ATA Appeals District Court Decision in Giani Case
The Free Speech Defense & Education Fund, Inc. (FSDEF) and 26 other nonprofits and companies filed an Amicus Curiae brief which argued that the Utah Act is unconstitutional &emdash; violating the First Amendment, due process of law guaranteed by the 14th Amendment, and the Commerce Clause. After FSDEF filed its amicus brief, 16 state attorneys general, two secretaries of state, and one county attorney sent a joint Amici Curiae Memorandum in defense of the statute.
On August 24, 1998, the District Court entered an order granting Utah's motion for summary judgment. The District Court's decision characterized the Utah statute as narrowly written, and serving a substantial government interest. Philanthropy Monthly described the decision as a "frontal blow" to the First Amendment. ATA filed its appeal to the U.S. Court of Appeals for the Tenth Circuit on September 21, 1998.
Mark Fitzgibbons, Esquire, attorney for ATA, notes that the District Court's decision should be vulnerable on appeal. First, the decision did not address long-standing Supreme Court cases that prohibit governmental licenses for First Amendment activity without regard to time/place/manner of the activity. The decision did not address the Supreme Court decision in Quill and other key Commerce Clause cases. Additionally, the decision did not discuss Utah's failure to present evidence regarding the need for its Charitable Solicitations Act (above and beyond existing fraud law). Finally, the decision contained factual errors.
Mr. Fitzgibbons believes that the Tenth Circuit's decision in this case is likely to be reviewed eventually by the U.S. Supreme Court, because the case will greatly affect future discussions of public policy issues in America. He anticipates that the Court will recognize that this case is one of the most important First Amendment cases in a long time, as Utah's statute, and similar statutes by other states, are having a significant impact on the right of Americans to receive public policy information &emdash; core political speech &emdash; from nonprofits. The states have continued to grow more and more bold by adding more and more conditions each year to nonprofit communications. Mr. Fitzgibbons observes that one fearful consequence (if ATA eventually were to lose this case) would
be the further encouragement of additional bureaucratic burdens on nonprofit communications. Certainly, the Amici Curiae Memorandum by the state attorneys general suggests wide governmental interest in the further expansion of state bureaucratic burdens. By contrast, a win by ATA might chill state regulators' aggression against Constitutionally-protected expression.
FSDEF, joined by dozens of other
nonprofit organizations, is currently planning to file an
amicus brief with the Court of Appeals. Mr. Fitzgibbons
observed that it is important for the appeals court to see
the nonprofit community's interest in this case &emdash; for
the appeals court to be aware that the resolution of the
Giani case will affect every nonprofit that communicates
through the mail. Nonprofits need to be aware that the final
decision in this case could be critical to their survival,
and that, unless the First Amendment rights of nonprofits
are vindicated, they can expect to be subjected to further
restrictions on their right to communicate with Americans.
If states are not stopped from requiring licenses in the
first place, they will continue to make it more difficult
and more expensive for nonprofits to comply with their
registration laws. Nonprofits and fundraisers are strongly
encouraged to participate in any FSDEF amicus brief to the
court of appeals.
Senate Silences Congressional Effort To Censor Issue
The McCain-Feingold bill was the Senate version of the Shays-Meehan bill which passed the House in August, as discussed in the August 1998 FREE SPEECH. This bill, if enacted, would have prohibited incorporated nonprofits from broadcasting issue advocacy which reports the stance of a clearly-identified federal candidate on any or every issue unless certain conditions were met.
After the September 10 vote, Sen. McCain (R-AZ) stated that he had abandoned his efforts to pass the bill during this session of Congress. He noted the difficulty of raising public pressure on Republican senators to pass the bill: "Everybody's diverted by the President's problems. All the oxygen has been sucked out of the room by this firestorm." Nevertheless, Sen. Feingold (D-WI) stated that he would continue to offer the bill as an amendment to appropriations acts.
(FSC takes no position with regard to
campaign reform legislation except where it restricts
advocacy organizations' exercise of their Constitutional
Update on United Cancer Council Case
Bill Offers Judicial Review of FASB Accounting
This bill is of interest to FSC members
as they consider methods of challenging the American
Institute of Certified Public Accountants' ("AICPA")
Statement of Position ("SOP") 98-2. Like FASB's accounting
principles, the AICPA accounting principles and standards
enjoy the force of law, without any defined process for
receiving judicial review. If HR 3165 were to serve as the
model for a bill ensuring public access and judicial review
of the AICPA's process for developing accounting principles
and standards, such a bill &emdash; if enacted &emdash;
could serve to check improper pressure on the AICPA from
pressure groups such as the National Association of
Attorneys General ("NAAG") and the National Association of
State Charitable Officers ("NASCO"). Public exposure and
judicial accountability could help to prevent such "indirect
government regulation" and help to prevent future
FSDEF Selects Two New Board Members
Voting Rights Institute Seeks to Overturn First
Amendment Protection of Political Speech
Appeals Court Finds City Violated Nonprofits
First Amendment Rights
In response, Citizen Action sued the city, without conducting any door-to-door canvassing. In a telephone status conference with the parties, the federal district court judge suggested that the ordinance might not apply to Citizen Action's proposed activities, and told counsel that the city may amend its ordinance to include such activities. The city amended its ordinance in November 1996 to prohibit noncommercial canvassing between 5:30 p.m. and 8:30 a.m. Citizen Action then filed a supplemental complaint, and the suit was expanded to challenge the constitutionality of both the original and the amended ordinance as written, as well as the original ordinance as applied. The district court judge ruled for the city on all issues.
Citizen Action appealed the ruling that
the original ordinance was constitutional as applied. The
court of appeals found that Citizen Action's proposed
contact with residents on environmental and consumer issues
is speech protected by the First Amendment. Since threats of
unconstitutional enforcement of laws against individuals can
chill speech, the court concluded that Citizen Action's
constitutional rights had been infringed by the threat to
enforce the city ordinance &emdash; "an unlawful application
of that law to intentionally deter and prevent the exercise
of free speech in violation of the First Amendment."