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

Tue Jun 20 05:56:39 PDT 2006

Thanks to David Cruz for the clarification. I relied on news reports.  It 
still makes for an interesting hypo but with the hypo italicized.

Michael Curtis
----- Original Message ----- 
From: "David Cruz" <dcruz at law.usc.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Monday, June 19, 2006 9:38 PM
Subject: Re: May state government bar nonprofit groups from limiting speech 
oftheir directors?

>
> I would just like to be clear about what is or is not the referent of "the
> ACLU approach" in Michael Curtis's post below.  I cannot speak for the
> national ACLU, the Southern California affiliate, or their boards, but I
> am a member of the board of directors of each and attended this past
> weekend's national board meeting.  The following are my personal views.
>
> There has never been a proposal involving "purge or gagging" of board
> members, although Stephanie Strom's reporting for the New York Times seems
> to have done its utmost to portray the organization in the worst possible
> light.  The national board's committee on the rights and responsibilities
> of board members prepared a draft set of guidelines, an "Introduction" for
> new members, that was clearly explained to be a proposed aspirational set
> of best practices concerning organizational structure and functioning.
> It was explicitly not proposed to the full board as a bylaw or policy of
> the organization that might serve as any sort of basis for censorship or
> disciplinary action.
>
> This proposal was coming before the full board for discussion for the
> first time this past weekend.  It frequently takes many passes before our
> board adopts something.  Some of the language in the proposed guidelines
> did unfortunately sound unduly restrictive, to myself, fellow board
> members, and our executive director.  So, quite consistently with usual
> practice, the entire matter was remanded to the committee so that it could
> do further work, refine its proposal, and make utterly clear that while we
> must as a responsible nonprofit corporation ensure that board members are
> aware of their fiduciary obligations and duty of loyalty to the
> organization, the ACLU remains committed to freedom of speech and against
> censorship, whether by government or by the organization itself.
>
> This leaves Eugene's question in an even more hypothetical posture than
> Strom's reporting suggests -- not that there is anything wrong with that.
>
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
>
> On Mon, 19 Jun 2006, michael curtis wrote:
>
>> 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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>
>
> _______________________________________________
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