Riley v. National Federation of Blind of North Carolina, Inc.

Chief Justice Rehnquist,

with whom Justice O’Con-nor joins, dissenting.

I

In 1980 this Court held invalid an ordinance enacted by a suburb of Chicago regulating the percentage of the gross amount of money raised by charitable solicitors which might be used for the cost of conducting the solicitation. Schaumburg v. Citizens for a Better Environment, 444 U. S. 620. In an effort to comply with that decision, Maryland enacted a statute forbidding charities to contract with professional fundraisers in such a way as would allow the fundraisers to *805retain more than 25% of the money collected. Even though an administrative official was empowered to waive this requirement when its imposition would effectively prevent the charitable organization from raising money-, the Court nonetheless invalidated the statute. Secretan) of State of Maryland v. Joseph H. Munson Co., 467. U. S. 947 (1984). Following the decision in Munson, North Carolina revised its Charitable Solicitations Act. to contain the provisions described in the opinion of the Court today. The Court now invalidates the North Carolina provisions as well.

The Court’s opinion in Schaumburg relied on the seminal cases of Lovell v. Griffin, 303 U. S. 444 (1938), Schneider v. State, 308 U. S. 147 (1939), and Martin v. Struthers, 319 U. S. 141 (1943), as establishing the right of charitable solicitors under the First Amendment to be free from burdensome governmental regulation. It is interesting to compare the activities of the three “solicitors” in those cases with the activities of professional fundraisers in cases like the present one. In Lovell, for example, appellant was convicted for distributing a religious pamphlet and a magazine called the “Golden Age” without a permit. 303 U. S., at 450. In Schneider, the evidence showed that one of the petitioners was a “Jehovah’s Witness” who canvassed house-to-house-seeking to leave behind some literature and to obtain contributions to defray the cost of printing additional literature for others. 308 U. S., at 158. In Maiiin, the appellant was also a Jehovah’s Witness, who went door-to-door-distributing to residents of homes leaflets advertising a religious meeting. 319 U. S., at 142.

These activities are a far cry indeed from the activities of professional solicitors such as those involved in Munson and the present case. In Munson, the plaintiff, an Indiana corporation, was “a professional for-profit fundraiser in the business -of promoting fundraising events and giving advice to customers on how those events should be conducted. Its Maryland customers include[d] various chapters of the Fra*806ternal Order of Police. ” 467 U. S., at 950. The professional fundraisers in the present case presumably operate in the same manner. Yet the Court obdurately refuses to allow the various States which have legislated in this area to distinguish between the sort of incidental fundraising involved in Lovell, Schneider, and Martin on the one hand, and the entirely commercial activities of people whose job is, simply put, figuring out how to raise money for charities.

The Court has recognized that the commercial aspects of newsgathering and publishing are different from the editorial function, and has upheld regulation of the former against claims based on the First Amendment. A newsgathering organization is subject to the provisions of the National Labor Relations Act, Associated Press v. NLRB, 301 U. S. 103 (1937); a newspaper is subject to the antitrust laws, Indiana Farmer’s Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U. S. 268 (1934), as well as the provisions of the Fair Labor Standards Act, Smith v. Evening News Assn., 371 U. S. 195 (1962). It seems to me that the vaguely defined activity of “charitable solicitation,” when pursued by professional fundraisers .such as are involved in this case, deserves no more favorable treatment.

II

But even accepting that Schaumburg and Munson were rightly decided, I cannot join in the extension of their principles to the North Carolina statute involved here. This Act provides, at its heart, only that no professional fundraiser may charge a charity “an excessive and unreasonable fund-raising fee.” N. C. Gen. Stat. § 131C-17.2(a) (1986). Unlike the statute at issue in Schaumburg, which directly prevented charities from soliciting donations unless they could show that 75% of the proceeds were used for charitable purposes, 444 U. S., at 624, the fee provisions of this Act put no direct burden on the charities themselves. And, unlike the Maryland statute in Munson, the fee provisions are designed *807to allow the professional fundraiser whose fees are challenged to introduce evidence that the fees were in fact reasonable under the circumstances. In my view, the distinctions between the statute in this case and those in Munson and Schaumburg are crucial to the proper First Amendment analysis of the Act, for they make this Act both less burdensome on the protected speech activities of charitable organizations and more carefully tailored to the interests that the State is trying to serve by regulating fundraising fees.

First, as to the nature of the burden on protected speech: The Court, today concludes flatly that “this regulation burdens speech, and must be considered accordingly.” Ante, at •790. As far as I know, this Court has never held that an economic regulation with some impact on protected speech, no matter how small or indirect, must be subjected to strict scrutiny under the First Amendment'.. The only burden on speech identified in the Court’s opinion is that professional fundraisers may be “chill[ed]” by the risk that if they charge more than 20% of the gross they may be required to show that the fee they charged was reasonable. The Court speculates that this “chill” will “drive professional fundraisers out of North Carolina” or induce them to cease certain types of fundraising. Ante, at 794. Of course, it is undeniable that a price control regulation — which is what these fee provisions are, in essence — will have some impact on the supply of the services whose prices are being regulated. See Munson, supra, at 979. (Rehnquist, J., dissenting). But to say that professional fundraisers will be driven from the State is the rankest speculation; they may be a far doughtier breed than the Court realizes. I am unwilling to say, on this extremely bare record, that a statute prohibiting a professional fundraiser from charging fees that are “unreasonable and excessive” will have the sort of impact on the availability of fundraising services that the Court hypothesizes. The plaintiffs in this case had an opportunity to put in evidence in the District Court to this effect, but did not do so; we should not *808substitute our guesswork as to the economic consequences of the regulation for a conclusion that ought to be deduced from evidence.

I believe that on this record the minimal burden on speech resulting from the statute can be characterized as remote or incidental, and that therefore there is no reason to apply “heightened scrutiny” to the regulation of fees charged by the professional fundraisers. The fee provisions of the Act are rationally related to the State’s legitimate interests in preventing fraud on potential donors and protecting against overcharging of charities by professional fundraisers.

Even if heightened scrutiny should apply, the fee provisions in the North Carolina statute in my view still survive. This Court has never indicated that the State’s interest in preventing fraud would not be sufficient to support a narrowly tailored regulation of fees. See Schaumburg, 444 U. S., at 636-637; Munson, 467 U. S., at 961. Here, the State asserts the additional interest of “promot[ing] the efficient transmission of the public’s money to the charity through the medium of the for-profit, professional fundraiser,” Reply. Brief for Appellants 3, or as I put it in Munson, protecting the “expectations of the donor who thinks that his money will be used to benefit the charitable purpose in the name of which the money was solicited,” 467 U. S., at 980, n. 2.1

*809.In determining whether the North Carolina statute narrowly serves these interests, it is important to note that the statute does not impose a blanket prohibition upon fees that exceed a certain proportion of gross receipts, as did the statute in Munson.2 The basic judgment for the trier-of-fact under the fee provisions is whether the fee is “reasonable.” This determination is made not only in light of the percentages, but also in light of such factors as whether the solicitation “involvefs] the dissemination of information, discussion, or advocacy relating to public issues as directed by the [charity] which is to benefit from the solicitation,” §§ 131C-17.2(c), (d)(1), and whether the ability of the charity to “raise money or communicate its ideas, opinions, and positions to the public would be significantly diminished” by the charging of a lower fee, § 131C — 17.2(d)(2).

The inclusion of these factors in the “reasonableness” determination of the factfinder protects against the vices of the fixed-percentage scheme struck down in Munson. The limited waiver of the 25% limitation in Munson was found unacceptable because the statute gave the State “no discretion to determine that reasons other than financial necessity warrant a waiver.” 467 U. S., at 963. This meant that organizations whose high solicitation costs were a result of the dissemination of information would not be able to obtain waivers and would thus be prevented by the 25% limitation from hiring professional fundraisers. Id., at 963-964. No such problem exists here: the statute mandates that First Amendment considerations such as the desire to disseminate information and the ability of the charity to get its message across be taken into account by the factfinder in determining *810reasonableness. Thus, unlike the statute in Munson, it cannot be said that the reasonableness limitation is overbroad, as the North Carolina statute is designed and carefully tailored to avoid any restrictions on “First Amendment activity that results in high costs but is itself a part of the charity’s goal or that is simply attributable to the fact that the charity’s cause proves to be unpopular,” Munson, supra, at 967. In my view, the fee provisions of the statute thus satisfy the constitutional requirement that it be narrowly tailored to serve the State’s compelling interests. I would reverse the judgment of the Court of Appeals on this issue.

Ill

The next part of the statute to be considered is the requirement of the Act that the fundraiser disclose to the potential donor “the percentage of charitable contributions collected during the previous 12 months that were actually turned over to charity,” ante, at 795.4 The asserted purpose of this provision is to “better inform the donating public as to where its money will go” in order to assist the potential donor in making the decision whether to donate. Brief for Appellants 17. The Court concludes, after a lengthy discussion of the constitutionality of “compelled statements,” that strict scrutiny *811should be. applied and that the statute does not survive that scrutiny. I disagree.

. This statute requires only that the professional solicitor disclose certain relevant and verifiable facts to the potential donor. Although the disclosure must occur at some point in the context of the solicitation (which can be either oral or written), it is directly analogous to mandatory disclosure requirements that exist in other contexts, such as securities transactions. In my view, the required disclosure of true facts in the course of what is at least in part a “commercial” transaction — the solicitation of money by a professional fundraiser-does not necessarily create such a burden on core protected speech as to require that strict scrutiny be applied. Indeed, it seems to me that even in cases where the solicitation involves dissemination of a “message” by the charity (through the fundraiser), the disclosure required by the statute at issue here will have little, if any, effect on the message itself, though it may have an effect on the potential donor’s desire to contribute financially to the cause.

Of course, the percentage of previous collections turned over to charities is only a very rough surrogate for the percentage of collections which will be turned over by the fundraiser in the particular drive in question. The State’s position would be stronger if either in the legislative history or in the testimony in the District Court there was some showing that the percentage charged by any particular fundraiser does not vary greatly from one drive to another. Nonetheless, because the statute is aimed at the commercial aspect of the solicitation, and because the State’s interests in enacting the disclosure requirements are sufficiently strong, I cannot conclude that the First Amendment prevents the State from imposing the type of disclosure requirement involved here, at least in the absence of a showing that the effect of the disclosure is is to dramatically limit contributions or impede a charity’s ability to disseminate ideas or information. But, again, we have nothing but speculation to guide *812us here, since neither party offered any evidence as to how this provision would operate when the statute went into effect. On this state of the record, and considering the rule that “Lw]hen a statute is assailed as unconstitutional we are bound to assume the existence of any state of facts which would sustain the statute in whole or in part,” Alabama Federation of Labor v. McAdory, 325 U. S. 450, 465 (1945), I would uphold this provision.

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The final issue raised here is the validity of the licensing provisions contained in the North Carolina statute. It is beyond dispute that the statute differentiates between professional fundraisers and volunteer or in-house fundraisers; the former may not engage' in solicitation until their license application is accepted, while the latter may. But this fact alone does not impose an impermissible burden on protected speech, nor does it require that the licensing provisions be subjected to strict scrutiny.

For one thing, the requirement that a professional fundraiser apply for and receive a license before being allowed to solicit donations does not put any burden on the charities’ ability to speak. Even if the charity is one that typically relies on professional fundraisers, the effect of the statute is to require only that the fundraiser the charity hires is a fundraiser who has been licensed by the State. While this effect may limit to some degree the charity’s ability to hire whomever it chooses as its professional fundraiser, it will still be able to choose from other, licensed professionals and obtain their assistance in soliciting donations.4 To the extent, *813then, that the licensing provisions have a burden on speech, it is one that truly can be said to be incidental.5 In addition, it. is a burden that is countenanced in other circumstances without any suggestion that some type of heightened scrutiny should apply. For example, bar admission requirements may have some incidental effect on First Amendment protected activity by restricting a petitioner’s right to hire whomever he pleases to serve as his attorney, but we have never suggested that state regulation of admission to the bar should generally be subject to strict scrutiny. In my view, then, requiring a professional fundraiser to wait until its license is approved before engaging in solicitation does not create a sufficiently significant burden on speech by charities that it should be reviewed under any more exacting standard than that which is typically applied to state occupational licensing requirements.

Nor do I think that heightened scrutiny should apply because the statute allegedly has some effect on speech by the professional fundraisers themselves. It simply is not true that in this case the fundraisers are prevented from engaging in any protected speech on their own behalf by the State’s licensing requirements; the requirements only restrict their ability to engage in the profession of “solicitation” without a license. We do not view bar admission requirements as invalid because they restrict a prospective lawyer’s “right” to be hired as an advocate by a client. So in this case we should not'subject to strict scrutiny the State’s attempt to license a business — professional fundraising — some of whose members might reasonably be thought to pose a risk of fraudulent activity. As Justice Jackson put it:

*814“The modern state owes and attempts to perform a duty to protect the public from those who seek for one purpose or another to obtain its money. When one does so through the practice of a calling, the state may have an interest in shielding the public against the untrustworthy, the incompetent, or the irresponsible, or against unauthorized representation of agency. A usual method- of performing this function is through a licensing system.” Thomas v. Collins, 323 U. S. 516, 545 (1945) (concurring opinion).

In this case, the North Carolina statute’s requirement that professional solicitors wait for a license before-engaging in . any solicitation is rationally related to the State’s interest in protecting the public and the charities themselves. The State could reasonably have concluded that professional solicitors pose a greater risk of fraud, see, e. g., App. 60, making it more important that the State have an opportunity to review their license applications before they are allowed to engage in solicitation. Presumably, there is less of a risk that a charity will be defrauded or cheated by volunteer fundraisers and fundraisers who are themselves employed by the charity, as these individuals are more likely to be known to the charity. See New Orleans v. Dukes, 427 U. S. 297 (1976). I would, accordingly, uphold the licensing provisions of the statute notwithstanding its different treatment of volunteers and professionals.

I find it hard to understand the Court’s complaint that the statute’s attempts to encourage charity and charitable contributions and to maximize the funds that flow to charities are based on “the paternalistic premise that charities’ speech must be regulated for their own benefit,” ante, at 790. All economic regulation of this sort is “paternalistic” in the sense that it prevents parties who wish to contract with one another from entering into a contract on precisely the terms that they would choose. But ever since West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), finally overruled Lochner v. New York, 198 U. S. 45 (1905), and Adkins v. Children's Hospital, 261 U. S. 525 (1923), “paternalism” has been a perfectly acceptable motive for legislative regulation of this sort. Olsen v. Nebraska ex rel. Western Reference & Bond Assn., Inc., 313 U. S. 236, 246 (1941).

Neither Schaumburg nor Munson holds that the “percentage of gross receipts" figure is irrelevant to the question whether a particular fee is unreasonable or fraudulent. See Munson, 467 U. S., at 961, 966, and n. 14. The problem with the figure was that, standing alone, it was “simply too ■ imprecise an instrument to accomplish” the end of preventing fraud. Id., at 961.

In the words of the statute, the fundraiser must disclose ‘Tt]he average of the percentage of gross receipts actually paid to [charities] by the professional fund-raising' counsel or professional solicitor con- ■ ducting the solicitation for all charitable sales promotions conducted in this State by that [fundraiser] for the past 12 months, or for all completed charitable sales promotions where the [fundraiser] has been soliciting funds for less than 12 months.” N. C. Gen. Stat. 5 131C-16.K3) (1986).

The statute also contains several other disclosure provisions that are not at issue in this appeal, including a requirement that the professional fundraiser disclose his name, his employer, and his employer's address to potential donors, §§ 131C — 16.1( 1) — (2), and a requirement that any person subject to licensure under the Act disclose upon request “his percentage of fund-raising expenses and the purpose of the organization," X. C. Gen. Stat. § 131C-16 (1986).

There is absolutely no basis in the record to conclude that the licensing and registration requirements of the Act are so onerous that they would drive professional fundraisers out of the State to such an-extent that there would be none left for a charity to hire. If there were such evidence, then I would certainly agree that the licensing provisions did have the effect of restricting speech by charities, at least for those charities who rely heavily on professional fundraising.

Indeed, the record also indicates that even if the charity decides to wait until the licensing proceedings are complete in order to hire a specific fundraiser, the- charity will not have long to wait. See App. 58-62. The speed with which licensing proceedings have been handled by the State in the past belies appellees’ claim that the waiting period for professional fundraisers has a chilling effect on the charities’ right to speak.