Can controversial nonprofits expect government protection from mandatory disclosures of their donor participants? New Jersey is the latest state to respond “No,” at least when Section 501(c)(4) social welfare organizations engage in lobbying or other politically related activity. Americans for Prosperity Foundation, a Section 501(c)(4) organization has asserted “Yes,” challenging this so-called “dark money” reporting and donor disclosure law as a First Amendment violation. AFP’s challenge follows on the heels of its valiant (but thus far defeated) effort against California’s more narrow donor disclosure law. Balancing our nation’s constitutional history regarding freedom of speech, association and expression rights, and related privacy interests against New Jersey’s onerous donor disclosure requirements, AFP should win the day with its newly filed injunction action.
Rounding out its current term, the U.S. Supreme Court recently issued two First Amendment rulings affecting the government’s intersection with private interests such as religion and freedom of expression. These rulings reflect the Court’s tensions on First Amendment issues, with a demonstrated willingness to abandon the long-questioned Lemon test for Establishment Clause religion cases as well as divergent views on when a private party becomes a “state actor” and therefore subject to First Amendment constraints. We address each decision in turn.
Many U.S. nonprofits provide vitally needed humanitarian assistance internationally, particularly against the backdrop of pressing medical needs, refugee crises in war-affected countries, and extensive poverty. In connection with any foreign grantmaking, foreign payments, or other overseas operations, nonprofits need to be mindful of their obligations to comply with United States sanctions programs, which are often more extensive and applicable than many nonprofit organizations understand.