FOR: FSC MEMBERS AND FRIENDS
SUBJECT: State Fishing Expedition
This is to alert you to a recent fishing expedition initiated by the state government of a southern state.
An individual sent a letter of complaint to the state government, saying that an elderly relative had received several fund raising letters from various organizations, and that he felt the rhetoric in some of these letters warranted an investigation by the state to determine if they contained misleading or fraudulent claims. He specifically cited several fund raising letters, all from conservative organizations.
As a result of this single complaint letter, state government is investigating the matter. At least three of the nonprofits cited have received subpoenas for virtually all their records for the past several years, including their donor lists. They are also ordered to appear in person in that southern state to provide sworn testimony as part of the investigation.
None of the nonprofits has been accused of violating any law. This is strictly a fishing expedition. If one complies with these demands, they run the risk of opening a Pandora's box of further inquiries. Compliance is expensive to the nonprofit, particularly where the investigation is open-ended. The states tactics give credence to the idea that state officials can and will objectively interpret direct mail rhetoric to determine which statements are misleading and which are not.
In deciding whether to fight such demands from this state, one has to decide whether compliance will quickly put the matter to rest, and, therefore, be worth the expense, or would set a dangerous precedent with respect to unreasonable and constitutionally questionable demands. For instance, under what circumstances can a state demand delivery of ones donor list? The U. S. Supreme Court has twice ruled in favor of privacy for donors lists. Furthermore, if one state can successfully make such demands, will not many more states be close behind with similar demands?
If you have received a similar inquiry, I would be interested in knowing about it. It would be of particular interest to know if a similar investigation would be, or has been, initiated if the complaints were about rhetoric contained in letters from liberal nonprofits. Is there evidence of even-handedness, or political bias?
In order to successfully oppose unconstitutional curbs on free speech, we must share information so that effective strategies can be developed to preserve free speech. Please advise if you have other examples of questionable or clearly improper regulatory actions by state officials.