Claiming a “yearlong campaign of political harassment and public vilification,” the Humane Society of the United States sued Oklahoma Attorney General Scott Pruitt recently regarding an investigation of the charity. An Oklahoma judge blocked General Pruitt from obtaining all but one contested document that he sought.
The Humane Society chose to go public by filing suit. Questionable, unfair or bullying investigations of nonprofits, however, usually do not get this attention. Most nonprofit leaders believe that just the publicity of a government investigation can hurt the organization. They therefore quietly acquiesce to government investigations, regardless of the matter’s merits.
Nonprofit leaders are some of the most effective critics of politicians and government policy. For that reason their organizations are especially vulnerable to government investigations used to intimidate and silence them. In a 1958 decision, the U.S. Supreme Court blocked the State of Alabama from obtaining the NAACP’s membership list because that would have a “chilling effect” on rights of association. NAACP v. Alabama is a landmark First Amendment decision.
In defending First Amendment rights against bullying or questionable investigations, too few nonprofit leaders use the Fourth Amendment, which protects against “unreasonable searches and seizures.” The Fourth Amendment is the Bill of Right that helps prevent a police state. Indeed, one historic reason why we have the Fourth Amendment is the tendency of government to intimidate and silence expressions of conscience.
Investigations by state charity officials often are ripe for Fourth Amendment challenges, but too few charity leaders employ Fourth Amendment rights.
State laws governing nonprofits come with authorization to investigate violations of those laws, of course. While authorized by statutes, such investigations nevertheless might not violate the Fourth Amendment, which applies in every state. State charity officials frequently violate this Bill of Right using “administrative subpoenas,” which are warrants issued unilaterally by state officials, meaning without authorization of judges or magistrates.
The Fourth Amendment includes protection of “papers.” The U.S. Supreme Court more than a century ago confirmed that a subpoena duces tecum, meaning a search or seizure of papers, is a warrant. The justices also made clear the need for a neutral judge to issue warrants. It would be pointless if law enforcement officials could issue their own search warrants. The Fourth Amendment guarantees this vital separation of powers for searches and seizures.
Since the Fourth Amendment was written in response to what were known as “general warrants,” which authorized random searches, warrants must “particularly describ[e] the place to be searched, and the . . . things to be seized.” Some state officials overreach in violation of this legal restriction.
Warrants may only be issued by judges “upon probable cause, supported by oath and affirmation. “Probable cause,” alternatively called “reasonable cause,” is an objective suspicion that a law has been broken. This is intended to prevent arbitrary or baseless searches that are no more than fishing expeditions used to create havoc and expense.
The Fourth Amendment requires a neutral judge because that step ensures probable cause actually exists. Administrative subpoenas issued unilaterally by state charity officials evade this requirement. That evasion lets searches proceed without probable cause in further violation of the Fourth Amendment.
Unfortunately, nonprofits managers often do not appreciate the protections of the Fourth Amendment. It does not only apply to criminal investigations. The Fourth Amendment also protects businesses and that means nonprofits, too.
The Supreme Court has recognized certain limited exceptions to the warrant requirement. Consenting to a search is one exception. Most circumstances under which administrative subpoenas are issued to nonprofits do not fit into any of the allowable exceptions to searches without lawfully issued warrants.
As already noted, many nonprofit leaders agree to provide documents in response to unconstitutional demands by state officials. This consent, however, can backfire. State officials often come back for more documents. By giving consent, Fourth Amendment protections are waived.
Nonprofit leaders who consent to unconstitutional investigations might wish to require state officials to sign a statement that the organization has not waived Fourth Amendment rights. That won’t protect documents given under consent, but allows the invoking of Fourth Amendment rights when state officials make subsequent demands.
Good law enforcement begins with law enforcement officials following the law. Ironically, subpoenas issued by state charity officials under the claim of searches to enforce the law often are themselves unlawful.
Mark Fitzgibbons is president of corporate affairs at American Target Advertising, Inc., Manassas, Va. His email is firstname.lastname@example.org