MEMORANDUM FOR: FSC MEMBERS AND FRIENDS FROM: DICK DINGMAN SUBJECT: Government Bans Use of Certain Words by Nonprofits: Living on The Slippery Slope DATE: January 25, 2006 WARNING! — IF YOU ENGAGE IN DIRECT MAIL POLICY ISSUES, YOUR FREE SPEECH IS AT RISK. HELP NEEDED NOW ON SUPREME COURT LITIGATION. BACKGROUND Thanks to the financial support received from only a very few, and using some of our small reserve, FSDEF was able to file recently an amicus curiae brief in support of the petition for rehearing of United Seniors Association (“USA”) in the Fourth Circuit. You may recall our earlier e-mail to you, and our description of how the Fourth Circuit panel denied USA’s petition appealing the $554,196 fine imposed on it by the Social Security Administration (“SSA”) for allegedly violating section 1140 of the Social Security Act by using the words "Social Security" on its carrier envelope. Members of the nonprofit community were justifiably concerned with SSA’s apparently selective and arbitrary enforcement of the statute, and its interpretation of the statute in a way that should alert everyone to the danger of giving a government agency such broad enforcement power. Nevertheless, USA filed a compelling petition for rehearing, and FSDEF (as well as two other “friends of the court”) filed separate amicus curiae briefs asking the Fourth Circuit to grant the petition. FSDEF’s brief addressed, very persuasively we believe, what it considered two very serious defects in the Fourth Circuit’s original decision denying USA’s petition for review. Unfortunately, the Fourth Circuit has denied USA’ s petition for rehearing. This is not unusual, as most petitions for rehearing or for rehearing en banc are not granted. It was disappointing, of course, but such developments will not deter FSDEF in its continuing effort to help protect free speech in the United States. The last avenue of recourse for USA in this matter would be a petition for certiorari to the U.S. Supreme Court. USA has filed such a petition. We feel it is essential that FSDEF file an amicus brief supporting the granting of certiorari. WHY SHOULD YOU CARE? In McCain-Feingold, the Congress prohibited certain radio and television issue advocacy by nonprofit organizations in the period before elections. But the new limitations on Speech and Press rights are not limited to radio and television. Congress has demonstrated that it wants to regulate the direct mail of nonprofit organizations. One of the first areas that it focused on is Social Security, but it will not end there. If you engage in direct mail fundraising on public policy issues, your freedom to mail packages using state of the art direct mail techniques designed to increase the likelihood that the package will be opened and read by the recipient, is seriously threatened. It sounds like 1984, but the federal Government already has declared certain words to be “forbidden” words which you may not use. For instance, it is currently against the law to use the terms: • “Death Benefit Update” • “Federal Benefit Information” • “Funeral Expenses” • “Final supplemental Plans” • “Medicare” • “Medicaid” and • “Social Security” in a way that government bureaucrats could even THINK that a recipient might confuse the mail as coming from a government agency. It doesn’t matter if no recipient has ever testified that they were, in fact, confused. It doesn’t matter if the true identity of the sender is very clear on the carrier envelope and inside the package. It doesn’t matter if a reasonable person can easily see upon reading the material that it did NOT come from a government agency. It only matters that a government official has determined that someone MIGHT be confused about the origin of the letter. http://www.washingtonpost.com/wp-dyn/content/article/2005/11/07/AR2005110701452.html It doesn’t even matter if your message is “Social Security Bankrupt: Congress at Fault.” Under the current law, the government can still fine the nonprofit which makes this statement, on the theory that seniors may be misled to thinking the letter came from the government. AMAZING! The truth is that Members of Congress don’t like to get pressure from constituents (especially seniors) — and direct mail pointing out the strengths or weaknesses of legislative issues results in constituent communications to Members of Congress. Therefore, it is in their self-interest to find ways to curtail constituent communications. Limiting the use of trigger words on a variety of issues is one way to reduce the letters to Congress. If your organization works in the public policy arena, it is your mission to get your members to express their opinions to members of Congress, either directly or through involvement devices you send. In order to do this, you send mail packages which explain legislative issues. In order to assure recipient involvement, you must use selected key words and phrases on your carrier envelope and letter which you know will pique the interest of the reader. That’s how you get the mail opened and read. It is not deceptive. It is a legitimate direct mail technique, somewhat similar to retail stores advertising sales in order to get you into their store. If the USA case is allowed to stand, you can be sure the list of “forbidden words” will continue to grow. It is not far fetched to envision the banning of such words as: • “tax increase” • “gun” • “health threat” • “terrorism” • “illegal immigration” and many more. The government has a legitimate interest in communicating with citizens on all these issues and, following the USA case precedent, government officials can easily claim that more words need to be forbidden from use by direct mailers in order not to confuse the recipient into thinking the direct mailer was a government agency. ACTION NEEDED NOW! Your fundraising abilities may be in serious jeopardy. USA filed a petition for certiorari to the U.S. Supreme Court on January 23, 2006. That means that our amicus brief will be due on or before February 22, 2006. It is in the interest of the entire direct mail industry that this case be aggressively supported by a host of organizations, both nonprofit and commercial. FSDEF must raise at least $12,500 to cover the cost of filing another amicus brief on this issue — including the expensive printing required of these Supreme Court briefs. We don’t have the funds. Therefore, as a matter of your self-preservation, I am asking you to send a check to FSDEF. We would hope that other seniors groups would contribute $2,500. Other large groups should commit $1,000. Smaller groups can help with $500. FSDEF is trying to protect your future free speech rights in the process of fundraising and issue advocacy. We must get financial commitments by February 1st in order to manage the legal work in a timely fashion. If we have the commitments, we will proceed, even if the checks arrive a bit later. First, please e-mail your commitment to . Then, checks should be made payable to Free Speech Defense and Education Fund. All donations are tax deductible. It is critical that you act NOW. You cannot sit back and expect that others will meet the need. Your free speech rights are at stake. If you don’t act, you lose!