IRS and Your Politically Controversial Speakers, The

Academe, Sep/Oct 2007 by Heen, Mary L

As the IRS acknowledged in its report on the 2004 election cycle, "activities that give rise to questions of political campaign intervention also raise legitimate concerns regarding freedom of speech and religious expression." In one such case, reported by the New York Times on September 22, 2006, an Episcopal church in Pasadena, California, regarded "an IRS investigation of an antiwar sermon delivered by the church's former rector on the Sunday before the 2004 election as an attack on freedom of speech and religion." These issues have proved troublesome for the agency as well as for the organizations subjected to investigation. Investigations of churches and other nonprofits in response to news reports and complaints by watchdog groups have raised concerns about issues of free expression and religious freedom as well as undue political influence in the heightened governmental scrutiny of certain charitable organizations.

For example, six months after its February 2006 report, the IRS closed a controversial two-year probe of the tax status of the National Association for the Advancement of Colored People (NAACP). The investigation had been prompted by a July 2004 speech by NAACP chairman Julian Bond that was critical of President Bush. Freedom of Information requests filed by the NAACP revealed that the IRS investigation followed complaints forwarded to the agency by a number of Republican politicians. After its investigation, the IRS concluded that the civil rights organization continued to qualify as an organization tax exempt under section 501(c)(3).

In response to complaints that some IRS investigations or examinations were politically motivated, the IRS commissioner asked the treasury inspector general for tax administration to review the process used in handling the complaints. The inspector general concluded in a 2005 report that the IRS had consistently followed its procedures; however, the scope of the audit did not include whether the activities by the tax-exempt organizations involved potentially prohibited political activity. The audit thus provided no review of the substantive conclusions reached by the 1RS in its investigations of those charitable organizations. Uncertainty about the line drawn by the government between prohibited political activity and permissible participation in public policy debate has a potentially chilling effect on legitimate, constitutionally protected speech.

Conclusion

A firm commitment to academic freedom provides university and college communities with a principled framework for complying with tax-exemption requirements without undermining the educational value of an open campus. Faced with pressures from constituencies offended by invited speakers' views and heightened government scrutiny of political activities of tax-exempt organizations, administrators may otherwise unduly restrict the right of campus groups to hear outside speakers.

MARY L. HEEN

The IRS and Your Politically Controversial Speakers

Mary L. Heen, professor of law at the University of Richmond, is general counsel of the AAUP and has served as a member of the AAUP's Committee A on Academic Freedom and Tenure since 2003.