Donor Privacy: Santa Fe Litigation Update

Last week on January 29, after 18 months of waiting for a decision, we lost our case (at least temporarily).

As you recall, the Rio Grande Foundation was engaged with the City of Santa Fe in litigation over donor privacy, stemming from Mayor Javier Gonzales’ push for the now-infamous soda tax.

We lost the first round of litigation at District Court because we could not demonstrate actual threats of reprisals against the Foundation and our donors. That’s because the Rio Grande Foundation was never threatened. What we alleged is that the law would chill our speech because we were reasonably afraid of reprisals against our donors.

Typically, the threats come after the disclosure, and by then the horse has left the proverbial barn. Under the First Amendment, you don’t have to be threatened before your speech is chilled. A reasonable fear is generally sufficient. Indeed, we did show that similar groups have suffered similar threats, which is what the Tenth Circuit has required in other cases. The judge attempts to characterize her decision as being in accordance with Tenth Circuit precedent, but it’s clear she’s worried about it.

Our trial judge in this case never held oral argument, then sat on any decision for over a year-and-a-half. Neither the Foundation nor our legal counsel ever even met her, which is extremely uncommon in a case that reaches a decision on the merits.

No need to fear: the Rio Grande Foundation is moving forward in appealing the decision to a higher court. We’re not giving up the fight for donor privacy.

So, onward to the Tenth Circuit, where we ought to have better odds. We will keep you updated on our progress!

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