Nonprofit Speech Conditions: A Fairness Doctrine In Minnesota for Educational Organizations

Government can, by grant of tax exemption, create a limited public forum devoted to “charity” or “education,” and so long as its definitions are not so indeterminate as to be vague, government may define “charity” to mean “eliminating prejudice and discrimination” and “education” as “the use of epistemological methods to discover and express justified true beliefs.”  Federal law does just that for charity in 1.501(c)(3)-1(d)(2); what is less indeterminate than “do not seek to increase prejudice and discrimination”?  A hate group, for example, can’t be charitable because — by whatever speech content it selects — its purpose is the opposite of eliminating prejudice and discrimination.  Which is to say that hate groups may be denied exempt status in a content neutral manner.  There is a credible argument too that hate groups can be denied status as an educational organization under 1.501(c)(3)-1(d)(3), as that regulation is explained by the “methodology test.”  But the methodology test still suffers from vagueness problems.  For example, it says the educator cannot “distort” facts, meaning the government becomes the arbiter of truth, and then whether that truth is distorted.  Nor can the educator use “inflammatory” words under the methodology test.  Not much inflames me so an educator might say as much as he wants to me, but very little to another student.  Its insufficiently objective.

The vagueness in the methodology test is an exceedingly easy fix, we could just take out reference to “distortions” or “inflammatory” words.  There are other subjective words in the test but you get the point. We can demand, with sufficient objectivity and without referencing any particular content, a fairness doctrine for nonprofits, like the doctrine approved by the Supreme Court but repealed by Reagan; and since hate groups aren’t usually in the mood to study about a thing from every which way, they could not be deemed educational.  That’s what the methodology test is, after all, just a fairness doctrine for educational nonprofits.  Minnesota is considering this exact approach as it deliberates whether to continue funding nonprofit anti-abortion clinics, now that abortion is no longer a constitutional right.  Minnesota Democrats have gained control of government and are considering a proposal to continue funding for those centers (established by Republicans when they were in control and abortion was still a constitutional right) but only if their abortion talk meets a fairness doctrine.  Speech by the grant recipients must be:

(1) verified or supported by the weight of peer-reviewed medical research conducted in compliance with accepted scientific methods;

(2) recognized as medically sound and objective by:

(i) leading health care organizations with relevant expertise, such as the American Medical Association, the American College of Obstetricians and Gynecologists, the American Public Health Association, the American Academy of Pediatrics, the American College of Physicians, and the American Academy of Family Physicians;

(ii) federal agencies, such as the Centers for Disease Control and Prevention, the Food and Drug Administration, the National Cancer Institute, and the National Institutes of Health; or

(iii) leading national or international scientific advisory groups, such as the Health and Medicine Division and the Advisory Committee on Immunization Practices;

or

(3) recommended by or affirmed in the health care practice guidelines of a nationally recognized health care accreditation organization.

There is no opinion required or prohibited by the proposal, merely the presentation of justified beliefs. Other conditions include (1) ensuring that any information provided about pregnancy or any medical condition or procedure related to pregnancy is medically accurate, and (2) not advocating for or against any particular “birth outcome over another. When providing information  on prenatal care and delivery, infant care, foster care, adoption, or pregnancy termination, the agency or organization must provide evidence-based, accurate information.”  Rust v. Sullivan permits Minnesota to put these conditions on nonprofit speech.  And it’s reasoning would allow epistemological requirements on the “educational” activities of other charities.  Hate groups cannot meet those definitions, though they may attempt to make the task more difficult by couching their indoctrination amongst a few innocuous sources to claim fairness.  But let them try.  If their efforts are sufficient to consider their methods sufficiently epistemological, even without cleansing hate from their hearts, the requirement will have pushed their teaching methods towards presentation of justified true beliefs.  That’s all we can rightly demand or expect by law.  

darryll jones