May state government bar nonprofit groups from limiting speech oftheir directors?

[michael curtis]

There strike me as being serious policy problems with the ACLU approach. 
This is a membership organization.  State affiliates elect board members for 
terms and there are I think other forms of election.  It strikes me that as 
a matter of democratic policy an elected board member should have the right 
to dissent publicly.  It is a way of speaking to the membership that might 
choose to elect directors favoring other policies.  And of course board 
members are the ones most likely to know what is going on.  So as a matter 
of policy this proposed ACLU approach is elite "democracy" of the Federalist 
type, or so it seems on first blush. Perhaps Boy Scouts v. Dale allows this 
sort of purge or gagging of elected delegates and prevents any rules that 
would impose democratic norms--but I think it should get some thought before 
being translated into gagging or purging elected board members chosen for 
terms for favoring a different policy course.  Basically the rule would be 
that the state can't require democratic rules for such groups and perhaps 
the 1st Amendment means just that.  I am simply uncertain.  For a state 
legislature that excluded an elected member based on his dissenting views, 
see Bond v. Floyd.  At least as a matter of policy, memberhship 
organizations that purport to be democratic should not do this sort of thing 
either.

The 1st amendment question depends in part on who you see as the speaker. 
In either case the state acts--either setting rules that allow this sort of 
purging or silencing of elected delegates and speakers--protecting the right 
of the organization to be protected against public dissent from its board 
members or if you prefer its right to have a unified message or protecting 
the speech rights of the dissenters, who might-- based on their dissent 
becoming public --become a new majority.

Scouts v. Dale strikes me as involving somewhat different issues. It was a 
group that does  not accept openly gay scout masters, because it interfered 
with its message.  Suppose Scouts had an elected board for terms  and board 
members dissented and wanted the organization to change course.  The 
majority of the existing board passes a resolution gagging dissent and 
removing outspoken dissenters.  The state has a pre existing law that says 
that non profit membership organizations that elect board members can't fire 
board members for advocating a change in policy.  Is is so clear where the 
1st Amendment interests lie?  In the public sphere the Court tells us that a 
central function of free speech is to allow democracy to function--to 
provide alternatives so the public can change the course of public policy. 
I would be interested in other thoughts.  I know the vote with your feet 
approach, but that insulates the current ruling group from democratic change 
from within.

Michael Curtis
----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Monday, June 19, 2006 3:49 PM
Subject: May state government bar nonprofit groups from limiting speech 
oftheir directors?


Strom, "ACLU Warned on Rules To Limit Members' Speech," N.Y. Times, June
19, 2006, at A13, reports:

"A lawyer in the New York state attorney general's office informally
warned the American Civil Liberties Union that his office had concerns
about proposed standards that would limit the group's board members from
speaking publicly about policies and internal operations, according to
three board members....

"Speaking in general terms, [Gerald Rosenberg, the assistant attorney
general in charge of the New York State charities bureau] said he would
have concerns if any nonprofit organization limited its board members'
ability to speak publicly about policies.  'If a public charity did
adopt as a bylaw or a binding resolution that barred its directors from
discussing public policy outside the boardroom, it might well be of
concern to us,' he said."

It surprises me that any such bylaws or resolutions would even be
prohibited by state law, though I'd love to hear what those who New York
law or nonprofit organizations law more generally have to say about
that.  But even if state law purports to bar such limitations, wouldn't
the First Amendment -- especially given Boy Scouts v. Dale -- give
organizations the constitutional right to remove directors who say
things that criticize the organization and thus undermine the
organizations' ability to present a coherent voice, and govern its
affairs?

Eugene
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