The IRS, Nonprofits, and LinkingSubmitted by matthew on Thu, 2008-08-07 20:59 |
First off, thank-you to Beth Kanter for bringing this to the collective twitterverse consciousness yesterday.
About a year ago, the IRS ruled on 501(c)3 linking to other sites. 501(c)3 organizations must stay politically neutral--they may not campaign, advocate, or otherwise endorse any political candidate. This means that (c)3s may not print pamphlets, engage in fundraising, and so forth in support of a candidate.
Last year's ruling indicates that because an organization has control over what sites they link to, then the organization is (while the link exists) is forever responsible what is on the linked site.
An organization has control over whether it establishes a link to another site. When an organization establishes a link to another web site, the organization is responsible for the consequences of establishing and maintaining that link, even if the organization does not have control over the content of the linked site.
It goes on to indicate that in order to limit risk, that organization should monitor all linked sites to ensure that they don't cross the IRS rules of non-partisanship.
Because the linked content may change over time, an organization may reduce the risk of political campaign intervention by monitoring the linked content and adjusting the links accordingly.
This kind of ruling simply makes it dangerous for a (c)3 to ever link to an external site because who knows when another site might add or change content. This leaves the (c)3 at risk of losing its designation. I can't think of a single Nonprofit with a Web presence that doesn't link to other sites. This is akin to having been friends with a person in High School--perhaps you exchange holiday cards. This person commits fraud 20 years later and you are held as an accomplice because you know this person.
It is not uncommon for a 501(c)3 to have a wholly independent sister nonprofit designated as a 501(c)4--nonprofits that are focused on an issue or issues. Examples of (c)4s include:
- AARP
- Democratic Leadership Council
- League of Conservation Voters
- MoveOn.org
- National Rifle Association
If a 501(c)3 has a relationship with a (c)4, they may well find themselves not being able to link to an organization that they have strong ties to.
It is also unclear what the implications are for organizations that have Web 2.0 technologies like forums or allow for comments. Is the (c)3 responsible for the user generated content that is posted on those forums? It seems that control over what is on one's own site would have more impact on the nonprofit's compliance than what is on another entity's site. But in many cases the sheer quantity of content that is generated would preclude the organization from being able to monitor the content. It seems that a Web 2.0 savvy 501(c)3 is courting disaster if it uses those tools.
The ruling also has implications on individuals or organizations that aren't 501(c)3 designated. For example, much of what I write is directed towards the non-profit community. I want members of the community to link to my site, specific posts, and so forth. I find myself now, in the unenviable position of having to think twice before writing anything that is partisan towards any candidate even if one candidate clearly supports things important to the nonprofit community. I could find myself censoring what I write to help protect the organizations that I care about.
I am interested in other people's opinions on this. Does this seem fair?
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I disagree
I think the highlighted passages, while threatening, miss the real meat of this ruling.
They go on to give two scenarios where orgs link to candidate-related material without violating their exempt purpose: one is a voter guide that links to all known candidate sites and the other is when you link to an article relevant to your exempt purpose on a newspaper's site that also has editorials favoring candidates somewhere on the site. I read this to mean that if my organization, which is a nonprofit association of nonprofits, links to your article about the IRS ruling, to inform our members about the ruling, we're in the clear even if you proudly profess your support for Tom Tancredo elsewhere on the site. While the link path from the article to the pro-candidate content may be shorter on your site than on the MSM paper, I think the principle is the same.
In terms of the ominous bit about "Because the linked content may change over time..." I think the lesson to draw from that is to use what is smart linking behavior anyway. Don't link from your animal shelter's site to a dynamic home page on the day they're featuring cute puppies, because the next they may be featuring Cynthia McKinney for President. Avoiding the wrath of the IRS isn't the primary reason to avoid making that link, a desire to have your web site make some basic sense is. So link only to non-partisan content, and use permalinks and you're probably okay.
As far as user-generated comment, I am NOT an attorney, but it seems to this interested lay person that it's reasonable to expect that 47 U.S.C. sec. 230(c)(1) would apply here to protect nonprofits from liability for their users' posts and links. "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This law has protected message boards from libel claims in the past, and seems directly relevant.
Finally - for all the fretting and accusing and finger-pointing from different organizations, the IRS just doesn't take 501(c)(3) status away capriciously. Only the most blatant of violations have resulted in loss of status. Certainly that's subject to change, and we all have an ethical and legal obligation to keep our organizations operating within the law. But I don't see anything in this ruling that makes me fret for the way my organization currently links to external content, and I'd encourage other organizations to think carefully about what's going to advance their mission before adopting a defensive or conservative policy based on this ruling.
Thanks for your thoughts
I appreciate your taking the time to compose a thoughtful response to this post.
It would seem that 47 U.S.C. sec. 230(c)(1) should also cover a nonprofit who has initially linked to helpful material that has shifted in tone to be being partisan. I think that the ruling points in the opposite direction.
Now, these are all hypotheticals. I don't believe the "sky is falling", but I do think that (c)3s need to think twice about linking to other content.
I do question the fairness of holding one party responsible for the content of another party when the first party has no control over the first party's materials.