Playing Devil’s Advocate: The Constitutional Implications of Requiring Advocacy Organizations to Present Opposing Viewpoints


For more than sixty years, the Internal Revenue Service has employed a methodology test in determining whether a nonprofit organization’s advocacy of a particular viewpoint is sufficiently educational to warrant its designation as a public charity. The test’s focus is not upon the viewpoint advocated, but upon the method used by the organization to communicate its viewpoint to others. Consistent with this purpose, the Service has identified four factors that are indicative of a noneducational methodology.

The Service’s application of the test, however, suggests the existence of anadditional, previously undisclosed factor. This factor regards a refusal to present opposing viewpoints as indicative of a noneducational methodology.

This article concludes that the methodology test is unconstitutional for three reasons. First, the test is void for vagueness because it does not disclose one ofthe factors considered by the Service in evaluating whether an advocacy organization may be said to employ an educational methodology. Second, the test violates the compelled speech doctrine by requiring advocacy organizations to accommodate the very speech they are organized to oppose. Third, the test imposes an unconstitutional condition by conditioning advocacy organizations’ eligibility to receive tax-deductible contributions on the absolute forfeiture of their First Amendment rights.

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