DO CALIFORNIA’S LAWS ON COMMERCIAL FUNDRAISING VIOLATE THE FIRST AMENDMENT?
Vol. 10
January 2010
Page
The U.S. Supreme Court has held that content-neutral regulations on charitable solicitations violate the First Amendment unless they serve sufficiently strong, subordinating governmental interests and are narrowly drawn to serve those interests. The Court has approved of statutes requiring charitable fundraisers to register and provide financial disclosures. However, it has rejected statutes limiting the amounts that a fundraiser can charge or that a charity can spend on fundraising. It has also rejected statutes requiring a fundraiser to disclose the percentage of collected funds turned over to charities. The Court has disapproved of such statutes because these rules impermissibly chill speech by inhibiting fundraising.
In 2004 and 2006, California adopted and amended the Nonprofit Integrity Act-a sweeping reform of California's charitable fundraising regulations that unduly burdens commercial fundraising. Some elements of the Act do not constitute facial violations of the First Amendment, such as requirements that charitable fundraisers register with and provide annual financial disclosures to the California Attorney General. Other elements, however, do violate Constitutional protections. The provision giving the Attorney General the right to reject a charitable fundraiser's registration, while simultaneously giving the Attorney General discretion over the contents of registration forms is an unconstitutional prior restraint on free speech. The provision requiring a charity to "exercise control and approval over the content and frequency of any solicitation" by a commercial fundraiser is an unconstitutional restriction on the content of the charitable fundraiser's speech. The provision giving a charity the right to cancel its contracts with commercial fundraisers on 30 days notice, without payment of damages, unnecessarily inhibits the parties' abilities to engage in long-term fundraising projects, thus chilling their speech rights. The provision requiring fundraisers to post a $25,000 bond before commencing fundraising prevents poorer fundraisers and charities from engaging in commercial fundraising, also improperly inhibiting their speech rights.
It is time for a court challenge to restore charitable fundraisers' First Amendment rights.
Vol. 10
January 2010
Page
In 2004 and 2006, California adopted and amended the Nonprofit Integrity Act-a sweeping reform of California's charitable fundraising regulations that unduly burdens commercial fundraising. Some elements of the Act do not constitute facial violations of the First Amendment, such as requirements that charitable fundraisers register with and provide annual financial disclosures to the California Attorney General. Other elements, however, do violate Constitutional protections. The provision giving the Attorney General the right to reject a charitable fundraiser's registration, while simultaneously giving the Attorney General discretion over the contents of registration forms is an unconstitutional prior restraint on free speech. The provision requiring a charity to "exercise control and approval over the content and frequency of any solicitation" by a commercial fundraiser is an unconstitutional restriction on the content of the charitable fundraiser's speech. The provision giving a charity the right to cancel its contracts with commercial fundraisers on 30 days notice, without payment of damages, unnecessarily inhibits the parties' abilities to engage in long-term fundraising projects, thus chilling their speech rights. The provision requiring fundraisers to post a $25,000 bond before commencing fundraising prevents poorer fundraisers and charities from engaging in commercial fundraising, also improperly inhibiting their speech rights.
It is time for a court challenge to restore charitable fundraisers' First Amendment rights.