Freedom of Speech: How It Affects Charitable Giving
Recently, the U.S. elevated its latest Supreme Court justice to the highest court in the land. While there has been a lot of debate about the rightward tilt of the Supreme Court and what that will mean for many aspects of our society, there is also a lot at stake for nonprofits and charitable giving.
Across the country, there have been laws and regulations meant to curtail free speech, affecting nonprofit organizations, businesses and institutions. For instance, the Peachtree-Pine homeless shelter in Atlanta was targeted by the city. Before its closing, the group housed on any given night between 500 and 700 people, including children; but the city wanted to build a fire and police station on their site, and it sought its closure, which finally happened in August 2017, after years of haggling back and forth.
One of the ways it targeted the organization was by attempting to make public the names of anonymous donors who supported the cause, which is a violation of freedom of speech laws.
Free Speech at Universities and By Panhandlers Affect Nonprofits
Free speech has also been attacked on college campuses, as colleges and universities have established rules for administration, faculty and students that limit free speech. The organization, Foundation for Individual Rights in Education, or FIRE, which advocates for free speech on campuses, has reported, "… too many universities––in policy and in practice––censor and punish students' and faculty members' expressive activity. One way that universities do so is through the use of speech codes: policies prohibiting speech that, outside the bounds of campus, would be protected by the First Amendment."
Additionally, students and faculty have also organized,to stifle free speech and to shut down any expressed thoughts that they find to be offensive. Social media and the Internet have allowed them the ability to organize and amplify their anti-speech message quickly, and, in an ironic turn, students have turned to violence to shut down protected free speech.
According to FIRE's database, there have been 379 attempts to disinvite speakers to university campuses because a segment of the college or university community does not agree with an invited speaker's thoughts or ideas.
Solicitations by nonprofits, which is a First Amendment issue, have also been the target of overzealous legislators. For instance, laws have been enacted to curtail panhandling by homeless people, which not only silences the freedom of speech of panhandlers but cities that have ordinances about “aggressive solicitations” have also opened a Pandora's box for charities. For instance, does aggressive solicitations apply to nonprofits that send out more than one solicitation letter? Some legislatures believe it does, and this is where it gets even dicier for charitable organizations.
IRS and Nonprofit Free Speech
Aggressive solicitation regulations, along with transparency rules directly impact nonprofits and their right to free speech, including in their requests for contributions. In 2013, the Internal Revenue Service (IRS) proposed rule changes, which it enacted, for some organizations designated as nonprofits.
To force groups to be more transparent and fight corruption in political campaigns, the IRS proposed to force groups to make public the names of all of their donors by reporting them to the IRS. However, donors have a constitutional right, based on free speech, to support any cause they choose, without fear of intimidation, and forcing any nonprofit to publish donor names goes against those protections.
According to the ACLU, which defended nonprofits at the time the rule change was about to go into effect, the IRS rules, "… would now also count as partisan political activity a vast amount of public policy advocacy that has absolutely nothing to do with partisan politicking.” In July, 501(c)(4) groups, which are social welfare organizations, no longer had to comply with reporting donor names.
However, nonprofits are not out of the woods yet as courts weigh the merits of "aggressive solicitation" laws, which affect not only panhandlers who are homeless and in need of money, but also nonprofit organizations that make a solicitation (or multiple solicitations) that people can consider hostile.
Why is Freedom of Speech Vital?
Americans understand that freedom of speech is a right, but an element that seems to be missing is the reason why we must preserve freedom of speech. We must, as a society, understand why our First Amendment rights are vital to our democracy. In 1787 and 1788, Alexander Hamilton, James Madison and John Jay published––anonymously––The Federalist Papers, which were 85 essays in newspapers in New York. The pieces used the pseudonym "Publius" because the thinking was that they needed the readers to think of the ideas that formed the intent for the U.S. Constitution, as opposed to identities of the authors. In other words, they wanted to foster public policy debate on the issues and not get into partisan wrangling.
As it relates to nonprofits when we protect free speech, including university speakers and the right of donors to support, anonymously, whatever cause they would like, and we push against legislators who want to stifle speech with unconstitutional "aggressive solicitation" or transparency laws and regulations, we are helping to preserve the intent of the founders of our nation.
Further, free speech is a human right that serves to foster debate, discussion and exchange of ideas, even if there are differences. Historically speaking, it is because of free speech that many rights have been conferred on marginalized and oppressed groups. Without protest, without debate and policy discussions from opposing sides, we would not have women's suffrage or The Civil Rights Act of 1964.
With the elevation of U.S. Supreme Court Justice Brett M. Kavanagh, who has claimed himself to be an originalist of the Constitution, free speech is sure to be a topic that the court will again address, and it could affect how nonprofits do business.
Paul D'Alessandro, JD, CFRE, is founder and chairman of D'Alessandro, Inc., a fundraising and strategic management consulting company. He is also a lawyer and a tax law specialist for nonprofits.