Colorado groups challenge Denver ordinance limiting the free speech rights of nonprofits
Phoenix—Everyone has the right to support organizations that educate others and promote positions on political and social issues. But for people in Denver, that right has strings attached when it comes to nonprofit organizations—and that’s unfair and unconstitutional.
Today, the Goldwater Institute filed a lawsuit in state district court on behalf of the Colorado Union of Taxpayers Foundation and the TABOR Committee, two Denver-based nonprofits that educate the public on tax-related ballot initiatives all around Colorado. The lawsuit seeks to overturn a Denver ordinance, passed by the city in September, that requires nonprofits to give the government a list of their donors—including their occupations and employers—any time those groups spend as little as $500 communicating with voters about city ballot measures. On top of that, Denver’s ordinance is retroactive; for ballot-question elections, it defines the “election cycle” as the entire year, which means that any group exceeding that threshold in a one-year period will have to disclose all of its donors to the government—even those who gave before the group decided to speak out on a ballot issue. By undermining nonprofits’ speech rights, individual privacy is undermined as well.
“Since the 1950s, the Supreme Court has protected donors’ privacy when they contribute to nonprofits, ruling that government officials can’t force advocacy groups to turn over the identities of their supporters to public officials. But Denver’s new ordinance disregards this precedent entirely,” said Goldwater Institute Senior Attorney Matt Miller. “Nonprofits have the right to educate and speak up for what they believe in, and that’s why we’re asking the city of Denver to stop the enforcement of its donor disclosure ordinance.”
When nonprofit speech is limited in such a way, it has a chilling effect on its donors and potential donors. “Putting donors’ names, addresses, employers, and occupations on a government list makes them vulnerable to harassment and intimidation,” said Marty Neilson of the Colorado Union of Taxpayers Foundation. “Nonprofits should be able to choose whether or not to make their donor lists public in order to persuade people to listen to what they have to say, but that should be their decision to make, not the government.” Penn Pfiffner of the TABOR Committee agreed. “All Americans—including the people of Denver—ought to be able to support specific groups or positions without fear of being targeted by people who disagree with them.”
And while nonprofits must disclose their donors if they advocate for or against ballot initiatives, media organizations are exempt from such requirements. “Recently, the New York Times editorial board tweeted the phone numbers of seven Republican senators, urging followers to call them and tell them to oppose the tax reform bill. If a Denver nonprofit did something similar involving a ballot initiative, it would likely be forced to give up donor information,” said Goldwater Institute Senior Attorney Jim Manley. “The media exemption creates an unfair double standard.” This past summer, the Goldwater Institute released a report recommending the expansion of the media exemption to include nonprofit communications.
Denver’s ordinance is the latest in a trend of cities cracking down on nonprofit donors’ First Amendment rights:
- Earlier this year, in Santa Fe, New Mexico, the Rio Grande Foundation ran a YouTube video, website, and Facebook posts that opposed a proposed city soda tax. This speech drew the attention of the Santa Fe City Attorney, who alleged that the speech cost more than $250 and therefore required disclosure of the Foundation’s donors under a 2015 city ordinance. After a mini-trial, the city’s campaign board issued the Foundation a public reprimand and demanded the names of its donors.
- The city of Tempe, Arizona has proposed a campaign finance law—which voters will decide in March 2018—that would require nonprofits spending more than $1,000 to communicate with voters in municipal elections to disclose their donors.
Read more about Colorado Union of Taxpayers Foundation v. City of Denver here.