service, which caused it to be served on all other parties or their
counsel of record.