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4-1985 May the Government Exclude "Nontraditional" Charities from a Federally-Sponsored Drive? Joel Gora

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Recommended Citation 13 Preview U.S. Sup. Ct. Cas. 295 (1985)

This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. FIRST AMNIL)MENT May the Government Exclude "Nontraditional" Charities froma Federally-SponsoredCharity Drive? byjoel N!. Gora

drive was unconstitutional under the First Amendment guarantee of freedom of' speech, ruling that the govern- Donald J. Devine, Director, ment had no valid reason to permit other charities to Office of Personnel Management solicit contributions, while barring the legal rights or- V. ganizations. NAACP Legal Defense and Educational Fund, Inc. (Docket No. 84-312) ISSUE Argued February 19, 1985 The case now before the Supreme Court, Devine v. NAACP Legal Defense Fund, involves the government's appeal fi'om those rulings. The issue is whether exclud- This case directly pits the Reagan administration ing the advocacy groups from participating in the Com- several liberal organizations in a controversy against bined Federal Campaign, on the ground that they are with real dollars and cents consequences. For a quarter not "traditional" charities, violates the First Amend- a century, the federal government has sponsored the of ment. Combined Federal Campaign (CFC), which allows a wide variety of private charities that promote "health FACTS to solicit contributions from federal civilian and welfare" In 1961, to control and simplify the process of char- and military personnel in the federal work- employees itable solicitation in the federal workplace, President place. Last year, the CFC raised over $100 million for Kennedy created the CFC. Ad hoc, sporadic solicitation the designated charities. Participation in the CFC is the would be replaced by a single, annual drive, supervised for soliciting contributions from fed- exclusive method by federal employees-through which "national volun- eral employees at work. tary health and welfare agencies and such other national the NAACP Legal Defense and Educational In 1980, voluntary agencies as may be "appropriate" would be Fund and other public interest groups petitioned the allowed to solicit funds from federal workers at their federal government to be included in the annual CFC places of employment or duty stations. Direct onsite drive as organizations to which federal workers could solicitations would be prohibited and replaced by parti- groups are all make contributions. These legal advocacy cipation in the CFC, which would be open to "nonprofit entities under the tax recognized as nonprofit charitable tax-exempt agencies having specific functions in the laws. After an initial rejection of their request (a ruling fields of health, welfare or recreational services" with an by a court on procedural grounds) later overturned active and efficient program directed at the welfare of legal defense funds and public interest groups various the public and the persons served. were admitted to the campaign and participated for two The campaign, as it developed over the next two years as designated charities. decades, is under the supervision of the Director of the February, 1983, however, a Presidential Executive In Office of Personnel Management (OPM). Apart from that: "Agencies that seek to influence Order announced this national supervision, the drives are con- of elections or the determinations of pub- the outcomes ducted locally at federal installations-usually through through political activity or advocacy, lobbying, lic policy the joint operation of it local private voluntary organiza- or litigation on behalf of' parties other than themselves tion (the "Principal Combined Fund Organization" or charitable health and welfare agen- shall not be deemed PCFO) overseen by a local federal coordinating commit- cies and shall not be eligible to participate in the Coin- tee. The local PCFO's costs are reimbursed from the bined Federal Campaign. funds secured by the participating charities. groups filed suit to challenge their The excluded Each local campaign consists of a single annual drive Two lower courts (504t F. expulsion from the CFC. of several weeks in the fall of the year. The participating Supp. 1365 (1).D.C. 1981) and 560 F. Supp. 667 (D.D.C. federal agencies conduct the solicitation among their that removing them from the charity 1983)), agreed employees using materials supplied by the local PCFO. Joel 1l. Gora isa 1'tolessor of Daw' at Brooklyn Law School, Federal workers are encouraged to contribute and vol- 250Joraleion Street, Brooklyn, NY 11201; telephone (718) unteer their time to help with the fund drive. Included 625-2200. in the material provided is a brochure describing all the

Issue No. 13 295 participating charities in brief' statements prepared by Law and the Natural Resources Defense Council,joined the charities themselves. Employees who choose to con- the two civil rights funds in filing suit to challenge their tribute to the CFC may either designate one or more of exclusion. These groups contend that their legal rights these charities to receive their contributions or make an activities do provide "health and welfare" charitable undesignated contribution which the local PCFC will services to countless people in the form of securing allocate among the particpating charities as it sees fit. equal employment rights, educational opportunities, Importantly, these contributions can be made through welfare benefits and environmental protection. They payroll deductions. claim that they fulfill charitable purposes as much as In effect, the federal government, through the CFC "legal aid societies," which are not excluded, and more provides the structure, mechanism and opportunity for than groups such as the National Parks and Conserva- private charitable organizations to directly solicit contri- tion Association, the United States Olympic Committee butions from federal workers. Through the OPM, and and the wilderness Society-all of which have been ad- local committees, the federal government supervises the mitted to the CFC. Accordingly, they maintain, their overall program. exclusion must result either from the fact that their Participating in the CFC is a two-step process. First, charitable activities are "controversial" or because their the organization must apply to the Office of Personnel charitable work takes the form of litigation-neither of Management for certification of' national eligibility. A which is permissible basis of exclusion under the First charity that obtains this national clearance is then al- Amendment. In addition, Planned Parenthood, which lowed to apply separately to each of the approximately was singled out for special condemnation by Director 550 local campaigns in which it wishes to participate. Devine, filed separate litigation, which is still pending. In 1980, two civil rights organizations-the NAACP The government, however, argues that the CFC his- Legal Defense and Educational Flud and the P'uerto torically has been made available only to "traditional" Rican Legal )efense and Educational Fund-were de- charities whose goals are universally considered nied the right to participate in the CFC on the ground "worthwhile," although these terms nowhere appear in that they did not provide "direct services," but rather the applicable regulations. In its view, excluding legal serve as "advocates flor groups," and were thus ineligible advocacy groups serves these purposes and protects the under the regulations. The two groups brought suit and viability and success of the CFC by minimizing contro- a federal district court agreed with their contention that versy and disaffection, preventing disruption in the fed- the CFC is a government-sponsored channel of commu- eral workplace, avoiding the appearance that federal nication, exclusion from which must confbrm to First resources are being used to further partisan causes and Amendment safeguards. Since the term "direct services" preventing the CFC's from being inundated by a wide was found too vague a criterion to determine eligibility variety of "nontraditional" organizations. for participation, the court ordered the organizations admitted to the campaign. BACKGROUND AND SIGNIFICANCE Instead of appealing this ruling, the government The basic issue for the Court is whether, in setting up revised its regulations to permit legal advocacy groups to the CFC and allowing charities to use it to solicit contri- participate in the campaign. Accordingly, in 1982 and butions, the government has created a forun for com- 1983, in addition to the two challengers, other partici- munication and expression. If so, the Court must next pants in the campaign included the Conservative Legal determine what kind of a forum has been created and Defense and Education Fund, the National Right to what standards should govern the propriety of' denying Work Legal Defense , the Center for Auto certain charitable groups access to that forum. Safety and the National Organization for Women Legal First Amendment "public forumin" law-not untypi- Defense Fund. Although there was some controversy cally-traces to an 1895 observation by Oliver Wendell over including certain of' these groups-particularly Holmes, then a Massachusetts appellate judge, that "for union opposition to the right to work group--the 1983 the (government) absolutely or conditionally to forbid campaign set a new record for charitable contributions. speaking in a highway or public park is no more an The NAACP Fund alone received over $525,000 in infringement of the rights of a member of the public contributions in the two-year period. than for the owner of a private house to forbid it in his But OPM Director Devine clearly bridled at having home." these "controversial" groups in the campaign. He The law has come a long way since then. In 1939, strongly lobbied the White House for authority to expel Justice Roberts proclaimed that using streets and parks such groups, and, in February of 1983, he got it. Presi- for assembly, communicating thoughts between citizens dent Reagan issued the contested Executive Order ex- and discussing public questions has "from ancient times" cluding legal defense funds from the CFC. A number of been a part of the privileges and liberties of citizens. such groups, including the Sierra Club Legal Defense Thus originated the concept of "the public forum"- Fund, the Lawyers Committee for Civil Rights Under those places which by long tradition have been devoted

296 PREVIEW to assembly and debate. When use of such a traditional messages, "as long as the regulation on speech is reason- public forum for speech is involved, the government's able and not an effort to suppress expression merely power to interfere with the speaker is severely limited. because public officials oppose the speaker's view." Ex- Only speech which is illegal, such as incitement or por- amples include a school's interoffice mail system and a nography, can be banned, and the government's ability military base. to impose reasonable rules for competing uses of the In the lower court proceedings, there was extensive forum cannot depend on the speaker's message or point debate over whether the CFC should be labeled a limited of view. public forum-making it harder to justify excluding In this case, there is no claim that the messages of the legal advocacy groups, or a nonpublic Forum- where legal advocacy groups are in any way illegal or subject to the government only need show its action is reasonable suppression. In fact, the Court has clearly ruled that and not disguised censorship. In the Supreme Court, legal advocacy is a protected form of political and social however, both sides seem to concede that the CFC is expression under the First Amendment, and that solici- probably a nonpublic forum, rather than a limited pub- tation for charitable contributions is protected as well. lic forum, and direct most of their legal fire at the Thus, if the legal defense funds wished to solicit contri- question of whether the exclusion of legal defense funds butions in a traditional public forum, they could not be from participation in the annual charity drive is "reason- prohibited from doing so, as the government concedes. able." But the challengers are not content, figuratively speak- As a result, the legal significance of the case is not ing, to stand on a street corner and ask for contribu- likely to involve a major doctrinal change in the method tions. Instead, like other advocates before them, the of labeling different types of forums, but rather will legal defense groups want to be able to communicate probably witness further elaboration of the standards to their messages in the most direct fashion to an appropri- judge the reasonableness of exclusing certain individu- ate audience. To do so, they need access to places and als or groups from such a nonpublic forum. In a 1983 methods of communication, such as the CFC, which are case (Pery Education Ass'n. v. Periy Local Educators' Ass'n, not traditional public forums. 460 U.S. 37 (1983)), the Court narrowly ruled, 5 to 4, The Court has had to deal with such claims of access that it was reasonable for a school system to allow its frequently in recent years, determining whether a parti- internal mail system to be used by a certified teacher's cular facility, location or channel of communication union, but not by a rival union which was trying to get could be closed or restricted to certain groups, indiidu- back into power. On the reasonableness point in this als or messages. Such sought-after "forums" have in- case, the legal defense funds claim that the CFC has not cluded: public libraries, prison and jail property, been limited to "traditional" charities, and that, in any schoolgrounds, the advertising spaces on city buses, mu- event, they are not significantly different from such nicipally-owned theatres, the open portions of military charities and theii inclusion in the fund drive is compati- bases, a meeting room at a public university, state ble with its purposes. The government asserts, however, fairgrounds, home letter boxes and the internal mail that the CFC was intended for and must be restricted to distribution system of a school district. In these cases, more "traditional" charities to avoid disruption and con- most particularly the last one, the Court has fashioned a troversy and impermissibly change the basic nature of series of rules to catalog such nontraditional forums and the campaign. identify the extent to which government may control use By comparison, the practical significance of the case of them. will be considerable in terms of the ability of a wide The Court has defined a "limited public forum" as range of public interest charities to solicit contributions public property which government "has opened for use from the millions of federal and military employees. If by the public as a place for expressive activity." Even such groups do establish that it was wrong to exclude though the government is not obliged to create or con- them, they will be able to participate and attract more tinue such forums and may limit their use to certain funds for their worthy causes at the possible expense of kinds of groups or the discussion of certain kinds of contributions to other charities. At the same time, the subjects, so long as the forum already exists, the govern- government's brief contains the veiled threat that court- ment is sharply restricted in determining who may use ordered inclusion of such advocacy groups "ultimately the forum to communicate. Examples include a univer- would force the President to restrict the campaign quite sity meeting hall and a schoolboard public hearing. substantially or, alternatively, to abolish the campaign Fewer restrictions apply to government's allocation of entirely." For a President who has frequently spoken of access to so-called "nonpublic forums," places which are the need to increase private voluntary support for basic not by tradition or designation a forum for comnmunica- social welfare services, that may be a different dilemma tion, but where government has granted speakers access indeed. Ironically, the President may be spared this for certain purposes. In such nonpublic forumns, the difficult choice because Justice Thurgood Marshall, who government may pick and choose among speakers and could be expected to support the legal defense funds,

Issue No, 13 297 has excused himself from participating in the case. Pre- 1. The expulsion of' legal defense funds froti the CFC sumably, he did so because, prior to joining the Court, violates the First Amendment. he was chief counsel for the NAACP Legal Defense and 2. Whether the CFC is a limitcd public forun or a Educational Fund-the very group challenging the nonpublic forun, excluding legal defense funds is President's order. unreasonable, since such funds are compatible with the purposes and niethods of the canpaign. ARGUMENTS 3. The governnent's justifications for excluding such For Devine, Director of the Office of PersonnelManagement groups-to avoid controversy, preserve neutrality (Counsel, Paul Blankenstein, Department ofjustice, lWashington, and prevent inundation of the CFC by a wide range DC 20530; telephone (202) 633-2217) ofother charities-are factually or legally unsound. Limiting participation in the Combined Federal 4. No adequate alternative means for seeking contribu- Campaign to traditional health and welfare charities is tion from federal employees are readily available. consistent with the First Amendment. 1. The case involves a nonpublic forum1, thus giving AMICUS BRIEFS government much leeway in determining access to it. In Support of the Government 2. Limiting participation in the canpaign to traditional The government's position is supported by, anmong charities is a reasonable regulation of that forum in others, the United Black Fund of America and various light of: local chapters or branches of the American Cancer Soci- (a)the common understanding of the ptrpose of ety, the Anerican Red Cross, the Boy Scouts of America charitable drives conducted in the workplace, and , as well as certain other local (b)the governnent's purposes in creating the fortlm1, Washington, DC charities. and (c) the alternative channels of charitable solicitation available to the legal defense funds. In Support of the NAACP The American Civil Liberties Union, PManned Par- For the NAACP Legal Defense and Educational Fund enthood, the National Committee for Responsive Phi- (Counsel of Record, Charles Stephen Ralston, NAACP Legal lanthropy, Independent Sector, the National Black Defense and Educational Fund, Inc., 99 Hudson Street, New United Fund, the American Jewish Congress and the York, NY 10013; telephone (212) 219-1900) Public Citizen Foundation.

ARGUMENTS: March SESSION

Monday, March 18 Tuesday, March 19 Wednesday, March 20 1. Tennessee v. Street (83-2143) (Pre- 5. Commodity Futures v. 'Veintrattb (84- 9. United States v. Bagles (8,4-418) view31l-313) 261) (Preview 314-315) It. Oklahoma v. Castleberry (83-2126) 2. City of Cleburne v. Cleburne Living 6. Ramirez v. Indiana (84-5059) ('liniew I I.McDonald v. Smith (841-476) (I'n'view Center (8,1-468) 309-310) 299-300) 3. Black v. Romano (84-,165) 7. Liparota v. United States (84-5108) (Plie- 12. INS v. Rios-Pineda 4. Mitsubishi Motors v. Soler Chrysler-Ply- view 289-290) mnouth,Soler Chrysler-ilymouth v. Mit- 8. Williams %.Vermont (Preview 307-3)8) subishi Motors (83-1733)

Monday, March 25 Tuesday, March 26 Wednesday, March 27 I. Alanio Foundation v. Donovan (83- 5. Sch. Comnmittee of Burlington ,. Dept. 9. Vaters v. Radiation Survivor s (8,t-57 I) 1935) of Ed., Mass. (84-433) 10I. l)ept. of Income v. Ileckler (83- 2. Supt.. Mass. Corr. Inst. v. [ill (8.t-438) 6. Landreth Timber Co. v. Landreth (83- 2136) 3. Jean v. Nelson (84-52,10) 1961) II. Aspen Skiing \. Aspen I lighlands (8-t- 4. Atascadero State Hlosp. v. Scanlon (84- 7. Gould v. Ruelenacht (8.-1165) 510) 351) 8. Thomas, Acting Admin., EPA v. Union 12. lialdwin v, Alabanim (84-57,13) Carbide (81-497)

298 I'REVI E\V