Krishna v. Lee Extricates the Inextricable: an Argument for Regulating the Solicitation in Charitable Solicitations

• Publication year: 1994

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 17, No. 3SPRING 1994

Krishna v. Lee Extricates the Inextricable: An Argument for Regulating the Solicitation in Charitable Solicitations

John Dziedzic(fn*)

I. Introduction

The telephone rings and you answer it. The voice on the other end greets you and makes you feel like a long-lost friend. Momentarily caught off guard, you try to identify the voice, and while you are distracted, the voice makes the pitch. You have been invited to an event to help a worthy cause. Before you can respond, the voice suggests that you might consider donating your tickets, if you cannot attend, so that a disabled child or some other disadvantaged individual can enjoy the evening's entertainment.

It is not until much later, if at all, that you discover that the voice did not belong to the altruistic, volunteer-supporter of the cause, as you had assumed. Instead, the voice was that of a paid employee of a for-profit company, independent of and retained by the nonprofit organization solely to raise money.

The use of paid fundraisers is not intrinsically wrong or illegal. Many contributors, however, feel that they have been somehow duped when they later discover that a substantial portion of their contribution was absorbed as fundraising costs and thus was not available for the charity to use in providing the direct services of the cause.(fn1) Whether contributors are partially motivated to give by guilt, as in the phone call described above, or by a "get-rich-quick" sweepstakes scheme, they are nonetheless unquestionably motivated also by the solicitor's representation that the contribution will help the cause.

Whatever the motivation, this fundraising pitch, and others like it, are repeated and consummated frequently enough to maintain an entire industry of telemarketing and direct mail fundraisers. These fundraisers assert that their efforts support their clientele of nonprofit charitable organizations. The degree to which the charities are actually supported is questionable. Without question, however, fundraising schemes conducted by phone, door-to-door, and through the mail have raised the ire of enough citizens to make charitable solicitations the object of the perennial plea: there ought to be a law!

Several states have responded to those pleas with a variety of statutes concerning charitable solicitations.(fn2) Most of those statutes, however, display schizophrenic tendencies. Apparently, legislators realize that efforts to control charitable solicitations necessarily implicate First Amendment protections. Rather than confront this issue directly, the drafters appear to have attempted to characterize their regulations as something other than what they are. The result has been a decade during which the Supreme Court, in a line of cases known as the Riley trilogy,(fn3) consistently struck down those regulatory schemes as violating charities' free speech rights.(fn4) One surveyor of the carnage concluded that a "by-product of this First Amendment protection is the near inability of states to regulate fundraising effectively."(fn5)

There is an alternative explanation for the Supreme Court's harsh treatment of state fundraising regulation. Because most charitable solicitation statutes are actually only thinly veiled attempts to regulate how charities' funds are used,

not how the funds are solicited,(fn6) the statutes invite constitutional challenge as intrinsically overbroad. These statutes affect the speech of the vast majority of honest charities in an attempt to control the improper use of donated dollars by a few bad apples.(fn7) In each of the three primary charitable solicitation cases in the last decade,(fn8) efforts to control fraud through prohibitory and prophylactic methods have been held to be not tailored narrowly enough to survive heightened First Amendment scrutiny.(fn9)

Regulators should embrace a different approach to regulating charitable solicitation. Controls need not be broad or prohibitory. Rather, controls need only be true to the avowed purposes of existing legislation. For example, current Washington State law purports to target "deceptive and dishonest practices in the conduct of soliciting funds for or in the name of charity."(fn10) A constitutionally defensible approach would be to adopt legislation or ordinances that faithfully and honestly focus on identifying and penalizing such fundraising practices.

This Comment argues that, in the wake of the Supreme Court's decision in Society for Krishna Consciousness v. Lee,(fn11) state and local regulations are more likely to pass federal constitutional muster if they regulate obnoxious fundraising practices defined with sufficient precision. The Riley trilogy and the continued existence of charitable solicitation scams have shown that attempting to prevent the "improper use of contributions intended for charitable purposes"(fn12) by regulating how much charities pay for fundraising services has been not only unconstitutional but also ineffective.

To reach this conclusion this Comment examines four subjects. Part II is a brief review of the Riley trilogy, with an emphasis on the commercial speech analysis the Supreme Court employed. In striking down those state and local efforts to regulate charitable solicitations, the Court suggested that speech does not retain "its commercial character when it is inextricably intertwined with otherwise fully protected free speech."(fn13) Some other authors, fixated by the "inextricably intertwined" language, believe the Riley trilogy inflicts an inevitably fatal injury on any attempt to regulate charitable solicitations.(fn14) This Part focuses on the word that precedes and limits the words "inextricably intertwined," emphasizing that speech loses its commercial character only when it is so intertwined with the charity's message as to be inextricable.

In Part III, Krishna is analyzed as an example of one situation where part of the solicitation was successfully extricated and regulated. In Krishna, the Court said that a charity could be restricted from soliciting contributions for immediate payment, but could not be restricted from distributing pamphlets.(fn15) This decision demonstrates that some speech (in this case, solicitation for immediate payment) does not rise to the level of being inextricably intertwined with the protected speech of charitable solicitations.(fn16)

For charitable solicitation to survive First Amendment scrutiny, it is essential to extricate the offensive kinds of speech from the otherwise fully protected speech. Under the federal constitution and Bill of Rights, the extricated speech could command some lesser level of protection and can be subjected to narrowly drawn regulation.(fn17) But the federal constitution is not the only source of constitutional law. Washington, like the other forty-nine states, has its own unique state constitutional perspective. In Part IV, this Comment examines whether and to what extent the Washington Constitution provides greater or different protection to charitable solicitations under the state constitutional freedom of speech provision.(fn18)

Finally, in Part V, the elements of a regulatory scheme that passes both federal and state constitutional limitations are discussed.

II. Becoming Intertwined

A. It Takes Two To Tango: Intertwining Requires Two Kinds of Speech

The First Amendment does not classify speech by categorizing the degree of protection it receives. It simply prohibits Congress from making any law "abridging the freedom of speech."(fn19) However, some scholars distinguish, at the outset, between "the two ways in which government might abridge speech."(fn20) Abridgment can be governmental action either aimed at noncommunicative impact but nonetheless having an adverse effect on communicative opportunity, or directly aimed at communicative impact itself.(fn21)

One example of the noncommunicative impact of speech is the playing of loud music in a residential neighborhood in the middle of the night. Regulations aimed at these impacts are less strictly reviewed by the Court, as long as they are content neutral.(fn22) Regulatory action aimed at communicative impact is generally content specific, and is strictly scrutinized by the Court.(fn23)

Charitable solicitation regulation is clearly content specific: its aim is to curtail or compel speech.(fn24) It clearly is "aimed at communicative impact," the type of regulation normally subjected to close scrutiny.(fn25) Under close scrutiny, the government must satisfy the heavy burden of showing not only that the regulation is necessary to further a compelling state interest, but also that it is precisely drawn or narrowly tailored to serve that interest.(fn26)

Within the realm of content specific regulation of speech, the Supreme Court has carved out exceptions where the strict scrutiny test is not applied.(fn27) Commercial speech is one such category, theoretically receiving relatively less First Amendment protection. The Court has struggled to define the philosophical foundations and to identify characteristics of commercial speech.(fn28) The Court, on occasion, has resorted to defining commercial speech as "speech which does 'no more than propose a commercial transaction,' "(fn29) and has attempted to explain the distinction between commercial and noncommercial speech as a...