Amicus Curiae Brief — Rio Grande Foundation, Petitioner v. Maggie Toulouse Oliver, in Her Official Capacity as Secretary of State of New Mexico

No. 25-1248

IN THE

Supreme Court of the United States

————

RIO GRANDE FOUNDATION,

Petitioner,

v.

MAGGIE TOULOUSE OLIVER, IN HER OFFICIAL CAPACITY

AS NEW MEXICO SECRETARY OF STATE,

Respondent.

____________________________________________________________________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION AND MANHATTAN

INSTITUTE IN SUPPORT OF PETITIONERS

————

ILYA SHAPIRO

TREVOR BURRUS

MANHATTAN INSTITUTE

52 Vanderbilt Ave

New York, NY 20017

(212) 599-7000

ishapiro@manhattan.institute

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

MICHAEL PEPSON

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amici Curiae

June 3, 2026

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICI CURIAE ..........................................1

BACKGROUND ...............................................................2

SUMMARY OF ARGUMENT .............................................. 3

ARGUMENT.................................................................... 8

I.

AMERICANS FOR PROSPERITY FOUNDATION V.

BONTA CONTROLS AND EXACTING SCRUTINY MUST

BE APPLIED TO DONOR DISCLOSURE ......................8

A.

AFPF Held that Exacting Scrutiny Is the

Proper Standard for Compelled Disclosure of

Donor Information ............................................8

B.

AFPF Was Not Limited to Charities, But

Relied Heavily on Political Advocacy

Disclosure Precedent ........................................9

C.

Narrow Tailoring Requires Causation—Not

Broad Definitions or Circular Reasoning ...... 11

D.

AFPF Does Not Require Multi-Level Injury to

Establish Standing Nor Evidence that the

Risk to Donors and Recipients is the Same ... 13

E.

The First Circuit’s Gaspee Opinion Misapplied

AFPF and its Mischief is Spreading Here ..... 15

II. THE COURT SHOULD GRANT CERTIORARI TO STOP

THE INCREASING MISAPPLICATION OF AFPF V.

BONTA .................................................................. 19

CONCLUSION ............................................................... 21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Americans for Prosperity Foundation v. Bonta,

594 U.S. 595 (2021) .. 3, 4, 8, 9, 10, 11, 14, 15, 20

Americans for Prosperity Foundation v. Meyer,

No. 23-00470, 2024 WL 1195467,

(D. Ariz. Mar. 20, 2024) .................................... 20

Bates v. Little Rock,

361 U.S. 516 (1960) ........................................... 10

Buckley v. Valeo,

424 U.S. 1 ....................................... 10, 11, 15, 16

Citizens United v. Federal Election Com’n,

558 U.S. 310 (2010) ....................................... 7, 17

Dinner Table Action v. Schneider,

2025 WL 1939946, (D. Me. July 15, 2025) ....... 20

Doe v. Reed,

561 U.S. 186 (2010) ............................................. 9

Fed. Election Comm’n v. Wisconsin Right To

Life, Inc., 551 U.S. 449 (2007) ...................... 5, 10

First Choice Women’s Res. Centers, Inc. v.

Davenport, 146 S. Ct. 1114 (2026) .............. 15, 20

iii

First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ........................................... 16

Gaspee Project v. Mederos,

13 F.4th 79 (1st Cir. 2021) .... 6, 15, 16, 17, 18, 19

Gibson v. Florida Legislative Investigation Comm.,

372 U.S. 539 (1963) ............................................. 9

McCutcheon v. Federal Election Commission,

572 U.S. 185 (2014) ........................................... 12

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) ............................................. 3

NAACP v. Button,

371 U.S. 415 (1963) ................................ 5, 10, 11

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) .................................... 10, 11

Shelton v. Tucker,

364 U.S. 479 (1960) ........................................... 11

Sweezy v. State of N.H. by Wyman,

354 U.S. 234 (1957) ........................................... 10

Van Hollen, Jr. v. Fed. Election Comm’n,

811 F.3d 486 (D.C. Cir. 2016) ........................... 18

Constitutions

U.S. Const. Amend. I

1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 14, 15, 16, 17, 19, 20

iv

Statutes

N.M. Stat. Ann. § 1-19-26(Q)(3)(c) ........................... 2

N.M. Stat. Ann. §§ 1-19-27.3(A)(1), (B) ................... 2

N.M. Stat. Ann. § 1-19-27.3(D)(2) .......................... 20

N.M. Stat. Ann. § 1-19-32(c) ................................ 2, 5

N.M. Stat. Ann. § 1-19-34.6(B) ................................ 3

N.M. Stat. Ann. § 1-19-36 ........................................ 3

Other Authorities

Black’s Law Dictionary (12th ed. 2024)................... 3

Cynthia Fleming Crawford, Narrow

Applicability Is Not the Same As Narrow

Tailoring: Applying the First

Amendment in First Choice Women’s

Resource Centers v. Platkin, FedSoc Blog

(Feb 21, 2025). ..................................................... 6

Evan Tsen Lee & Josephine Mason Ellis,

The Standing Doctrine’s Dirty Little

Secret, 107 Nw. U. L. Rev. 169 (2012). ............. 13

Federalist Papers ..................................................... 3

1

INTEREST OF AMICI CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because protection of the

freedoms of expression and association, guaranteed by

the First Amendment, is essential for an open and

diverse society.

In particular, AFPF has an interest in this case

because laws like the New Mexico disclosure mandate

threaten the rights of speakers to speak anonymously

and the rights of individuals to associate freely for

whatever reason they wish. The New Mexico law

places the ability to support diverse projects and

opinions at risk by implying that potentially

unrelated donors are linked, chilling participation to

only those circumstances in which all participants are

aware of each other and are willing to shoulder all the

views of the others—excluding temporary or limitedpurpose cooperation for fear of being painted with a

broad brush. Driving civil society further into

tribalism will operate to the detriment of us all.

The Manhattan Institute (“MI”) is a nonprofit

public policy research foundation whose mission is to

develop and disseminate new ideas that foster

1 All parties have received timely notice of amici’s intent to file

this brief. No counsel for a party authored this brief in whole or

in part and no person other than amici or its counsel made any

monetary contributions to fund its preparation or submission.

2

economic choice and individual responsibility. To that

end, it has historically sponsored scholarship

supporting the rule of law and opposing government

overreach, including in the marketplace of ideas. Its

scholars regularly speak on college and graduateschool campuses, and likewise have faced protest,

shutdown, and cancelation. MI also runs the Adam

Smith Society, which brings together business-school

students and alumni for discussion and debate on how

the free market has contributed to human flourishing

and opportunity for all.

This case interests amici because the First

Amendment prevents the mandated tribalism at its

heart.

BACKGROUND

The New Mexico Campaign Reporting Act (“the

Act”) requires any person making independent

expenditures that exceed $1,000 in a non-statewide

election or $3,000 in a statewide election to report the

name and address of donors who funded those

expenditures. N.M. Stat. Ann. §§ 1-19-27.3(A)(1), (B);

see Pet. 6 –7. There is no exclusion for donors who are

not aware of the message. Pet. 5. As relevant here, an

independent expenditure is made to pay for an

advertisement that “refers to a clearly identified

candidate or ballot question and is published and

disseminated . . . within thirty days before the

primary election or sixty days before the general

election.” N.M. Stat. Ann. § 1-19-26(Q)(3)(c).

All reports are posted publicly on the Secretary of

State’s website. N.M. Stat. Ann. § 1-19-32(c); Pet. 7.

Violations are punishable by up to one year in prison,

a $1,000 fine, or both, and civil penalties of up to

3

$20,000. See Pet. 7–8 (citing N.M. Stat. Ann. § 1-1936; § 1-19-34.6(B)).

SUMMARY OF ARGUMENT

Anonymous speech and association have been

essential to the framework and vigor of this country

since its founding. As Judge Eid noted below

regarding written advocacy:

Perhaps most famously, this includes

advocacy for the ratification of the

Constitution itself by “Publius,” the

collective pseudonym used by Alexander

Hamilton, James Madison, and John Jay

when writing the Federalist Papers.”2

Had Publius been confronted with compelled

disclosure under New Mexico’s law, their writings

may have never seen the light of day. Had AFPF v.

Bonta, 594 U.S. 595 (2021), existed at the time,

however, Publius may reasonably have invoked it to

protect the identities of its component writers. And,

under longstanding First Amendment law, Publius

could likewise have assumed that political writings

would receive the very highest level of protection.

But, as this case shows, that expectation may well

have been misplaced. After all, if limiting core political

speech can be deemed a compelling governmental

interest through the simple expedient of broad

statutory definitions, and a disclosure scheme

rendered narrowly-tailored by applying it to a limited

2 App. 3a (Eid, J., dissenting from denial of petition for rehearing

en banc) (citing Federalist Papers, Black’s Law Dictionary (12th

ed. 2024); see also McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 343 n.6 (1995) (detailing other anonymous political writings

from the Founding Era)).

4

number of people, then Hamilton, Madison, and Jay

would have been left bare.

Publius was writing for a political purpose; and

exposure of the underlying writers would affect only

three people. Thus, under the reasoning here—and a

growing number of other federal courts—that is

enough to satisfy exacting scrutiny.

But that is not what AFPF requires. Under AFPF,

exacting scrutiny requires the government to explain

why it needs this information from these people.

AFPF was a facial challenge to a regulation

requiring charities operating in California to register

with the Attorney General’s office and disclose major

donors by filing Schedule B of their IRS Form 990. See

594 U.S. at 601–04. AFPF, which was subject to the

regulation, challenged the blanket donor disclosure

requirement on the basis that it burdened the First

Amendment associational rights of its donors. Id. at

601–03. This Court held that exacting scrutiny

applied and therefore the government was required to

demonstrate narrow tailoring, or a “means-end fit”

that “demonstrate[s] its need for universal production

in light of any less intrusive alternatives.” Id. at 613.

Had AFPF been applied to Hamilton, Madison,

and Jay, writing as Publius, their identities would

have been protected unless the government could

show a “sufficiently important governmental interest”

in exposing them and narrow tailoring of the demand

to government’s asserted interest. Id. at 607.

Not so here.

First, this case classifies speech as being for a

“political purpose” to dictate whether it is protected—

leaving speech for a political purpose with less

5

constitutional protection than other speech. App. 20a–

21a. But that approach is inconsistent with NAACP v.

Button, 371 U.S. 415, 429 (1963) (“a State cannot

foreclose the exercise of constitutional rights by mere

labels”). And is at odds with the bedrock principle that

“the First Amendment requires . . . err[ing] on the

side of protecting political speech rather than

suppressing it.” FEC v. Wis. Right to Life, Inc., 551

U.S. 449, 457 (2007). Such an approach would have

left Publius scratching his head as his exertions on

behalf of ratifying the Constitution were no doubt for

a political purpose and yet worthy of anonymity.

Next, the lower courts diverged from AFPF by

demanding multiple injuries not required by AFPF.

In AFPF, a variety of factors contributed to the

chill on association, including, threats to donors,

threats to itself, and the demonstrated risk that the

state would inadvertently disclose donor information

that it pledged to keep confidential. See id. at 604. But

AFPF did not require all three sources of injury to be

checked off to prove “chill” to associational rights. See

id. at 616–17.

Here, Rio Grande was required to establish two

discrete injuries: one to its donors, and one to itself.3

First, it was required to show that its donors were

threatened. Then it was required to show that it also

had been threatened. But AFPF does not require both

donor and recipient to sustain separate injuries.

Especially where, as here, the injury to Rio Grande is

3 The third source of chill in AFPF, risk of public disclosure, is

automatic in New Mexico as disclosure reports are posted

publicly on the Secretary of State’s website. N.M. Stat. Ann. § 119-32(c); Pet. 7.

6

a classic pocketbook injury redressable in a court of

law. This injury flows from the chill to the donations,

no additional threat to Rio Grande is required.

Under the reasoning below, Hamilton, Madison,

and Jay would have been required to show threats to

themselves, but so would Publius. That was error.

Requiring a two-entity threat analysis to be satisfied

before the associational rights of the underlying

parties can be recognized simply makes no sense. All

that is required is an injury to one party. The Tenth

Circuit’s two-party damage requirement is contrary to

AFPF and unsupported by this Court’s precedent.

Compounding this error, the panel majority and

district court expansively applied the erroneous

“narrow tailoring” interpretation of Gaspee Project v.

Mederos, which replaced the means-end test of AFPF

with an elaborate set of parameters regarding who

would be affected by a disclosure scheme rather than

why they would be affected—essentially substituting

narrow application for narrow tailoring. 13 F.4th 79,

82, 88–9 (1st Cir. 2021).4

Moreover, here, as well as in a growing body of

disclosure cases across circuits, narrow application is

determined through dollar limits. The arbitrary

denominations from early cases become precedent in

later cases and are used to decide whether the

disclosure scheme is sufficiently “narrow.” But the

happenstance of which dollar values appeared in the

4 See Cynthia Fleming Crawford, Narrow Applicability Is Not the

Same As Narrow Tailoring: Applying the First Amendment in

First Choice Women’s Resource Centers v. Platkin, FedSoc Blog

(Feb 21, 2025) (discussing the difference between narrow

applicability and narrow tailoring), https://tinyurl.com/3c8retu8.

7

earliest post-AFPF cases has no bearing on whether

causation is satisfied. Yet mere chronology risks

arbitrarily establishing those first-adjudicated dollar

values as the law of the land. Nothing in AFPF

sanctions this result.

If allowed to stand, this process and the lower

courts’ growing reliance on Gaspee would gut the

donor associational rights recognized in AFPF, while

imposing additional First Amendment injury by

implying an association between a message and a

donor that may not even be accurate. For donors who

support an organization’s general mission, or a

portion of that mission, and who may not police the

full range of the organization’s interests or know who

other donors to the organization are, these

complexities impose an unconstitutional burden on

speech and association.

The First Amendment does not permit

laws that force speakers to retain a

campaign finance attorney, conduct

demographic marketing research, or

seek

declaratory

rulings

before

discussing the most salient political

issues of our day. Prolix laws chill speech

for the same reason that vague laws chill

speech: People of common intelligence

must necessarily guess at the law’s

meaning and differ as to its application.

Citizens United v. Federal Election Comm’n, 558 U.S.

310, 324 (2010) (cleaned up).

This is not the degree of First Amendment

protection envisioned by AFPF and, if allowed to

stand, would gut donor privacy by a decoupling donor

intent and any downstream use of funds.

8

ARGUMENT

I. AMERICANS FOR PROSPERITY FOUNDATION V.

BONTA CONTROLS AND EXACTING SCRUTINY

MUST BE APPLIED TO DONOR DISCLOSURE

AFPF controls this case and establishes the

rigorous standard of review that must be applied to

the New Mexico Campaign Reporting Act demand for

donor disclosure (“disclosure provision”). The

disclosure provision, like the “blanket demand for

Schedule Bs” in AFPF, exposes donors based on

characteristics that do not even require a donor to

know that a particular advertisement is being run.

See 594 U.S. at 611. But unlike in AFPF, there is no

façade of anonymity here because the purpose and

effect of the law is to publicly disclose donor names.

Right off the bat the risk of chill from the law itself is

greater. See id. at 615 (“Our cases have said that

disclosure requirements can chill association even if

there is no disclosure to the general public.” (cleaned

up)). Thus, exacting scrutiny applies—and the result

is the same.

A. AFPF Held that Exacting Scrutiny Is the

Proper

Standard

for

Compelled

Disclosure of Donor Information

AFPF was a facial challenge to a regulation

requiring charities operating in California to register

with the Attorney General’s office and disclose major

donors by filing their IRS Form 990. See id. at 601–

04. The disclosure requirement was not related to any

specific activity, speech, or issue area, but solely to

annual registration renewal. Id. at 602. The case came

before the Court with the contours of the applicable

standard of review unsettled. Id. at 607–08. While the

lower courts claimed to have applied exacting

9

scrutiny, there was disagreement about whether

narrow tailoring was required.

This Court held that, at the least, exacting

scrutiny applies to compelled disclosure requirements

and that narrow tailoring is a necessary element of

that standard.5 See id. at 607–08. Exacting scrutiny

thus lies between strict scrutiny, with its least

restrictive means test, and the “substantial relation”

standard noted in Doe v. Reed, 561 U.S. 186, 196

(2010), to require narrow tailoring, but not least

restrictive means. See AFPF, 594 U.S. at 607–08.

B. AFPF Was Not Limited to Charities,

But Relied Heavily on Political

Advocacy Disclosure Precedent

In AFPF, the precedential bases for applying

exacting scrutiny to donor disclosure were derived

largely from cases protecting political speech and

association, such as NAACP v. Alabama ex rel.

Patterson, because “compelled disclosure of affiliation

with groups engaged in advocacy may constitute as

effective a restraint on freedom of association as other

forms of governmental action.” AFPF, 594 U.S. at 606

(citing 357 U.S. 449, 462 (1958)). The Court also relied

on cases reviewing electoral disclosure regimes but

made clear that “exacting scrutiny is not unique to

electoral disclosure regimes.”6 See id. at 608 (“As we

5 Some justices have suggested that strict scrutiny should apply.

See App. 46a–47a n.3 (Eid, J., dissenting). And as Judge Eid

noted below, in AFPF “a majority of the Court agreed that

exacting scrutiny requires narrow tailoring.” App. 48a n.4 (Eid,

J., dissenting).

6 See Gibson v. Fla. Legislative Investigation Comm., 372 U.S.

539, 557 (1963) (“an adequate foundation for inquiry must be laid

10

explained in NAACP v. Alabama, it is immaterial to

the level of scrutiny whether the beliefs sought to be

advanced by association pertain to political, economic,

religious or cultural matters. Regardless of the type of

association, compelled disclosure requirements are

reviewed under exacting scrutiny.” (cleaned up)). And

the government cannot bypass constitutional

protection by defining labels for new categories of

speech to exclude them from the First Amendment.

Button, 371 U.S. at 429 (“a State cannot foreclose the

exercise of constitutional rights by mere labels”).

Thus, exacting scrutiny applies squarely to disclosure

regimes across the board, including to the political

advocacy regime here.

The exacting scrutiny standard has long been

applied in the campaign-finance context. Indeed, as

AFPF notes, this Court “first enunciated [it] in a

campaign finance case.” 594 U.S. at 608 (citing

Buckley v. Valeo, 424 U.S. 1, 64–68 (1976) (per

curiam)); see Wis. Right to Life, 551 U.S. at 485

(Scalia, J., concurring in part and concurring in

judgment) (describing Buckley as “seminal case”). As

before proceeding in such a manner as will substantially intrude

upon and severely curtail or inhibit constitutionally protected

activities or seriously interfere with similarly protected

associational rights.”); Button, 371 U.S. at 438 (“Broad

prophylactic rules in the area of free expression are suspect.”);

Bates v. Little Rock, 361 U.S. 516, 527 (1960) (“the municipalities

have failed to demonstrate a controlling justification for the

deterrence of free association which compulsory disclosure of the

membership lists would cause”); Sweezy v. State of N.H. by

Wyman, 354 U.S. 234, 245 (1957) (“when the investigative

process tends to impinge upon such highly sensitive areas as

freedom of speech or press, freedom of political association, and

freedom of communication of ideas” compulsory process must be

carefully circumscribed).

11

this Court explained in Buckley, “[t]he strict test

established by NAACP vs. Alabama is necessary

because compelled disclosure has the potential for

substantially infringing the exercise of First

Amendment rights.” 424 U.S. at 66.

C. Narrow Tailoring Requires Causation—

Not Broad Definitions or Circular

Reasoning

Under AFPF exacting scrutiny is rigorous and

protective of First Amendment rights. Nowhere does

AFPF invite the government to seek creative ways to

minimize constitutional protection through capacious

application of statutory terms or bootstrapping

anodyne interests, such as the state’s interest in

enforcing the laws, into a compelling interest to

expose speakers where no other interest has been

demonstrated.

Under AFPF, “exacting scrutiny requires that

there be a substantial relation between the disclosure

requirement

and

a

sufficiently

important

governmental interest, and that the disclosure

requirement be narrowly tailored to the interest it

promotes.” 594 U.S. at 611 (cleaned up). Thus, “even

a ‘legitimate and substantial’ governmental interest

‘cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can be

more narrowly achieved.’” Id. at 609 (quoting Shelton

v. Tucker, 364 U.S. 479, 488 (1960)).

The narrow tailoring element is critical in cases

involving burdens on the First Amendment. See id.

(“Narrow tailoring is crucial where First Amendment

activity is chilled—even if indirectly—‘[b]ecause First

Amendment freedoms need breathing space to

survive.’” (quoting Button, 371 U.S., at 433)). And, as

12

AFPF’s reliance on electoral cases for its description

of narrow tailoring shows, the election context

provides no exemption from narrow tailoring. In

McCutcheon v. Federal Election Commission, for

instance, a plurality of the Court explained that “[i]n

the First Amendment context, fit matters. Even when

the Court is not applying strict scrutiny, we still

require a fit that is not necessarily perfect, but

reasonable; that represents not necessarily the single

best disposition but one whose scope is in proportion

to the interest served, that employs not necessarily

the least restrictive means but a means narrowly

tailored to achieve the desired objective.” 572 U.S.

185, 218 (2014) (cleaned up).

Here, given the fungible nature of money, without

any express earmarking, it would be incorrect to

frame a general donor relationship as causing any

specific political advertising. Without even that basic

relationship between donor and message, any claim

that a donor is attempting to persuade a viewer as to

a particular candidate or ballot initiative is even more

attenuated.

Yet that causal relationship, between donor and

message—even when inaccurate—is exactly what

New Mexico compels the Rio Grande Foundation to

imply by triggering public disclosure when two

potentially unrelated facts happen to exist at the

same time.

Indeed, the Tenth Circuit acknowledged that it

was inferring a relationship between donors and

specific messages. App. 36a. (“[I]t is reasonable to

infer that people who make larger donations to a

political committee, such as RGF, are people who

agree with its point of view and want to support its

13

mission to promote that point of view to New Mexico’s

citizens.”). Neither the court nor New Mexico provided

an explanation for why the state would be interested

in raising the risk of misinforming voters nor how the

voters would benefit from the state dictating which

erroneous inference they should rely on when the

voters could just as easily infer erroneous connections

on their own. And whether New Mexico has chosen to

label an organization as a “political committee” is

constitutionally irrelevant.

The means-end test of AFPF is not satisfied by

spurious associations nor can freedom of association

be protected when not only true associations are

chilled but false connections may be implied by law.

D. AFPF Does Not Require Multi-Level

Injury to Establish Standing Nor

Evidence that the Risk to Donors and

Recipients is the Same

The alleged injury to the Rio Grande Foundation

is loss of donations from donors. App. 62a (“admitting

for purposes of this motion that RGF alleges a fear of

lost donations if its donors’ identities are disclosed”).

This is a classic pocketbook injury that is amenable to

redress and sufficient to establish standing without

any intangible harm.7 This “Court has said that

‘pocketbook’ or ‘wallet’ injury always qualifies, but

that mere ‘ideological’ or ‘psychic’ harm never does.” 8

7 See Evan

Tsen Lee & Josephine Mason Ellis, The Standing

Doctrine’s Dirty Little Secret, 107 Nw. U. L. Rev. 169, 178–79

(2012).

Id. at 179 n. 43 (collecting and comparing cases discussing

wallet injury versus noneconomic injury).

8

14

Rio Grande identified fear of threats to its donors

as the cause of its prospective lost donations. App. 62a

(“some donors may stop contributing to RGF out of

fear of retaliation and harassment”). That chill on

donors is also sufficient to infringe Rio Grande’s First

Amendment association rights. AFPF, 594 U.S. at

618–19 (“The risk of a chilling effect on association is

enough, because First Amendment freedoms need

breathing space to survive.” (cleaned up)). Rio Grande

thus pled two here-and-now injuries.

But neither of these injuries requires harassment

of Rio Grande itself. Nevertheless, the courts below

found a lack of direct threat to Rio Grande to be

material. See App. 64a (“The Secretary, however,

denies that there is a record of any significant

retaliation or harassment of RGF that would

substantiate the fears.”); App. 64a (“RGF had not

made and did not have any plans to make

expenditures on the hot-button issues—labor, the

Second Amendment, the environment, or energy—

that it flagged as raising a risk of retaliation.”); App.

95a–96a (“Even viewing the evidence in RGF’s favor,

this evidence is insufficient to establish a reasonable

probability that the compelled disclosures required by

SB 3 will subject RGF and similar organizations to

threats, harassment, or reprisals from either

Government officials or private parties”).

Transference of donor harassment onto Rio

Grande is not required before it can demonstrate

injury. And there is nothing in AFPF that requires

donors and recipients both to be injured in exactly the

same way. Nor must speakers show that their speech

is “hot button” or controversial to establish injury. At

least in this context, the government cannot have a

15

compelling interest in restricting non-controversial

speech and association, while shielding and allowing

what is deemed “controversial” into the marketplace

of ideas. The First Amendment’s protections do not

turn on this content- and viewpoint-based distinction.

And “any demand for donor information . . . must

overcome heightened First Amendment scrutiny

‘given the “deterrent effect on the exercise of First

Amendment rights” that arises as an “inevitable

result” of the government’s conduct.”’” First Choice

Women’s Res. Centers, Inc. v. Davenport, 146 S. Ct.

1114, 1124 (2026) (quoting AFPF, 594 U.S. at 607

(quoting Buckley, 424 U.S. at 65))).

E. The First Circuit’s Gaspee Opinion

Misapplied AFPF and its Mischief is

Spreading Here

The panel majority and district court both relied

heavily on Gaspee Project v. Mederos, 13 F.4th 79, 82–

3 (1st Cir. 2021). See, e.g., App. 31a; App. 100a–101a.

The mischief done by the erroneous application of

narrow tailoring in Gaspee is spreading across circuits

and merits this Court’s intervention.

Gaspee was decided shortly after the Court decided

AFPF, and it dealt with disclosure of funding sources

for independent expenditures and electioneering

communications. 13 F.4th at 82–83. Gaspee nominally

embraced AFPF but misapplied the narrow tailoring

element. See id. at 85.

Like the annual blanket demand for disclosure in

AFPF, the act in Gaspee required filing a report with

the State Board of Elections disclosing all

organization donors over $1,000. It also imposed an

on-communication disclaimer identifying the five

16

largest donors from the preceding year.9 Id. at 83. But

as the not-for-profit plaintiffs in Gaspee made clear,

their interest was in issue advocacy, not candidate

support. See id. at 82, 85.

Gaspee allowed First Amendment protection of

core political speech to be circumvented for messages

delivered during the time period the speech was likely

to be most salient, distinguishing it from speech that

takes place outside an election context, 13 F.4th at 89.

But neither the First Amendment nor AFPF includes

such a distinction.

Gaspee also found no relevant distinction between

issue advocacy versus candidate-specific advocacy,

despite relying on Buckley and Citizens United, which

acknowledge a government anti-corruption interest in

who pays for messaging supporting or opposing a

specific candidate but make no such argument

regarding issue advocacy. 13 F.4th at 85–86. Buckley

explained the rationale for disclosure of donor

information for specific candidates to avoid corruption

or the appearance thereof. 424 U.S. at 26. This

rationale does not apply to contributions to support an

idea or to discuss an issue because an idea cannot be

corrupted. See First Nat. Bank of Boston v. Bellotti,

435 U.S. 765, 790 (1978) (“The risk of corruption

perceived in cases involving candidate elections,

simply is not present in a popular vote on a public

issue.” (cleaned up)). Instead of relying on a purposebased rationale, Gaspee resorted to a plethora of

characteristics unrelated to the only relevant

9 Donors could opt out of the disclosure requirement by electing

that donations not be used for funding of independent

expenditures or electioneering communications. Id. at 82.

17

criterion: whether there is a means-end relationship

between the government’s goal and the First

Amendment burden imposed.

The asserted government interest in Gaspee was in

an “informed electorate” which it held to be

“sufficiently important to support reasonable

disclosure and disclaimer regulations.” 13 F.4th at 86.

But under AFPF it is not enough to invoke tautologies

such as demanding information for the purpose of

being informed.10 Likewise here, claiming that the

state has an interest in disclosure because it has an

interest in promoting transparency and thus its

interest in disclosures is “self-evident,” App. 33a, is

just talking in circles. Something more is needed.

Moreover, while the notion of an “informed

electorate” sounds appealing, not all information is

created equal. Misleading or irrelevant information,

for example, diminishes an electorate’s ability to

absorb meaningful information. What is the

government interest in confusing the public by

dousing it in inaccuracies?

Rather than evaluating the purpose to which the

demanded information would be put, Gaspee focuses

on time and size limitations—which affect the pool of

speakers and messages subject to the law but fail to

explain why the law should be applied to them at all.

13 F.4th at 88–9. Much like a law that applies only to

AFPF did not address disclaimers—nor any other form of

compelled speech. Buckley, likewise, involved disclosure but not

disclaimers. Citizens United, which addressed mandatory

disclaimers, was decided under the pre-AFPF annunciation of

exacting scrutiny and thus required only “a substantial relation

between the disclosure requirement and a sufficiently important

governmental interest.” 558 U.S. at 366–67 (cleaned up).

10

18

redheads or people with dogs without any explanation

of how that narrow application creates the desired

end, this type of analysis substitutes narrow

application for narrow tailoring. But infringing the

rights of a small group is still infringement.

Moreover, Gaspee bypasses any analysis of

whether the donations in question were intended to

support the particular communication at issue. Thus,

unlike laws that include “for the purpose of” or

“designated to support” language,11 simply listing the

five largest donors to an organization for the

preceding year lacks the necessary link between the

donor information and the communication on which a

disclaimer is made.

Having “tailored” the law to nonrelevant

characteristics, Gaspee goes one step further—

blessing, rather than condemning as it should, the

statutory demand that donors silence themselves by

opting out of constitutionally protected messaging to

avoid being outed by the organizations to which they

donate. 13 F.4th at 89. Donors could avoid exposure

under the law by either limiting the size of their

donations or by opting out of allowing their donations

to be used for the restricted forms of speech. Id.

Reliance

on

self-censorship

to

excuse

an

unconstitutional law is a dangerous step that creates

a moral hazard, allowing constitutional protections to

be bypassed by shifting the burden to the speaker.

Nothing in AFPF endorses that approach.

11 See e.g., Van Hollen v. Fed. Election Comm’n, 811 F.3d 486,

492 (D.C. Cir. 2016) (discussing “purpose requirement” in

context of independent expenditures under the Federal Election

Campaign Act).

19

This Court has not yet had to grapple with whether

the First Amendment allows compelled disclosure of

donors with no discernable connection to a particular

communication, such as an earmarked contribution or

contributing to the PAC. Gaspee provides no guidance

on how this case or any such case should be decided.

II. THE COURT SHOULD GRANT CERTIORARI TO STOP

THE INCREASING MISAPPLICATION OF AFPF V.

BONTA

The Court should grant certiorari because,

although AFPF is relatively recent, misapplication of

exacting scrutiny has already begun.

First, both the district court and panel majority

replicated the errors of the Gaspee court. For example,

the lower courts made the Gaspee scoping error by

relying on characteristics that limit the pool of people

to whom the law applies but without analyzing

whether the distinction is meaningful: praising

“limitations placed on the CRA’s disclosure

requirements,” such as “certain monetary, temporal,

and geographic ranges” that are not required to be

disclosed. App. 34a. But why? What is the relevance

of these characteristics? As in Gaspee, the

characteristics may narrow application of the law

without providing narrow tailoring.

Second, the courts below shifted the burden of

avoiding violative speech onto the speaker, making

the speaker responsible for censoring herself to avoid

public disclosure. See, e.g., App. 15a. (“Notably,

certain contributors may opt-out of these

requirements if they request ‘in writing’ that their

‘contribution not be used to fund independent or

coordinated expenditures or to make contributions to

a candidate, campaign committee or political

20

committee.’” (quoting N.M. Stat. Ann. § 1-1927.3(D)(2))). Constitutional infringement cannot be

cured by demanding the victim simply stop exercising

the infringed rights. The proper inquiry does not turn

on the severity of the burden on First Amendment

rights but rather whether the government “has

burdened those rights at all.” First Choice Women’s

Res. Centers, 146 S. Ct. at 1129. If it were “otherwise,

the government could channel the ability of disfavored

groups to associate through narrow and statepreferred forms” and “achieve exactly what the First

Amendment forbids[.]” Id. at 1130.

Finally, it is unclear why the speech and

association rights of shy donors are less valuable than

the rights of gregarious donors—who may have an

additional interest in promoting their contributions

and thus disclose themselves voluntarily. Under

AFPF an inclination for publicity is of no

constitutional import. See AFPF, 594 U.S. at 616 (“It

is irrelevant, moreover, that some donors might not

mind—or might even prefer—the disclosure of their

identities to the State.”). Indeed, the closer the

speaker is to the heart of the debate, the more

potential his speech has to be useful to his neighbors

while he simultaneously risks more from his identity

being disclosed to the people he must live with every

day. The remote speaker who benefits from publicity

has little to fear.

This case is not alone. The Gaspee framework

recently made an appearance in Americans for

Prosperity v. Meyer, which held that donor-disclosure

mandates satisfy exacting scrutiny. No. CV-23-00470,

2024 WL 1195467, at *8, 14 (D. Ariz. Mar. 20, 2024)

appeal pending. See also Dinner Table Action v.

21

Schneider, 2025 WL 1939946, at *5–6 (D. Me. July 15,

2025) (relying on Gaspee to guide its application of

narrow tailoring on two points: 1) comparing the

$1,000 expenditure limit from Gaspee to the $250

expenditure limit in the Maine law; 2) comparing the

Gaspee opt-out provision to the absence of such an optout provision in the Maine law.).

The risk, of course, is that these permutations will

spread, turning exacting scrutiny into the test applied

to attenuated government interests with application

schemes that are so prolix that they must be

“exacting.” This is not what the means-ends test from

AFPF stands for and such application will end up

undermining associational freedom rather than

protecting it.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

Respectfully submitted,

ILYA SHAPIRO

TREVOR BURRUS

MANHATTAN

INSTITUTE

52 Vanderbilt Ave

New York, NY 20017

(212) 599-7000

ishapiro@manhattan.

institute

June 3, 2026

CYNTHIA FLEMING

CRAWFORD

Counsel of Record

CASEY MATTOX

MICHAEL PEPSON

AMERICANS FOR

PROSPERITY

FOUNDATION

4201 Wilson Blvd.

Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org