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You be the judge free speech vs. free enterprise. (General Rambeech).

After the mid-term elections, which were disastrous for the Democrats, one would think that the worst job in Washington would be Senate Minority Leader, with the deposed Majority LeaderTom Daschle filling the job.

You'd be wrong.

Cards of condolence should be sent to Nan Mon over at the Alliance for Justice. Mon and her team work long hours trying to keep extremist judges--right and left--from the bench.

With the Republicans controlling the White House and both houses of Congress, the parade of judicial nominees should start marching the day that the re-constituted Congress is gaveled to order in January. Talk radio stations in New York are already touting revivals of Robert Bork's nomination to the U.S. Supreme Court and the 'elevation of U.S. District Court Judge Charles Pickering to the 5th Circuit Court of Appeals.

Laws can be repealed, such as the estate tax being legislated out of existence. Even the inequities that many of the faith-based initiatives will cause can be fixed in one legislative session.

The larger issue is the make-up of the federal court system where the First Amendment has been under siege for the past 24 months. The Supremes recently agreed to hear the case of the State of Illinois v. Telemarketing Associates, which seeks to determine the role and participation of paid charitable solicitors.

The phrase that pays is "strict constructionist." President Bush has said repeatedly that those are the types of judges he will nominate to the federal bench.

In an opinion article earlier this year in The Hill, Aron reminded everyone that Chief Justice William Rehnquist's definition of a "strict constructionist" jurist when he was President Nixon's assistant attorney general in charge of vetting judicial candidates was one who would be "not favorably inclined toward claims of either criminal defendants or civil rights plaintiffs."

At least two retirements are expected on the high court this year. The country can ill-afford appointments so extreme that Justice Antonin "Nino" Scalia will look like Thurgood Marshall.

Most importantly, the nonprofit world can not stand for a country that rolls back civil rights as basic as elements of the First Amendment.

That's what the case in Illinois is all about. Nobody in the sector likes the boiler room call centers where paid solicitors generate funds and donor names, while the charities derive little or nothing financially from the effort.

But, it appears that certain members of the high court have an agenda for agreeing to hear the case. Rehnquist, for example, was the lone dissent in the recent case that allowed Watchtower Bible and Tract Society of New York and the Wellsvile, Ohio, congregation of the Jehovah's Witnesses to resume going door-to-door in Stratton, Ohio.

Some legal minds in the sector believe several of the justices would be willing to overturn landmark cases, such as Secretary of State of Maryland v. J.H. Munson Co.; Village of Schaumburg v. Citizens for a Better Environment; and Riley, District Attorney of the 10th Prosecutorial District of North Carolina v. National Federation of the Blind of North Carolina. The distinction in those cases is the difference between protecting from overly restrictive regulation of charitable speech that has not yet occurred, called prior restraint, and prosecuting speech that has already occurred as being fraudulent. It's assumed that since the charity in the Illinois cases received just 15 percent of money raised that the prosecutors consider that fraud.

It's time the sector drew its own line in the sand. These cases can not be overturned if charities are to raise the vast amounts of money needed to continue vital missions of caring, basically going places government has abandoned.

Numerous organizations will be filing friend of the court briefs in an attempt to sway the court's opinion. Get on board and, if need be, write a check to the defense fund for the Telemarketing Associates.

And while you're at it, the next time you see Nan Aron, buy her a drink. She'll need it.
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Title Annotation:how current legal climate impacts nonprofit organizations
Author:Clolery, Paul
Publication:The Non-profit Times
Geographic Code:1USA
Date:Dec 1, 2002
Previous Article:Telephone solicitation: will High Court play the percentages?
Next Article:Cloud of suspicion: tele-fundraising can be done ethically. (Option).

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