Defending Free Speech: ALEC’s Response to Proposed Amicus Brief Disclosure Rules

In the American Legislative Exchange Council’s (ALEC’s) most recent efforts to protect free speech and civic participation, we recently submitted a federal public comment opposing the proposed amendments to Federal Rule of Appellate Procedure (FRAP) 29. These amendments, proposed by the Judicial Conference of the United States, would impose new disclosure requirements on organizations filing amicus curiae briefs in federal court. These changes threaten to chill public participation in the judicial process and the rights of free speech and association protected by the First Amendment.

The proposed amendments to FRAP 29 would expand disclosure requirements under sections 29(b) and (e), mandating organizations who file amicus briefs to publicly disclose their financial contributors. This requirement raises serious constitutional concerns. Forcing organizations to disclose their donors can expose individuals and groups to harassment or retaliation, discouraging them from engaging in legal advocacy.

The Supreme Court reaffirmed these concerns in Americans for Prosperity Foundation v. Bonta (2021), striking down a similar disclosure mandate. Further, drafters of the amendments have not provided a compelling government interest—a required constitutional standard—to justify such an intrusive disclosure mandate.

Amicus briefs play a crucial role in informing courts about the broader legal and policy implications of cases. The proposed disclosure rules would deter organizations and individuals from submitting these important contributions, silencing voices that might otherwise offer valuable insights. Additionally, unlike public comments on regulatory proposals, no law requires courts to review, incorporate, or even read amicus briefs; they are optional resources for courts to utilize, making disclosure calls of amicus briefs supporters feeble.

The Judicial Conference should withdraw these amendments. By imposing unnecessary and burdensome disclosure requirements, these rules threaten to undermine public participation in the judicial system. Transparency in government should be a priority for those seeking to increase accountability and fairness—not the erosion of individuals’ constitutionally protected rights.

At ALEC, we will continue to defend free speech, free association, and the right of organizations to advocate without fear of retribution. If these amendments move forward, they will set a dangerous precedent.

Donor privacy is an important issue for ALEC’s Center to Protect Free Speech. In 2016, ALEC approved the Resolution in Support of Nonprofit Donor Privacy, which opposes efforts to expand the scope and application of donor disclosure requirements for 501(c)(3) nonprofit organizations.

For more of ALEC’s policy solutions on free speech, check out our publication, Essential Policy Solutions for 2025.