Fleischer, Symmetry and Speech: Nonprofits and the First Amendment

In the spring of 2025, President Trump threatened Harvard’s tax-exempt status, accusing it of “pushing political, ideological, and terrorist inspired/supporting ‘Sickness.’” In the following months, the Administration has continued to threaten nonprofits with which it disagrees, such as those advocating critical race theory, Palestinian rights, and climate change, in a variety of ways. As this Article shows, these threats violate the First Amendment. Although this conclusion will likely be uncontroversial to most readers, stopping there misses the deeper lesson. 

More importantly, revisiting the relationship between free speech principles and nonprofits in “easy” cases such as Harvard’s yields two insights. First, it reminds us how they should apply in more fraught contexts. The guardrails that protect Harvard and progressive nonprofits also protect right-leaning organizations that progressives may view as engaging in hate speech and misinformation, no matter how heinous. Second, limiting nonprofit speech is antithetical to the role nonprofits play in our pluralistic society. Restricting it risks turning the sector into a governmental mouthpiece, which directly contradicts its role as a counterweight to governmental power. It also silences voices that challenge prevailing viewpoints, which are more likely to be labeled dangerous. This undermines the sector’s ability to provide alternative solutions to societal problems ranging from Covid-19 to climate change, and to effectuate social change. Recall, for example, that the civil rights movement began as an unpopular expression of contrarian values. These arguments should appeal across the ideological spectrum. Conservatives who are sympathetic to the Administration’s current crackdown should be wary of jettisoning the First Amendment’s guardrails, because if and when the winds change, a future administration could retaliate against them. And progressives should remember that the principles that protect them now will also protect those with whom they disagree in the future.