December 22, 2016

The New York Civil Liberties Union and the American Civil Liberties Union filed a lawsuit on Wednesday challenging provisions of a New York State law that will curtail free speech and discourage people from donating to non-profit organizations that advocate for issues they care about. The 2016 Ethics Reform Law establishes a sweeping, complex and vague regulatory scheme for organizations that conduct a wide range of non-electoral public advocacy work – even issue oriented speech that doesn’t include lobbying -- and also implicates nonprofits that work with or provide services to those organizations. The NYCLU and ACLU argue that the provisions represent an unconstitutional threat to free speech. The suit is filed against the Joint Commission on Public Ethics, its Executive Director and New York Attorney General, Eric Schneiderman.

“This law was pitched as a vehicle to address the problem of money in politics, but instead of doing that, it takes aim at free speech rights of groups like the NYCLU and ACLU and hundreds of other educational and advocacy groups and their supporters,” said NYCLU Executive Director, Donna Lieberman. “The law goes way beyond lobbying or electioneering expenditures and makes public names and addresses of supporters who have nothing to do with lobbying or electioneering activities.” 

The Ethics Reform Law was introduced and quickly passed in the final hours of the 2016 legislative session. The bill includes some positive measures designed to stamp out coordination between political campaigns and supposedly independent groups such as Super PACs. But it also includes overly broad disclosure requirements that target activities that have nothing to do with lobbying or elections.  One section, 172-f, mandates that 501(c)(4) nonprofit groups that spend more than $10,000 a year on any public policy communications must report the name and address of donors who give $1,000 or more. The disclosures of donors will be required even if the communications do not constitute lobbying and do not involve campaign speech.

The NYCLU regularly communicates with the public about policy issues that have nothing to do with lobbying. Nevertheless, under section 172-f, those messages could require the naming of the organization’s donors, and New York State will make that donor information available to the public on a government website.

Another section of the law, 172-e, requires that 501(c)(3) non-profit organizations that provide support – including staffing, office space, financial support or “anything of value” – of more than $2,500 in a six-month period to a 501(c)(4) non-profit that is registered as a lobbyist in New York must file with the Attorney General for public review a report that shows all donations to the 501(c)(3) over $2,500 during that six-month period. That means that if the ACLU or NYCLU provide legal representation to a 501(c)(4) non-profit, that representation could mean they would have to reveal the personal information of all of their donors who have given more than $2,500. The first disclosure must be made by January 30.

“It is inconceivable that the ACLU or NYCLU should have to choose between forgoing representation of a client whose civil liberties or civil rights are being unconstitutionally violated and having to disclose wide swaths of its donors to the general public,” said ACLU General Counsel, Terence Dougherty.

These laws are also unconstitutional, the lawsuit argues, because controversial organizations like the NYCLU and ACLU are entitled, under the First Amendment, to maintain the privacy of their members and supporters. The statute acknowledges this and calls upon the Attorney General to develop regulations that will allow controversial groups to seek and receive exemptions from the disclosure requirements. But the Attorney General has not yet developed those regulations. So controversial organizations may be required to disclose their donors on January 30 without having had the opportunity to receive an exemption. And since the exemption must be obtained each year, potential donors may be intimidated from supporting the organization because of the threat of involuntary exposure as a result of the disclosure requirement

There is a long history of threats and harassment directed against the ACLU, its affiliates and individuals associated with the organization because of the positions taken by the organization on behalf of controversial issues and causes and, often, on behalf of minority groups.

In 1998 James Charles Kopp murdered Dr. Barnett Slepian while he was in his home by firing a single shot from a rifle through Slepian’s kitchen window.  Dr. Slepian was a physician who provided abortion services in the Buffalo area and had been listed on the “Nuremberg Files” website, which vilifies reproductive rights advocates and health care professionals. While Kopp was on trial, the NYCLU received an anonymous bomb threat directed at their Western Regional offices. ACLU staff members have been listed on the Nuremberg Files website.

In 2007, a man dressed in a black robe regularly appeared at the offices of the NYCLU and the ACLU in lower Manhattan.  The man marched outside the building waving signs that denounced the organizations’ staff members as “dogs” and “Jews.”  He also maintained a website that charged the organizations were parties to a Jewish conspiracy. The website includes photos of several ACLU and NYCLU staff and clients.

And as recently as April 2015, the NYCLU’s and ACLU’s New York offices were the subject of a bomb threat that required a police investigation.  The message that accompanied the threat referred to the 9/11 attacks.  Following the attacks, the NYCLU was vilified by some for its advocacy for civil liberties in the face of government anti-terrorism initiatives, and for objecting to discrimination directed at Muslims and Sikhs.

“The right of controversial organizations to protect the privacy of their membership lists is well established, and the dangers of failing to do so are well recognized,” said NYCLU Legal Director, Arthur Eisenberg. “The dangers are especially troubling in a politically charged climate like the present. The overreaching of the statute and its failure to allow exemptions from disclosure for controversial organizations makes it violate the First Amendment.”

To read the complaint, visit: http://www.nyclu.org/files/releases/Ethics-bill-complaint.pdf

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