I, for one, will miss Justice Scalia and treasure my memories of him. No doubt many of my readers know I had the great privilege of representing the nonprofit industry before the United States Supreme Court in a case argued March 23, 1988 and decided on June 29, 1988. In that case, a number of charitable organizations joined together to challenge North Carolina limitations on the cost of fundraising and certain compelled point of solicitation disclosures.
We won the case on a majority vote of the Justices. The uncertainty of the case was heightened by the fact that Justices Scalia and Kennedy were new to the Court and had not previously participated in the earlier cases involving charities and government imposed limitations.
It turned out that both Justices Scalia and Kennedy were strong advocates of freedom of speech.
In the case now known as the Riley Decision, the Court added a footnote gratuitously stating that the unambiguous disclosure of professional status would not seem to be unconstitutional.
Justice Scalia took the majority to task for including the footnote when there was no reason to do so in his view. In fact, he said:
Compensatory employment is, I would judge, the natural order of things, and one would expect volunteer solicitors to announce that status as a selling point.… It is safer to assume that people are smart enough to get the information they need than to assume that the government is wise or impartial enough to make the judgment for them.
In 2003 the Supreme Court had the occasion to revisit the issue (among other issues) in the Madigan case where Justice Scalia was the charitable fundraising sector’s leading proponent during oral argument which resulted in a 9-0 decision on the question presented of whether the cost of fundraising and related compelled-disclosures were unconstitutional. I had the privilege of presenting the argument to the Court on that occasion as well, and appreciated his frank and straightforward treatment of the issue.
It is hard to lose such an important person who strongly advocated the issues that best support the constitutional protections that we in the nonprofit community deem so vital.