Faculty Scholarship 1994 - Present

Professional Fundraisers Beware: There is no First Amendment Immunity for Fraud

In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., the Unites States Supreme Court unanimously decided that "States may maintain fraud actions when fundraisers make false or misleading representations designed to deceive donors about how their donations will be used. In reaching this decision, the Court clarified the reach of its three prior decisions according First Amendment protection to charitable solicitation activities, and restored an enforcement tool that enables States to combat fundraising businesses that falsely lead donors to believe their donations will be used for a purported charitable purpose. While at first blush it appears to be intuitively obvious that deceitful charitable solicitors should be held accountable for defrauding donors about how their donations will be used, the First Amendment issues surrounding professional fundraising activities are complicated, and require close analysis of the Schaumburg, Munson, and Riley trilogy, and the regulations of professional fundraisers those decisions struck down as violative of the First Amendment. The purposes of this article are to examine the Schaumburg, Munson, and Riley trilogy, and to gauge their compatibility of charitable solicitations.