Free Speech Leadership Conference Set
The Freedom Forum, cosponsor of this year's leadership conference, will host the meeting at its rooftop conference center. Freedom Forum president Charles Overby said that he was pleased with the diversity of groups attending the conference last year and with his ability to help groups, "who have concerns about preserving the freedom to petition government for redress of grievances, the right of free speech, and the right of assembly." Attendance is by invitation only, but leaders in the nonprofit community are encouraged to request invitations. Admission is free. At the conference, speakers will address the federal & state legislative and regulatory issues of vital concern to the nonprofit community.
Howard Segermark, Legislative Director of the FSC, cited the Coalition's concern about one issue he's working on. "The Lobby Disclosure Bill, now in front of a Congressional Conference Committee, would massively hike nonprofits' costs, especially the costs of passing their members' views on to public officials." Segermark added that if the bill becomes law, "it will stifle the flow of information from the grass roots that Congress needs to make good decisions." Over-reaction to the United Way scandal and some fly-by-night operators have led many on Capitol Hill and in state legislatures across the country to consider restrictions on the First Amendment rights of nonprofits. Segermark said, "While some believe there is justification for changes, new regulations may cause greater harm to nonprofit organizations who wish to raise funds and talk about issues of public policy."
Harriet Trudell, a lobbyist for the Feminist Majority and a Coalition member, said the diversity will be useful and positive. "When Right to Life gets to work with the Feminist Majority, and where Gun Owners of America works with the Coalition to Stop Gun Violence, you are going to get new insights along with new allies," Trudell said.
Steve Arter, a representative of the National Association of State Charitable Officers, will address the merits of and the need for state policies which more strictly regulate nonprofit organizations. Other speakers will include Dr. Thomas DiLorenzo, author of Unhealthy Charities, and attorney James Bopp, who has successfully fought cases against overly-restrictive election laws. In addition, Editors Henry Suhrke of Philanthropy Monthly and John McIlquham of NonProfit Times will join Eleanor Smeal, President of Feminist Majority, David Keene, Chairman of the American Conservative Union, attorney Mack Canter, and Ralph Reed, Executive Director of the Christian Coalition as panelists at the conference. FSC Legal Co-Counsel William Olson and Mark Weinberg will provide updates on federal agency action.
Other invited speakers include Ira Glasser of the ACLU and former Associate Justice Harry Blackmun. Last year's conference coverage appeared on C-SPAN, which is expected to broadcast this year's proceedings as well.
Leaders in the nonprofit community are
encouraged to request invitations by calling (202)
FSC to Submit Amicus Brief For Second Circuit To
Consider Regarding Legality of Professional Solicitor
The suit was brought by the National Awareness Foundation (NAF) and the Child Protection Program Foundation (CPPF) as well as by several individual professional solicitors.
NAF and CPPF are nonprofit organizations that would be subject to the statute as charities; they use professional solicitors in their fundraising efforts. Individual professional solicitors are required by the statute to register and pay an $80 annual fee. The federal trial court determined that the statute does not violate the First Amendment to the Constitution by imposing such a fee, despite the general rule against taxing free speech activities, because the costs of administering the statute, including enforcing it, are reasonably connected to the revenues produced by the fees charged to professional solicitors. The court also rejected the claim that imposing the fee violates the Equal Protection Clause of the Fourteenth Amendment.
FSC supports the NAF/CPPF position that
the costs of enforcing such a statute should not be included
in determining whether the fees charged as a precondition to
the exercise of free speech rights are designed to defray
the costs of administering the statute. If government
agencies are allowed to include their enforcement costs in
the fees charged to registrants, the price tag on free
speech activity would be exorbitant and would amount to
government censorship. FSC's amicus curiae brief also
stresses the significant burden that charitable solicitation
statutes are imposing on nonprofit advocacy organizations
throughout the United States, and explains to the court the
registration reporting requirements imposed by states and
Kentucky Law Called an Impermissible Prior
For example, the Commonwealth of Kentucky enacted a "point-of-solicitation" disclosure requirement to add to its charitable solicitation law, but enforcement of the new law was enjoined even before Kentucky had a chance to enforce the new provision. The challenged statute would make it a deceptive practice (and a crime) to state in a solicitation that a charity will be the recipient of funds if the charity's professional solicitor is allowed to receive as compensation more than 50 percent of the solicited funds. The charity could avail itself of a "defense" against enforcement by adequately disclosing (in the solicitation) the net percentage of funds retained by the charity. This attempt at forced disclosure is obviously premised upon a continuation of the assumption (rejected by the U.S. Supreme Court in more than one case) made by state regulators in the past that fundraising solicitations have no programmatic value and that there is some kind of connection between fraudulent conduct by charities and fundraising expenses.
The Kentucky State Police Professional
Association (KSPPA), a nonprofit organization subject to
Kentucky's charitable solicitation statute which employs
professional solicitors, represented by Errol Copilevitz,
Esquire, filed suit against the Kentucky Attorney General
and immediately obtained a Temporary Restraining Order
against enforcement of the statute. KSPPA has now filed a
motion for summary judgment, asking that enforcement of the
statute be permanently enjoined as content-based regulation
of protected First Amendment speech which does not promote a
compelling state interest and, even if did, which is not the
least restrictive means of furthering such an interest.
Telemarketing Fraud Bill Signed Into Law
Nonprofits who engage in telemarketing activities did not escape lawmakers' attention. The final legislation was crafted to allow the FTC, which has no jurisdiction over nonprofit organizations, to separate the commercial telemarketing arm of an organization from the nonprofit body and to regulate the telemarketers with the new FTC rules.
In addition to the enhanced enforcement authority given to state attorneys general, the law restricts the hours during which telemarketing firms can make unsolicited calls and prohibits certain telemarketing practices. It also requires disclosure to the consumer that the call is being made to sell goods or services, and their nature and price. Further, the law opens the door for private parties with more than $50,000 in damages to sue telemarketers directly.
Additional telemarketing restrictions contained in the Crime Bill, were also signed into law on September 13th, after its struggle through Congress.
While the legislation in both bills was
passed as consumer protection, questions remain. Chief among
those concerns is whether the broad authority granted to
federal and state agencies under new laws will lead to abuse
by enforcement officials. Whether First Amendment rights of
the nonprofit community will erode under the new regulations
also remains unclear.
Social Security Administrative Reform Act of 1994
Under this new law, an advocacy organization arguing that the nation's social security system is headed toward insolvency, which uses the "teaser" on its carrier envelope "IMPORTANT INFORMATION REGARDING FUTURE SSA BENEFITS" could be found in violation of the law. The law bans use of (or "any colorable imitation" of) the words "Administration," Department of Health and Human Services," "Health and Human Services," Supplemental Security Income Program," "Medicaid," "Department of the Treasury," or the name of any service, bureau, office, or subdivision of the Department of the Treasury; bans use of the letters "SSA," "HCFA," "DHHS," "HHS," or "SSI"; and bans use of any abbreviations, initials, symbols, or emblems of any service, bureau, office, or subdivision of the Department of the Treasury. Even "the design of any envelope or stationery" could constitute a violation.
The Act makes it easier for the
government to prove violations of the law in court. It
instructs courts to ignore the presence of a disclaimer "of
affiliation with the United States Government or any
particular agency or instrumentality thereof." The act also
removed the requirement that the Department of Health and
Human Services obtain a formal declination from the
Department of Justice before filing a civil suit. Civil
penalties are up to $5,000 per violation ($25,000 for
broadcast/telecast violations). Criminal penalties are up to
$10,000 per violation ($50,000 for broadcast/telecast
violations) or up to one year in jail. (Thus, it would
appear that use of a bulk mail permit in making improper
solicitations could result in multiple life sentences.)
Please call FSC for a packet of information on this new