House Bill 9495 (Part 2): How House Bill 9495 Could Harm More Than Political Speech
When the sponsors of what eventually become House Bill 9495 first introduced the legislation, they were very clear that it was in response to “hateful speech.”
To be sure, much of that speech is genuinely noxious, and many of the actors related to its cause are deeply tainted. But as Supreme Court Chief Justice John Roberts opined in a case protecting vile behavior, “we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
But this legislation does just that. It gained steam earlier this year amid a broader response to pro-Palestinian protests in college campuses, which saw members of Congress notch political wins against university presidents and the power centers they represent. Supporters of the bill have called for investigating groups linked to the protests under existing anti-terrorism laws that prohibit giving “material support” to Hamas and other terrorist organizations, even as they allege nothing more than the provision of “rhetorical support” by these groups.
But the finger-pointing didn’t just stop at student or advocacy groups – a letter by two members of Congress to Treasury Secretary Janet Yellen asked for information about the financial transactions of large foundations with broad missions, including the Rockefeller Brothers Fund, the Bill & Melinda Gates Foundation, and the Open Society Foundations, which they suspected of funding the protests and campus encampments.
This reveals a broader problem. One of the most potent forms of speech is the giving of money, and chilling the speech of a nonprofit means chilling the support it receives. This will inevitably lead to a chill in donations overall, as large philanthropies that might otherwise have donated to universities, civil rights groups, or environmental organizations will now have to either withhold support for those sectors entirely, or spend time and resources on additional due diligence and even contractual safeguards. That task will not be easy. Even the city government of Yonkers, New York, which surely does not intend to support terrorists, donated money to one of the groups named in that letter.
As a result, many corporate matching grant programs will likely be eliminated or significantly curtailed, favoring a handful of limited, large recipients at the expense of local causes that employees might normally champion. This could affect up to $10 billion in potential matching funds each year. And because match funding is the single most powerful factor in encouraging donors to give more, individual donations could drop as well.
As many of the world’s most marginalized people live in areas of political strife, they may ultimately see less humanitarian relief.
As autocrats around the world know, punishing disfavored speech chills dissent. Some countries will charge tax evasion to badger critics, and others might use bad weather forecasts as an excuse to punish the press. The U.S. is now trying to raise the specter of terrorism to do so, and it is doubtful that targeted nonprofits will find any relief through the courts. Although Justice Roberts has said “we don't rely on the good faith of the prosecutors” when a law affords broad and ambiguous powers that could be abused, his 2010 opinion in Holder v. Humanitarian Law Project belies precisely the opposite, at least when it comes to questions about support to terrorist groups. (In that case, Roberts opined that training members of designated terrorist organizations on how to use humanitarian and international law to peacefully resolve disputes constitutes criminal “material support” beyond the reach of First Amendment protections.)
These tactics come with collateral damage. Unfortunately, that damage will include schools, charities, and museums that have nothing to do with political causes.
Note: This is the second of a three-part series discussing the potential impact of the bill. In a prior post, we discussed how it could be applied to shut down disfavored nonprofits. |
President and Founder, TRACE