Federal court: The state’s regulation of non-profit fundraising solicitations violates free speech protections

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A federal court has found that state laws closely regulating paid, nonprofit fundraising probably violate free speech guarantees, ruling in favor of a professional fundraiser representing a conservative group which “promotes education about America’s founding principles and history” and “the broader traditions of western civilization.”

The decision by federal Judge Jeffrey A. Meyer prohibits enforcement of nonprofit fundraising laws, at least temporarily, in a decision critical of state solicitation laws in general.

The court ruled for professional fundraiser Adam Kissel, who challenged laws requiring him and others to submit to an array of bureaucratic requirements before soliciting Connecticut donors. Kissel plans to raise money for the Pennsylvania-based Jack Miller Center.

Meyer said three regulations enforced by the Department of Consumer Protection specifically, and perhaps unconstitutionally, restrict Kissel’s First Amendment right and presumably those of other fundraisers — requirements that he notify the department 20 days in advance of making solicitations, provide the department in an advance with the text of his intended solicitation and make records available to the department of who donates and in what amount.

Kissel, who worked for the Trump administration education secretary Betsy DeVos, has years of experience in higher education policy and philanthropy. He said Thursday his intention in Connecticut is to seek donation in the tens of millions of dollar range from deep-pocket individuals and groups known to support traditional U.S. history curricula.

Such solicitations, Kissel said, involve spontaneous travel to Connecticut and in-person meetings — neither of which lend themselves to advance notice and prepared scripts.

“Connecticut was much more burdensome than other states,” Kissel said. “Maybe the worst. My intention was the protect the first amendment right of fundraising professionals.”

Kissel, represented by the libertarian Pacific Legal Foundation, argued that the consumer laws unjustly infringed on his right to engage in fundraising speech. Meyer agreed and concluded as well that in some cases that state Attorney General William Tong’s office failed to show the laws were effective in their ostensible intent, which is protecting the public from fraud.

Meyer’s temporarily blocked the state from enforcing fundraising laws against Kissel after finding that Kissel is likely to win if his suit goes to trial. Daniel Ortner, one of the Pacific Legal Foundation lawyers said that, should Kissel prevail, the laws will be unenforceable against anyone.

Myer wrote that “every one of these requirements is predicated on a content-based evaluation of the subject matter of Kissel’s speech. And he said that “Kissel has established a strong likelihood of success” under the legal standard used in evaluating free speech cases.

A spokeswoman for state consumer protection commissioner Michelle Seagull, who Kissel sued, said she was reviewing the decision.

Meyer flatly rejected some of the state’s defense of its solicitation laws.

He said the state did not even try to defend what he called the law’s literature requirement — the requirement that paid fundraisers submit texts of their solicitations in advance. Meyer said the state argued that, regardless of the requirements of the law, it would be satisfied with an “outline of the general topics that the solicitor intends to discuss” and that “this outline can be high-level and can be broad enough to permit the solicitor to adapt his or her solicitations to account for current events as they unfold.”

“In any event, I asked the Commissioner’s counsel at oral argument just how ‘high level’ an ‘outline’ may be to satisfy the statute,” Meyer wrote. “What if Kissel wanted to submit an outline that had the following two points: ‘Point A. Contact donor. Point B. Money for (Jack Miller Center)’? The answer was that the (Department of Consumer Protection) would probably accept such a bare-bones outline. But if that is all the statute requires — no more than a vague and meaningless outline — then this requirement falls well short of serving any compelling purpose of preventing fraud and promoting public information about charitable solicitation activity.”

“The statute’s literature requirement (whether as actually written or as re-imagined by the Commissioner) is not narrowly tailored to serve a compelling purpose,” Meyer wrote.

Meyer said the consumer department apparently pays little attention to the law requiring fundraisers to keep records of donors and what they gave. A department employee said in an affidavit to the court that “in my experience with the DCP I am not aware of a single instance in which DCP ever asked to inspect the donor records collected by a paid solicitor under this provision.”

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