Institute for Free Speech Sues Texas Ethics Commission Over Ban on Pro Bono Work

A recent TEC opinion prohibits pro bono legal services for candidates and political committees if they are provided by nonprofit corporations

August 7, 2023   •  By IFS Staff   •  
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Dallas, TX — The U.S. Supreme Court has long recognized that the First Amendment allows pro bono lawyers to associate with clients for the purpose of litigating civil rights claims against the government. It shouldn’t matter whether free legal services happen to be offered by a nonprofit corporation.

Unfortunately, the Texas Ethics Commission (TEC) disagrees.

That’s why the Institute for Free Speech (IFS) filed a federal lawsuit against the TEC’s commissioners and executive director last week over the TEC’s ban on pro bono legal services for candidates and political committees. This ban stops organizations like IFS from advocating for the civil rights of such clients, imposing stiff civil and criminal penalties for violations. Attorneys for IFS, along with local counsel Tony McDonald and Connor Ellington of the Law Offices of Tony McDonald in Fort Worth, seek to overturn this ban.

IFS, a nonpartisan, nonprofit corporation, provides free legal representation to clients and litigates cases to promote and defend the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment. However, Texas law prohibits corporations—including nonprofits like IFS—from making “in-kind contributions” to candidates and political committees. The TEC recently interpreted this ban to extend to pro bono litigation services, even when such services aim to challenge the constitutionality of state laws.

The lawsuit argues that the TEC’s interpretation violates IFS’ First Amendment rights to free speech and association. The TEC’s reading of the law prevents IFS from representing parties like Chris Woolsey, a city councilmember in Corsicana, and the Texas Anti-Communist League PAC, headed by Cary Cheshire, both of whom want to contest a state law that compels speech on political signs.

“The TEC is an unnecessary organization that places draconian restrictions on Texans that are not found in other states,” said Woolsey. “Overturning this regulation would allow candidates for local office like myself to access the same legal resources as my counterparts across the country.”

“The TEC has created a harmful barrier for independent political organizations like ours,” noted Cheshire. “Even if IFS wants to offer free legal services to help us challenge an unconstitutional state law, this barrier makes that impossible.”

“By threatening to enforce this ban, Texas is censoring speech and protecting itself from litigation,” said Del Kolde, Senior Attorney for the Institute for Free Speech. “Our lawsuit aims to restore freedoms of speech and association for nonprofit corporations in Texas.”

The ACLU of Texas and Institute for Justice, two other nonprofit corporations engaged in pro bono litigation, previously submitted letters to the TEC arguing that the agency should permit such pro bono work.

“Texas essentially bars the courthouse doors to groups like ours, preventing challenges to unconstitutional laws,” added Kolde. “In addition, federal law guarantees a remedy for civil rights violations. But this state-imposed rule interferes with that ability to petition the government for redress.”

The lawsuit, filed in the U.S. District Court for the Northern District of Texas, seeks declaratory and injunctive relief against enforcement of the corporate contribution ban as applied to pro bono legal services.

To read the complaint in the case, Institute for Free Speech v. J.R. Johnson, et al., click here.

About the Institute for Free Speech

The Institute for Free Speech promotes and defends the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment.

IFS Staff

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