RESPONDENT:National Federation of the Blind of North Carolina
LOCATION:United States Catholic Conference
DOCKET NO.: 87-328
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 487 US 781 (1988)
ARGUED: Mar 23, 1988
DECIDED: Jun 29, 1988
Errol Copilevitz – on behalf of the appellees
Lacy H. Thornburg – on behalf of the appellants
Media for Riley v. National Federation of the Blind of North Carolina
Audio Transcription for Opinion Announcement – June 29, 1988 in Riley v. National Federation of the Blind of North Carolina
William J. Brennan, Jr.:
The second case I have to announce also comes here on certiorari from the Court of Appeals for the Fourth Circuit.
It’s Riley versus the National Federation of the Blind of North Carolina.
The question for decision in the case is the constitutionality of the North Carolina Charitable Solicitations Act.
That Act regulates professional fund raising and defines the prima facie reasonable fee that a professional fundraiser may charge according to a three-tiered schedule.
A fee up to 20% of receipts collected is deemed reasonable.
A fee between 20% and 35% is deemed unreasonable upon a showing that the solicitation at issue did not involve the dissemination of information, discussion, or advocacy relating to public issues as directed by the charitable organization which is to benefit from the solicitation.
A fee exceeding 35% is presumed unreasonable, but the fundraiser may rebut the presumption by showing that the fee was necessary either because the solicitation involved dissemination of information or advocacy on public issues directed by the charity, or because otherwise the charity’s ability to raise money or communicate would be significantly diminished.
The Act also provides that a professional fundraiser must disclose to potential donors the average percentage of gross receipts actually turned over to charities by the fundraiser for all charitable solicitations conducted in the State within the previous 12 months.
And finally, the Act provides that professional fundraisers may not solicit without an approved license, whereas volunteer fundraisers may solicit immediately upon submitting a licensed application.
And appellees, a coalition of professional fundraisers, charitable organizations, and potential donors, brought the suit against the appellant government officials charged with enforcement of the Act seeking injunctive and declaratory relief.
The District Court ruled that the challenged provisions on their face unconstitutionally infringed upon freedom of speech and enjoined their enforcement.
The Court of Appeals affirmed and we in turn affirm the judgment of the Court of Appeals.
We hold that North Carolina’s three-tiered definition of reasonable fees unconstitutionally infringes upon freedom of speech.
The solicitation of charitable contributions is protected speech, and using percentages to decide the legality of the fundraiser’s fee is not we think narrowly tailored to the State’s interest in preventing fraud.
And North Carolina’s requirement to professional fundraisers disclose to potential donors, before an appeal for funds, percentage of charitable contributions collected during the previous 12 months that were actually turned over to charity is also unconstitutional.
This provision of the Act is a content-based regulation because mandating speech that a speaker would not otherwise make necessarily alters the speech’s content.
Even assuming that the mandated speech, in the abstract, is merely commercial, it does not retain its commercial character when it is inextricably intertwined with the otherwise fully protected speech involved in charitable solicitations, and thus the mandated speech is subject to the test for fully protected expression, not the more deferential commercial speech principles.
Finally, North Carolina’s licensing requirement as to professional fundraisers is unconstitutional.
Speaker’s rights are not lost merely because compensation is received, and the State’s asserted power or licensed professional fundraisers carries with it, unless properly constrained the power directly and substantially to affect the speech they utter.
Consequently, the statute is subject to First Amendment scrutiny.
Generally, speakers need not obtain a license to speak even assuming that the State’s interest in regulating those who solicit money justifies requiring fundraisers to obtain a license before soliciting.
Such a regulation must provide that the licensor will, within a specified brief period, either issue a license or go to court.
That requirement is not met here, for the North Carolina Act permits a delay without limit.
Justice Stevens joins only parts one two and three of the Court’s opinion and Justice Scalia joins all of the opinion but not Footnote 11.
Justice Scalia has filed an opinion concurring in part and concurring in the judgment.
Justice Stevens filed an opinion concurring in part and dissenting in part.
The Chief Justice filed a dissenting opinion in which Justice O’Connor joined.