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Protecting free speech


The New York Civil Liberties Union (NYCLU) and the American Civil Liberties Union (ACLU) filed a lawsuit against New York State Attorney General Eric Schneiderman and the Joint Commission on Public Ethics (JCOPE) over provisions in the 2016 Ethics Reform Law that was passed in the last hours of the legislative session that ended in June. New York Gov. Andrew Cuomo has said the law is needed to control lobbying and to regulate nonprofit groups such as the two who brought the lawsuit, and the nonprofit Public Citizen, which had earlier filed a separate lawsuit. 

The groups claim that two provisions of the law specifically targeted them because they sometimes criticize state government. The groups want a federal court to strike down those provisions because they violate the First Amendment guarantee of free speech, and the Fourteenth Amendment guarantees of equal protection and due process.

“This law was pitched as a vehicle to address the problem of money in politics, but instead of doing that, it takes aim at free-speech rights of groups like the NYCLU and ACLU and hundreds of other educational and advocacy groups and their supporters,” said NYCLU Executive Director Donna Lieberman. “The law goes way beyond lobbying or electioneering expenditures and makes public names and addresses of supporters who have nothing to do with lobbying or electioneering activities.”

The law requires that nonprofit 501(c)(4) groups—which describes both the NYCLU and ACLU—that spend more than $10,000 on any public policy communication must disclose to the attorney general the names and addresses of donors who give the organization more than $1,000 in a year. This, the groups claim, will cause them to lose donations.

Both organizations are known for supporting controversial legal cases. For example, in a case that grew out of a traffic ticket in Liberty, the NYCLU took up the case of William Barboza, who wrote a string of five offensive words across a parking ticket before mailing it back to the town. The payment was rejected and Barboza ordered to appear in person, and where he was arrested. The NYCLU argued in court that Barboza’s rights had been violated, and the court agreed.

This is the sort of case that could trigger an angry reaction in some people. The two groups have often been the targets of threats. While James Charles Kopp was on trial in 2001 for the murder of abortion provider Dr. Barnett Slepian, the NYCLU office near Buffalo, in the region where the killing took place, received an anonymous bomb threat. Further, the NYCLU and ACLU say staff members’ names had been listed on an anti-abortion site that urged followers to harm or kill abortion providers. And according to the press release, “In 2007, a man dressed in a black robe regularly appeared at the offices of the NYCLU and the ACLU in lower Manhattan. The man marched outside the building waving signs that denounced the organizations’ staff members as ‘dogs’ and ‘Jews.’ He also maintained a website that charged the organizations were parties to a Jewish conspiracy. The website includes photos of several ACLU and NYCLU staff and clients.”

It’s pretty clear that a lot of people are angrily opposed to the kind of work that these organizations perform, which is fighting to protect due process, freedom of speech and religion, immigrant rights, LGBT rights, reproductive rights and voting rights. It’s not clear to us why the state government needs to know the names of donors, or what public good such knowledge would serve, when these two groups engage in communications that don’t have anything to do with lobbying or electioneering.

Attorney General Eric Schneiderman was supposed to set up a mechanism whereby groups, such as NYCLU and ACLU that historically support controversial civil rights issues, could apply for exemptions from the law, but his office has not yet done so, and the first reporting of names and addresses of donors comes in January.

We believe that the federal court should block the implementation of the provisions of this law until and unless Schneiderman acts. In New York State, attorneys general are elected, so it also may well be possible to put some heat on Schneiderman by writing or calling his office. He could, for example, exempt from the law spending on communications that an organization sends to its members, which is issue advocacy. He could exempt all activities that are not political, such as ACLU defending or advocating for people in court. But he needs to see to it that a law intended to address ethics in Albany should not have the consequence, unintended or not, of cutting off support for groups that support civil rights.


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