NOTE: This text was converted to HTML/Web format from a copy of the electronic file used to print the official document that was submitted to the court. This text was not derived from the official printed document itself, and may not be considered a legal copy of the official document. Although the text itself is believed to be identical to that of the originating electronic file, the nature of HTML format makes the exact layout of the text on the page somewhat unpredictable. As a result, this text will not exactly duplicate the appearance of the official printed document, and page numbers in particular should be discounted.

Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction

A. Introduction

The state of Connecticut is using its Unfair Trade Practices Act ("CUTPA"), C.G.S. Sections 42-110a et seq., to regulate charitable speech when used to solicit support from the general public. Charitable speech is fully protected under the First Amendment, and CUTPA is a patently impermissible means of regulating this clearly protected First Amendment activity. As a result, the Defendants are causing immediate and irreparable harm to American Charities for Reasonable Fundraising Regulation, Inc. ("ACFRFR"). Accordingly, ACFRFR moves this court for preliminary relief enjoining the Defendants from using CUTPA to regulate charitable speech until this action is resolved.

B. Background

ACFRFR is a nonprofit charitable organization which acts on behalf of its numerous member charities in connection with regulatory issues. See Affidavit of Rita Smith, attached hereto as Exhibit "A." Some of its charity members currently distribute public information materials and solicit support in the state of Connecticut and are either refraining from speaking in the State or alternatively are exposed to civil punishment for engaging in this constitutionally protected activity through the government’s use of CUTPA. Other charities who would conduct similar activities are deterred from speaking in the state because of the chilling effect this regulatory scheme imparts. The result of this regulatory regime is that the expression of ideas and causes are not being spoken nor heard in the State of Connecticut.

On behalf of itself and its members, ACFRFR commenced this action against the state officials in charge of CUTPA enforcement (the Attorney General and the Commissioner of Consumer Protection) to enjoin their use of CUTPA in connection with charitable speech and solicitation, and to have the statute declared unconstitutional as applied to this activity.

C. Standing of ACFRFR

The idea that an organization might be able to assert the rights of its members separate and apart from any direct injury to itself has roots in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 1170 (1958). In several cases that made their way to the Supreme Court, the NAACP was allowed to assert the nearly identical rights of its members in preventing the compelled disclosure of membership lists to state officials. The present day doctrine of associational standing, under which an organization may sue to redress its members' injuries, even without a showing of injury to the association itself, comes out of a trilogy of cases decided by the U.S. Supreme Court. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197 (1975); Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2424 (1977); and International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. Brock, 477 U.S. 274, 106 S.Ct. 2523 (1986).

In Seldin, various individuals and several organizations sued the town of Rochester, alleging the unconstitutionality of the town's zoning ordinances. The District Court dismissed on both standing and failure to state a claim upon which relief can be granted and the Second Circuit affirmed on the standing ground alone. The Supreme Court affirmed, also on the grounds of lack of standing. As to the associational plaintiffs, the Supreme Court held that:

[E]ven in the absence of injury to itself, an association may have standing solely as the representative of its members....The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit....So long as this can be established, and so long as the nature of the claim and the relief requested does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction."

95 S.Ct. 2211-2. As distinguished from ACFRFR in the case at bar, in Seldin, the associational plaintiffs had asked for monetary damages for past injuries to the members, rather than an injunction and/or declaratory relief. Such damages are necessarily peculiar to each individual injured person, and consequently the court denied the associations standing to present the claims. Id. at 2213-5. The relief sought by an association suing on behalf of its members must be of the injunctive or declaratory variety (as ACFRFR’s is in the instant case), so that the remedy if granted will reasonably inure to those members of the association actually injured. Id. at 2213.

Two years later, in the case of Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.C. 2434 (1977), the Supreme Court set forth the test used today for associational standing. The Washington State Apple Advertising Commission, a government organization that was the functional equivalent of a trade association, brought suit against the state of North Carolina, alleging that a statute which had the effect of prohibiting the display of Washington State apples on closed containers shipped into the state, violated the Commerce Clause. In rejecting North Carolina's argument that the Commission did not have standing to maintain the action, the Supreme Court set forth a three prong test for organizational standing:

"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the individual participation of individual members in the lawsuit."

97 S.Ct. at 2441. The Supreme Court found that the Washington State Apple Advertising Commission had standing to present its claims on behalf of the apple growing industry, and further held that the North Carolina statute violated the Commerce Clause.

The third case of the trilogy was International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. Brock, 477 U.S. 274, 106 S.Ct. 2523 (1986). In that case, the UAW brought suit on behalf of its members, challenging a Department of Labor policy which did not permit the week in which the employee drew nonregular wages to be considered a week of employment for the purposes of determining eligibility for certain trade readjustment allowance benefits. The Court reiterated the test that had been set forth in Hunt as the one to be applied for purposes of determining associational standing, and found that the UAW clearly satisfied all three requirements. 106 S.Ct. at 2529-32. Moreover, the Court rejected the Secretary of Labor's argument that the Hunt test be thrown out, and that members of an association with common issues of law or fact against the same defendant be permitted to proceed only pursuant to the rules on class actions. The Court held that there are special features advantageous to both the individuals represented and the judicial system as a whole that distinguish suits by associations on behalf of their members from class actions. Id. at 2532-3. Consequently, the Court explicitly reaffirmed the vitality of the Hunt test, and rejected the argument that associational standing be jettisoned in favor of the class action.

Addressing the Hunt factors directly, it is clear from the affidavit of Rita Smith that at least some of ACFRFR’s members have suffered injury as a result of the Defendants’ unconstitutional application of CUTPA and other laws relating to charitable solicitation. It is also clear from Rita Smith’s affidavit that defending the First Amendment rights of its members is very germane to ACFRFR’s charitable purposes. See Affidavit of Rita Smith, attached hereto as Exhibit "A." Finally, ACFRFR only asks for declaratory and injunctive relief, so the individual participation of ACFRFR’s members is not required to dispose of the claims asserted by ACFRFR.

Moreover, standing rules are somewhat relaxed in the context of First Amendment challenges grounded in overbreadth. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826 (1980); Secretary of State of Maryland v. Munson, 467 U.S. 947, 104 S.Ct. 2839 (1984). Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of others not before the court. Schaumburg at 634; Munson at 953-60. ACFRFR bases its standing to challenge Connecticut’s regulations on the analysis of the Hunt factors listed above, and on the chilling effect caused by the substantial overbreadth of CUTPA (as outlined below).

D. Standard of review

In this Circuit, to obtain a preliminary injunction against governmental action taken in the public interest under a statutory or regulatory scheme, the moving party must not only demonstrate that irreparable harm is present, but also must show that it is likely to succeed on the merits once the case is finally adjudicated. Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 (2d Cir. 1990); Plaza Health Lab, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989). The loss of First Amendment freedoms constitutes irreparable harm as a matter of law under Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673 (1976); see also, Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393, 108 S.Ct. 636 (1988). As will be explained in greater detail below, ACFRFR’s First Amendment challenge to the Defendants’ use of CUTPA is manifestly sound. In order for the state of Connecticut to resist the Plaintiff’s instant motion, it will have to show that its exercise of its police power only restricts or chills First Amendment rights with the minimum intrusion necessary to achieve a compelling government interest. 815 Foxon Road, Inc. v. Town of East Haven, 605 F.Supp. 1511, 1516 (D.Conn. 1985). A regulation negatively impacting on a First Amendment right is presumptively invalid unless the restriction is as narrowly drawn as possible. Id. at 1516-1518 (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639 (1963). Thus, the normal presumption of validity accorded to legislation is reversed. Speiser v. Randall, 357 U.S. 513, 526-9, 78 S.Ct. 1352 (1958)("[w]here the transcendent value of speech is involved, due process certainly requires...that the State bear the burden of persuasion"). As the following argument will show, CUTPA intrudes on ACFRFR’s First Amendment rights far more than the minimum amount necessary to achieve legitimate government purposes, and as such is by no means narrowly tailored. Thus, there is little question as to ACFRFR’s ultimate success on the merits. Accordingly, ACFRFR is entitled to the preliminary injunctive relief it is seeking.

E. ACFRFR’s and its members’ activities are fully protected speech under the First Amendment, regulation of which is subject to the most exacting level of judicial scrutiny

It is well-settled law that charitable appeals for funds are fully protected under the First Amendment. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826 (1980). In analyzing forty years of Supreme Court jurisprudence on the subject, the Schaumburg court held that prior authorities clearly establish

"that charitable appeals for funds...involve a variety of speech interests...that are within the protection of the First Amendment. The issue before [the court] is not whether charitable solicitations...are within the protections of the First Amendment. It is clear that they are."

Schaumburg at 632-3.

It is also axiomatic that laws which attempt to regulate speech that is fully protected under the First Amendment must be subjected to the highest level of judicial scrutiny. Secretary of State of Maryland v. Munson, 467 U.S. 947, 104 S.Ct. 2839 (1984). Although within strict limits states are permitted to regulate charitable speech activities, such regulations must be undertaken with a due regard for the fact that those activities are core speech entitled to the highest level of judicial protection. Munson at 959-60. Munson also makes clear that states cannot circumvent the strict scrutiny test by regulating a charity’s commercial agents who purvey the charitable speech to prospective donors. Munson at 954-9.

The Supreme Court subsequently held that the teaching of Schaumburg and Munson was that a charitable appeal for funds, regardless of how presented, is an integrated whole, all of which is entitled to core speech (as opposed to commercial speech) treatment under the First Amendment. Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781, 108 S.Ct. 2667 (1988). In Riley, the court noted that although fundraising communications combine economic and charitable aspects, the two were "inextricably intertwined," and as such any regulation of the commercial component necessarily triggered the same level of scrutiny as would be applied to the charitable component. In treating the commercial component of the charitable solicitation as fully protected core speech under the First Amendment, Riley held that

"we do not believe that speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech....[t]hus, where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase."

Riley at 796.

It is clear that ACFRFR’s members charitable solicitations, in all of their forms, are fully protected core speech under the First Amendment. The applicable test as to whether regulation of such speech is permitted is extremely exacting. See Schaumburg, Munson and Riley, supra. Such regulations cannot be sustained unless the government demonstrates that they serve a sufficiently compelling interest that the government is entitled to protect, and that they are "narrowly drawn" to further that interest without unnecessarily interfering with First Amendment freedoms. Schaumburg at 636-7. Furthermore, if more "benign and narrowly tailored options" are available, a less benign and less narrowly tailored option will not withstand scrutiny. Riley at 800. As will be shown below, CUTPA does not pass muster under that test. Nevertheless, the Defendants have attempted to use it to regulate charitable activities. Such a regulation is clearly unconstitutional, and makes ACFRFR’s challenge very likely to succeed on the merits.

E. CUTPA does not pass the strict scrutiny test applied to regulations of charitable speech

The Supreme Court has held that when the government regulates solicitation activities implicating First Amendment values, "‘[b]road prophylactic rules in the area of free expression are suspect,’ and ‘[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.’" In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 1905 (1978)(citing NAACP v. Button, 371 U.S. 415, 83 S.Ct. 3289 (1963)). Even if the legislative purpose is a legitimate one of substantial government interest, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252-3 (1960)(striking down an Arkansas law compelling teachers to disclose all organizations to which they belonged or contributed within the past five years, on the grounds that, inter alia, "the unlimited and indiscriminate sweep of the statute...[went] far beyond what might be justified in the exercise of the state’s legitimate inquiry"); Riley, supra, at 800 (holding that if more "benign and narrowly tailored options" are available, a less benign and less narrowly tailored option will not withstand scrutiny). Due to the importance of free speech in a free society, even where the state has power to regulate in a particular area, such authority must be exercised in such a way as to not unduly infringe protected freedoms while attaining a permissible government objective. Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903 (1940); see also, Foxon Road, Inc. v. Town of East Haven, 605 F.Supp. 1511, 1516 (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639 (1963)(holding that "[a] free flow of ideas is so intrinsically the essence of this nation’s strength, so ultimately the embodiment of individual freedom that its curtailment is allowed only to the extent necessary to accomplish a compelling, legitimate governmental purpose")).

Courts have developed the doctrines of vagueness and overbreadth to deal with these special First Amendment concerns. An overbroad statute is one that is designed to burden or punish activities that are not constitutionally protected, but which include within their scope protected activities. Hill v. City of Houston, 764 F.2d 1156 (5^th Cir. 1985), aff’d, 482 U.S. 451, 107 S.Ct. 2502 (1987). Vague statutes are similar in that they are susceptible to sweeping and improper application. NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 38, 338 (1963). Vague laws that do not have clear guidelines vest their enforcers with the discretion to arbitrarily restrict First Amendment freedoms. Kolendar v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858-9 (1983). Such laws pose a direct threat to the free dissemination of ideas embodied in a charity’s public education campaign, because persons who might wish to engage in expression protected by the First Amendment are deterred in their inclination to speak by a "sword of Damocles hanging over their heads." Hill v. City of Houston, supra, at 1161. The Supreme Court has held that the First Amendment needs breathing space to survive, so government may regulate in the area only with narrow specificity, and stricter standards apply . NAACP v. Button, supra; see also Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755 (1976). When government regulations restrict or chill the exercise of First Amendment rights, they are presumptively invalid unless the government can show that the regulation constitutes the minimum intrusion on those rights necessary to achieve the government’s compelling purpose. Foxon Road, Inc. v. Town of East Haven, 605 F.Supp. 1511, 1516 (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639 (1963)); see also, Speiser v. Randall, supra. Accordingly, even if CUTPA is aimed at advancing a sufficiently substantial government interest,¹ its sweep must not be so broad that it unduly inhibits or punishes speech protected by the First Amendment. Metaphorically speaking, the state may not use machine guns to kill gnats, no matter how legitimate it may be for the government to protect the public from gnats.

The Defendants cannot seriously dispute CUTPA’s vagueness. In prohibiting "unfair and deceptive methods of competition and unfair and deceptive acts in trade or commerce," the Connecticut legislature did not even bother to specifically define what in fact it was prohibiting. See Connecticut General Statutes Section 42-110b(a); see also, Associated Inv. Co. Ltd. Partnership v. Williams Associates IV, 645 A.2d 505, 510, 230 Conn. 148 (1994)(holding that the drafters of CUTPA deliberately chose not to define the scope of unfair and deceptive acts proscribed by CUTPA so as to encompass all unfair acts, even those not then conceived of by the legislature)(emphasis added). Instead, the legislature left it to the courts and to the Commissioner of Consumer Protection to define exactly what conduct CUTPA actually forbids.² That delegation leads to several constitutional problems when applied to the speech of nonprofit organizations.

First, the delegation grants a broad degree of discretion to the courts and to the Commissioner. Although 42-110b(b) does provide some semblance of a standard for how that discretion is to be exercised (i.e., that constructions of 42-110b "shall be guided by the interpretations of the FTC Act given by the FTC and the federal courts"), it still leaves a wide latitude of discretion in the courts and the commissioner.³ In case there is any doubt as to this point, 42-110b(d) resolves it in favor of broad discretion:

"It is the intention of the legislature that this chapter be remedial and be so construed."

The Connecticut courts have seized upon this language to broadly apply CUTPA to a wide range of commercial conduct.⁴ However, it is simply not the case here that CUTPA is needed to remedy wrongs that may not be actionable under other bodies of law. Charities are already prohibited from engaging in fraudulent solicitations under Connecticut General Statutes 21a-190a et seq.⁵ While the government may have an interest in protecting the public from unfair and deceptive acts or practices in the conduct of trade or commerce, it cannot trample on the "core speech" First Amendment rights of nonprofits in order to accomplish that objective when less restrictive means are available.⁶

The broad latitude of discretion granted to the courts and to the Commissioner is exemplified by the definition of "unfair or deceptive act or practice" that has developed in the courts. That definition has become known as the cigarette rule.⁷ Under this rule, courts look to the following to determine whether an act is unfair or deceptive:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by the statutes, the common law, or otherwise, i.e., in other words, whether it is within some penumbra of common law, statutory, or other concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; or (3) whether it causes substantial injury to consumers.

See Stamford Hospital v. Farenga, 2 CSCR 789 (July 6, 1987)(quoting Mead v. Burns, 199 Conn. 651, 664 (1986)). While this rule may or may not satisfy the more deferential standard of review generally afforded to regulations of commercial activity, it clearly fails to pass constitutional muster when applied to charitable speech.⁸ Instead of the constitutionally mandated narrowness and precision, the cigarette rule demands that speakers guess as to whether the speech they are planning will subsequently be held unlawful (even though it has not been considered unlawful in the past), and speculate about prohibitions lurking within "penumbras," "concepts of unfairness," and someone else’s notion of "morality and ethics." It is difficult to conceive of a less narrow and more imprecise rule or a larger muzzle on core speech. However, speakers have a constitutional right to be sufficiently apprized of the speech that is supposedly forbidden. Broadrick v. Oklahoma, 413 U.S. 600, 93 S.Ct. 2908 (1973). Where this right is not accorded, speakers such as ACFRFR’s members are deterred from engaging in activity that enjoys the Constitution’s fullest protection, and fully protected speech is thereby chilled. CUTPA and the judicially fashioned cigarette rule has precisely this effect.

Under the first prong of the first definition contained in the cigarette rule, the courts and the Commissioner are given almost absolute discretion to label an act or practice as "unfair" or "deceptive" and thus in violation of CUTPA. The act or practice need not have even been previously considered unlawful for a court to find it violative of the statute’s prohibition. Bailey Employment System, Inc. v. Hahn, 545 F.Supp. 62, 71 (D. Conn. 1982); Murphy v. McNamara, 416 A.2d 170, 36 Conn. Supp. 183 (1979)(holding that CUTPA is meant to be liberally construed, and that the practices it condemns are not confined to those that were illegal at common law or prohibited by statute). Hence, someone soliciting contributions on behalf of a charity cannot know whether the solicitation will be considered to violate CUTPA (since by this definition an act need not have been previously declared unlawful). Also, the second prong of this definition, which merely prohibits acts that "offend public policy" or are within some "penumbra of unfairness," does not sufficiently apprize charitable speakers of the specific actions the Act makes unlawful prior to their engaging in protected speech activities (not to mention that this is censorship at its most basic level). Furthermore, prohibiting charitable speech on the basis that it falls within some "penumbra of unfairness" creates even more discretion than the statute the Supreme Court struck down in Riley.⁹ Such vagueness and overbreadth have inhibited ACFRFR’s members from sending public education materials into the state of Connecticut, thereby making "the free dissemination of ideas...the [real] loser." Hynes v. Mayor of Oradell, 425 U.S. 610, 621 (1976). See Affidavit of Rita Smith, attached hereto as Exhibit "A."

As to the second and third prongs of the definition set forth in the cigarette rule, they suffer from the same infirmities. Whether a solicitation is "immoral," "unethical," "oppressive" or "unscrupulous" vests far too much discretion in the hands of the person who gets to define exactly what those terms mean. Similarly, whether something "causes substantial injury to consumers" is far too vague a definition for the government to use when it attempts to regulate fully protected First Amendment activities. Such vagueness is contrary to the Supreme Court’s requirement that regulations of First Amendment activities be accomplished "only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338 (1963).

More importantly, CUTPA also grants the enforcers of the Act unbridled discretion to restrain speech by issuing cease and desist orders without court supervision. See 42-110d (granting the Commissioner the power to issue cease and desist orders against any person the Commissioner believes is violating the Act) and 42-110m (giving the Attorney General the power to, inter alia, enforce violations of the Commissioner’s cease and desist orders). However, the Supreme Court has held that when a government official has the power to effect a prior restraint on speech, the following safeguards are necessary in order to prevent the possibility of censorship: (1) the censor must have the burden of proving speech it wishes to restrain is unprotected by the Constitution; (2) any restraint issued prior to a judicial determination must be limited to the preservation of the status quo for the shortest amount of time possible; and (3) the burden must be on the government official to go to the courts to restrain the speech it wishes to suppress. Freedman v. Maryland, 380 U.S. 51, 58-9 (1965); see also Famine Relief Fund v. State of West Virginia, 905 F.2d 747, 753 (4^th Cir. 1990)(holding that Freedman v. Maryland principles apply to government prior restraints of charitable speech). The Defendants’ power to issue and enforce cease and desist orders against charitable speakers without judicial supervision violates the First Amendment on its face.

The regulations that the Commissioner has developed for restricting charitable speech further shows how sweeping CUTPA is in delegating virtually unbridled powers to its enforcers. Although not aimed specifically at nonprofits alone, the Commissioner has chosen a particular form of charitable speech which he has singled out for regulation: charitable sweepstakes. Under Regulation 42-110b-23, anyone sending a sweepstakes (whether charitable or not) into Connecticut is prohibited from using the words "winner," "selected," "contest," sweepstakes," drawing," or other competitive enterprise if "in fact the enterprise is simply a promotional scheme designed to make contact with prospective customers, or all or a substantial number of those ‘entering’ receive the same prize’ or ‘opportunity.’" There are several problems with using this regulation in the context of charitable speech.

First, when a charity decides to disseminate its message by means of a sweepstakes, it is by definition a "promotional scheme designed to make contact with prospective customers [i.e., donors]."¹⁰ Hence, the Commissioner is simply prohibiting all such solicitations from containing certain words of which the government does not approve. This is a content based regulation of speech that is blatant censorship and undoubtedly a prior restraint on speech. Chicago Police Dept. v. Mosley, 408 U.S. 92, 92 S.Ct. 2286 (1972). Furthermore, this regulation is constitutionally infirm because it discriminates against smaller and less popular charities which must rely on sweepstakes type promotions to develop an audience for their charitable message. See Riley, supra, at 799-800.

Moreover, because every charitable sweepstakes is designed to make contact with prospective supporters of the charity’s mission, the Commissioner receives what amounts to unfettered discretion to punish those whose messages it disapproves most.¹¹ Such a licensing scheme must necessarily fail in the context of First Amendment activities. See Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666 (1938); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734 (1965); and Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 328 (1951)(Frankfurter, J., concurring)(holding that the licensor’s net must not be cast too broadly, and that a licensing standard which gives an official authority to censor the content of speech differs materially from one limited to valid time, place, and manner restrictions). The state of Connecticut may not pursue its objectives by means that so fundamentally stifle First Amendment freedoms when more narrow and precise means are available. See In re Primus, and NAACP v. Button, supra.

There is no necessary connection between the use of these prohibited words and a "strong state interest" sufficient to subordinate a charity’s First Amendment rights. It is simply not the case that every charitable sweepstakes that uses these words is fraudulent, creates donor misperception, or is "unfair" simply because it employs the offending words. The Defendants cannot overcome the presumption of unconstitutionality that attaches to prior restraints of speech with their own personal presumptions about what does and does not constitute a legitimate charitable message. Near v. Minnesota, 283 U.S. 697 (1931); Freedman v. Maryland, 380 U.S. 51, 57 (1965)("any system of prior restraints of expression comes to this court bearing a heavy presumption of unconstitutionality")(citation omitted). Particularly where charitable speech is concerned, "the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers." Riley, supra at 791; see also Caroroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 180-1 (1968)(holding that when a prior restraint is at issue, "[o]rdinarily the State’s constitutionally permissible interests are adequately served by criminal penalties imposed after the freedom to speak has been so grossly abused that its immunity breached).

Additionally, this regulation will also likely be held void for vagueness. Since the distinction between a "legitimate contest, sweepstakes, drawing or other competitive enterprise" and a "promotional scheme designed to make contact with prospective customers" is non-existent, a person of ordinary intelligence cannot know if his mailing violates the regulation until after the prosecutor decides to prosecute. Broadrick v. Oklahoma, 413 U.S. 600, 93 S.Ct. 2908 (1973); United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808 (1954); Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294 (1974); Hynes v. Mayor of Oradell, supra. Moreover, none of the terms that the Commissioner uses in the regulation are sufficiently defined, and in the context of the strict scrutiny test under the First Amendment, the burden is on the government to refrain from defining terms in an overly broad manner. See Schaumburg, Munson, and Riley, supra; see also, NAACP v. Button and Hynes v. Mayor of Oradell, supra.

ACFRFR’s challenge to the statutory regulations of sweepstakes under 42-295 et seq. is similarly likely to succeed. Under 42-297, any person advertising a sweepstakes is compelled to publish

(a) "...in immediate proximity and in at least the same size and face type as the description of each prize in the advertisement: (1) the verifiable retail value of such prize; (2) if the element of chance is involved, the odds of winning such prize in Arabic numerals as a fraction or ration, or, if the odds depend upon the number of entries received, a statement that the odds depend upon the number of entries received; whether receipt of the prize is restricted or qualified in any way..."

(b) "clearly and conspicuously the name and address of the promoter and sponsor of the sweepstakes, and (2) any conditions or restrictions on the eligibility to receive the prize, including but not limited to age, residence, employment, or marital status."

Section 42-300 further provides that violation of this statutory provision is deemed an unfair trade practice under 42-110b.

It is clear under the Riley decision that mandating speech which a speaker would not otherwise make necessarily alters the content of the speech, and that there is no constitutional difference between compelled speech and compelled silence. Riley at 795-7 (citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831 (1974)). Hence, the disclosure requirements of Section 42-297 mentioned are content based regulations of protected speech that must pass the strict scrutiny test if they are to survive judicial scrutiny. Id.; see also, Chicago Police Dept. v. Mosley, supra. The compelled speech required by these disclosure requirements violates the First Amendment in several ways.

First, the term "immediate proximity" is vague and as such vests an unbridled discretion in the person enforcing that provision. What is meant by "immediate proximity" is not specifically defined in the statute, and thus the statute gives the Defendants the power to arbitrarily and selectively enforce the Act. In fact the Defendants have sought to enforce this provision by requiring that the mandated disclosures be reprinted in each and every place where the prize offered is mentioned. See Affidavit of Rita Smith, attached hereto as Exhibit "A." In contrast, ACFRFR’s members believe that disclosing the information once in a clear and conspicuous way is enough to satisfy the requirements of the statute. However, the Defendants have made clear that non-compliance with their position will result in prosecution. See Affidavit of Rita Smith, attached hereto as Exhibit "A." Thus, ACFRFR’s members are left with the choice of either guessing at what "immediate proximity" means and hoping that a court will subsequently agree with them, or alternatively of obeying the whims of the Defendants and repeating the same disclosures throughout their mailings. This threat is amplified by the fact that CUTPA permits the Defendants to punish conduct not previously declared unlawful. See Bailey Employment System, Inc. v. Hahn, 545 F.Supp. 62, 71 (D.Conn. 1982); and the discussion supra regarding the cigarette rule. This regulation of core speech activities does not meet the narrow specificity requirement articulated in NAACP v. Button, supra.

In addition, compelling such repeated disclosure of identical information serves no government interest, significantly interferes with the message sent by ACFRFR’s members, and thus effectively silences their speech. When a charity disseminates information and appeals for funds from the public, it only has a limited amount of time to get its message to potential supporters before they make the decision of whether to take action to help the cause. The fact that the statements that the Defendants seek to compel are factual does not lighten their impact on the fully protected speech of ACFRFR’s members. See Riley at 797-8 (although factual information might be relevant to the listener and could encourage or discourage the listener from making a contribution, a law compelling disclosure that would clearly and substantially burden the protected speech is unconstitutional); see also, McIntyre v. Ohio Elections Commission, 514 U.S. 334, 348, 1995)(holding that the state’s interest in providing the public with additional and relevant election information does not justify a requirement that a speaker make statements she would otherwise omit). These disclosures are a far cry from the limited disclosure requirement sanctioned by the Riley court (approving in dicta a requirement that professional fundraisers disclose their professional status). See Riley at 799 fn. 11.¹² They substantially interfere with the message ACFRFR’s members wish to communicate with their prospective supporters, and also lead to increased financial costs associated with each mailing into the state of Connecticut.¹³ Most importantly, they discriminate against smaller and less popular charities which must rely on sweepstakes type promotions in order to develop an audience for their charitable message. Hence, the mandated disclosures required by 42-295 et seq. cannot be sustained under the First Amendment.

Accordingly, CUTPA is a vague and overbroad statute that cannot survive the strict scrutiny test. While Connecticut may have the power to regulate "commercial" business conduct with a statute such as CUTPA, the statute is vague and overbroad in the context of charitable speech. Schaumburg holds that where a state or local law substantially abridges the rights of other parties not before the court, the strong medicine of overbreadth may be applied to invalidate the entire statute, even if constitutional applications of that statute exist. Schaumburg at 633-6. In Schaumburg it was sufficient that a "class of charitable organizations" to which the ordinance there at issue could not be applied was sufficiently substantial to support an overbreadth challenge. Schaumburg at 635. CUTPA applies not just to a class of charitable organizations, but rather to all charitable organizations, and hence is even more susceptible to an overbreadth challenge. It is clear that CUTPA cannot be constitutionally applied to charitable speech.¹⁴

Finally, it should be noted that even if the State is barred from using CUTPA from regulating charitable speech, fraudulent solicitations by charities are already prohibited under other Chapters of the Connecticut General Statutes. See Connecticut General Statutes 21a-190a et seq. (hereinafter, the "Charitable Solicitations Law"); see also, McIntyre v. Ohio Elections Commission, 514 U.S. 334, 349-51, 115 S.Ct. 1511 (1995)(invalidating an Ohio statute that prohibited the distribution of anonymous campaign literature, on the grounds that, inter alia, the state had other laws that prohibited fraud and libel, and thus the statute at issue was not the state’s principal weapon to protect the public). The Charitable Solicitations Law is a comprehensive regulatory scheme crafted to take into account the special constitutional problems associated with regulating charitable speech under Schaumburg, Munson, and Riley, supra.¹⁵ As is clear from the holding in Riley, finding that CUTPA cannot be constitutionally applied to charitable speech will not mean that Connecticut is powerless to regulate fraudulent charitable solicitations. Connecticut may also use its antifraud statutes and its common law to punish specific instances of fraud. Riley at 795. However, "fraud" differs materially from "unfair and deceptive practices." While the former has a very specific definition,¹⁶ "unfair and deceptive acts and practices" has not been similarly defined with specific language in the statutory scheme of CUTPA. If the State wishes to regulate charitable fraud, it cannot simply hold up the banner of a compelling state interest (namely, the prevention of fraud) to justify any regulation it passes to purportedly further that interest. A compelling state interest is a necessary but not sufficient reason for upholding regulations of charitable speech: such regulations must also be sufficiently narrowly tailored so as to not unduly burden First Amendment freedoms. Riley at 796. The definition of "unfair and deceptive acts" under CUTPA (as interpreted both by the Connecticut courts and by the Commissioner of Consumer Protection) is simply not narrow and precise enough to be used to regulate core First Amendment activities.

F. The Defendants have used CUTPA to regulate charitable activities

Section 42-110b(a) of CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the pursuit of trade or commerce." On its face, it would appear that such a regulation would not apply to charitable activities, since charities generally do not engage in "trade or commerce" at least in the conventional sense.¹⁷ However, the definitional sections of CUTPA belie that common sense understanding. Section 42-110a(4) defines "trade or commerce" as:

"The advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity or thing of value in this state" (emphasis added).

Under this definition, the Attorney General has successfully argued¹⁸ that charitable solicitations in fact fall under CUTPA, since such solicitations "advertise the availability of charitable services, both tangible and intangible," and because charities "distribute property in the state of Connecticut."¹⁹

Furthermore, 42-295 et seq. of CUTPA,²⁰ as well as Commissioner’s Regulation 42-110b-23 regulate sweepstakes sent to Connecticut residents. Those provisions do not distinguish between charitable and commercial sweepstakes, and the Defendants have used these provisions to regulate charitable activities. This is a plain example of the government firing its regulatory machine guns to protect the public from pesky gnats.

G. CONCLUSION

For all of the foregoing reasons, ACFRFR’s motion for preliminary injunction should be granted.

¹ While Riley sanctions the use of narrowly tailored anti-fraud laws to punish fraudulent charitable solicitations, the fact that CUTPA does not require a finding of fraud raises a serious question as to whether its purpose (namely, the protection of the public from unfair and deceptive acts in trade or commerce) is a sufficiently strong interest to justify regulation of core First Amendment activities, even if the court were to find that CUTPA is sufficiently narrowly tailored. See Omega Engineering, Inc. v. Eastman Kodak Co., 908 F.Supp. 1084 (D.Conn. 1995)(holding that since CUTPA addresses different concerns than anti-fraud laws, the pleading requirements of CUTPA are more relaxed than those for fraud and there is less need for a clear and satisfactory standard of proof to succeed on a CUTPA claim); Prishwalko v. Bob Thomas Ford, Inc., 636 A.2d 1383, 33 Conn. App. 575 (1994)(CUTPA proscribes a broader range of conduct than common law misrepresentation, and a CUTPA plaintiff need not prove reliance or even that the representation became a part of the basis for the bargain); and Associated Inv. Co. Ltd. Partnership v. Williams Associates IV, 645 A.2d 505, 230 Conn. 148 (1994)(holding that CUTPA does not require proof of intent to deceive, defraud, or mislead).

Under Riley, however, if more "benign and narrowly tailored options" are available, a less benign and less narrowly tailored option will not withstand scrutiny. Riley at 800. If the state’s interest is in protecting the public from fraud, then a law prohibiting fraud is certainly more narrowly tailored than a law prohibiting "unfair and deceptive acts and practices in the conduct of trade or commerce." See also McIntyre v. Ohio Elections Commission, 514 U.S. 334, 349-51, 115 S.Ct. 1511 (1995).

² 42-110b(b) provides that

"[i]t is the intent of the legislature that in construing [42-110b(a)], the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended."

³ It should be pointed out that although the Connecticut legislature did provide a standard by which the judiciary and the Commissioner of Consumer Protection could define just what acts are unfair and deceptive (namely, that they "shall be guided by the interpretations of the FTC Act given by the FTC itself and the federal courts"), the fact of the matter is that the FTC has acknowledged that it does not have jurisdiction over nonprofits. See testimony of William C. Macleod, the then Director of the Bureau of Consumer Protection of the Federal Trade Commission, attached hereto as Exhibit "B." Consequently, there are absolutely no federal rules by which the judiciary and the Commissioner may be "guided" in determining which acts of a nonprofit are unfair and deceptive. As a result, the courts and the Commissioner are the first, last, and only arbiters of what acts a nonprofit can and cannot engage in without violating the statute. This is the essence of unbridled discretion, which the courts have held is virtually per se unconstitutional in the context of regulating charitable speech. See e.g., Schaumburg, Munson, Riley, supra; see also, Gospel Missions of America v. George Bennett, 951 F.Supp. 1429 (C.D. Cal. 1997).

⁴ See e.g., Web Press Services Corp. v. New London Motors, Inc. 203 Conn. 342, 354, 525 A.2d 57 (1987)(holding that CUTPA is a remedial statute that is meant to be broadly construed); Larsen Chelsey Realty Co. v. Larsen, 656 A.2d 1009, 232 Conn. 480 (1995)(holding that CUTPA by its own terms applies to a broad spectrum of commercial activity, and the entire act is remedial in character); Associated Inv. Co. Ltd. Partnership v. Williams Associates IV, 645 A.2d 505, 230 Conn. 148 (1994)(holding that CUTPA, as remedial legislation, is to be broadly construed to effectuate its public policy goals); see also, Omega Engineering, Inc. v. Eastman Kodak Co., 908 F.Supp. 1084 (D.Conn. 1995)(holding that CUTPA reflects a public policy in favor of remedying wrongs that may not be actionable under other bodies of law

⁵ ).

⁶ In the instant challenge, ACFRFR does not raise the issue of whether the commercial speech rights of for profit companies are also violated by CUTPA’s overbreadth. Hence those arguments are not addressed in this brief.

⁷ The cigarette rule gets its name from an FTC regulation entitled Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking, 29 Fed. Reg. 8355 (1964)(quoted in Yale New Haven Hospital Inc. v. Mitchell, 683 A.2d 1362, 44 Conn. Sup. 274 (1995)(citations omitted)).

⁸ Compare, State of Connecticut v. Leary, 217 Conn. 404, 409-10 587 A.2d 85, 88 (1991)(holding that in the case of economic regulations like CUTPA, the test to determine their constitutionality is that the regulation must bear a reasonable relationship to a proper legislative purpose in a manner that is neither arbitrary nor discriminatory, and that the party attacking the constitutionality of such a validly enacted regulation bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt).

⁹ The Riley court struck down a North Carolina statute which merely required that the fees paid by a charity to its fundraisers be "reasonable," a term which the statute defined very specifically by reference to percentages of the amounts that fundraisers had to turn over to the charities for which they solicited. In contrast, this definition of CUTPA requires that the message itself be "reasonable," and further provides virtually no guidance to the enforcers as to what constitutes "unreasonable" other than referring to notions of morality, ethics, and penumbras of unfairness. The amount of discretion that this gives to the Commissioner of Consumer Protection and the Attorney General, as well as the courts, in determining whether a charitable solicitation is "reasonable" is virtually limitless. The Supreme Court has consistently struck down licensing statutes that granted the licensor of speech broad discretion without specific enough guidelines because such vague standards allow government officials to discriminate on the basis of viewpoint rather than creating uniform rules applicable to all. See Schaumburg and Munson, supra; Schneider v. State, 308 U.S. 147 (1939); Hynes v. Mayor of Oradell, 425 U.S. 610, 620 (1976); and Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666 (1938).

¹⁰ Many charities would argue that donors are not "customers" in the commercial sense and that the regulation therefore should not apply in the charitable context. However, the Defendants have interpreted this language to the contrary so that it does include within its scope charitable solicitations to prospective donors. See affidavit of Rita Smith, attached hereto as Exhibit "A."

¹¹ Again, such unfettered discretion is necessarily implied by the language of CUTPA, which prohibits acts which are "unfair."

¹² Justice Scalia concurred in the entire majority opinion in Riley with the exception of the dicta contained in footnote 11. In dissenting from that footnote, Justice Scalia wrote that "where core First Amendment speech is at issue, the state can assess liability for specific instances of deliberate deception, but it cannot impose a prophylactic rule requiring disclosure even when deliberate statements are not made." Riley at 803-4. The burdensome disclosure requirements demanded by the Defendants as the price for allowing ACFRFR’s members to engage in core First Amendment activities demonstrate the prescience of Justice Scalia’s insight expressed in his dissent in Riley.

¹³ While the amount of ink, extra paper, and postage (due to the extra paper) needed to include the repeated disclosures mandated by the Defendants may seem trivial in the context of a single piece of mail, it must be remembered that charities typically mail many tens of thousands of pieces of mail nationally in any particular solicitation campaign. The mandated disclosures demanded by the Defendants can raise the cost of a 100,000 piece mailing substantially. See Affidavit of Rita Smith, attached hereto as Exhibit "A."

¹⁴ ACFRFR recognizes that facial invalidity due to overbreadth is "strong medicine" that is only applied when the statute is "substantially overbroad." See Broadrick v. Oklahoma, 413 U.S. 601 (1973)(denying facial invalidity to state law that regulated solicitation by state employees and prohibited political activities "except in exercis[ing] [their] rights as citizen[s] privately and...[to] vote"); Lewis v. City of New Orleans, 415 U.S. 130, 94. S.Ct. 970 (1974)(invalidating state law on its face that regulated fighting words speech in too broad a manner); and Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222 (1975)(statute which prohibited newspaper editor from publishing advertisement relating to abortion activities which were legal in New York but not in Virginia held unconstitutional as applied but not facially overbroad). Although ACFRFR believes that the state of Connecticut’s insistence on wielding the hammer of CUTPA so broadly (through the Attorney General’s interpretation of the very broad grant of power given by the state legislature) would make a facial challenge to the statute appropriate, ACFRFR only asks this court to enjoin the Defendants from enforcing CUTPA against charitable speech activities. Since it is clear that CUTPA cannot be applied to charitable speech activities, it is not necessary for this court to determine whether CUTPA is so "substantially overbroad" as to warrant facial invalidity in order to determine that ACFRFR is likely to prevail on the merits of its challenge.

¹⁵ ACFRFR makes no argument here one way or the other as to the constitutionality of the Charitable Solicitations Law. The instant challenge is limited to the application of CUTPA to charitable speech.

¹⁶ Connecticut General Statutes Section 21a-190(h) defines fraudulent charitable solicitations as including, inter alia, solicitations which (1) misrepresent the purpose or beneficiary of a solicitation; (2) misrepresent the purpose or nature of a charitable organization; (5) exploits the fact of registration so as to lead the public to believe that registration constitutes endorsement by the state; (6) misrepresent that any other person sponsors or endorses a solicitation; (7) uses the name, emblem, device, or other printed matter of another charitable organization without the express permission of that organization; (9) represent that another charitable organization endorses or is otherwise associated with the solicitation.

ACFRFR points out that the definition of fraudulent solicitation contained in 21a-190(h)(4), which prohibits charities from expending "unreasonable amounts of money for solicitation or management" would also not survive review under Riley (where the court held that any measure that requires the charitable speaker to prove "reasonableness" of the fees paid for solicitors and for management is per se unconstitutional, see Riley at 793). However, ACFRFR does not challenge that provision here.

¹⁷ Compare the way the New Jersey courts have dealt with a similar issue in the case of Del Tufo v. National Republican Senatorial Committee, 591 A.2d 1040, 248 N.J. Super 684 (N.J.Super.Ch. 1991). In that case, the State of New Jersey attempted to apply its own consumer fraud law to a methodology of fundraising conducted by a political campaign. In rejecting the State’s contention that the residents who were confronted with this practice were consumers under the law, the court held that

"[t]he raising of funds for political purposes...involves neither commercial goods nor commercial services. In essence, said activity involves the promotion and marketing of concepts dealing primarily with societal ideas, principles, standards, and goals...It should be obvious that those who are solicited for political contributions are not being approached in their ordinary capacity as consumers.

Here, potential contributors are approached, not in a commercial sense as would be in connection with the sale or advertisement of any merchandise or real estate, but very pointedly with the purpose and intent to obtain funds to promote a political party, its policies, and its candidates."

591 A.2d at 1042. The court also noted that, like CUTPA, even if the Act did facially include nonprofit solicitation within its scope, the First Amendment would bar its application to charitable solicitations because of, inter alia, the broad subpoena powers in the Act.

Similarly, the Federal Courts have held that solicitations for public support by a nonprofit are not "trade" or "commerce" under the Sherman Antitrust Act (the Supreme Court has held that the FTC Act, the Sherman Act, and the Clayton Act are all part of the same remedial structure adopted by Congress to ensure fair trade and commerce, and thus the meaning of the words "trade or commerce" should have the same meaning in each). See Dedication and Everlasting Love to Animals v. The Human Society of the United States of America, Inc., 50 F.3d 710 (9^th Cir. 1995). In that case, the Court held in relevant part that

"[i]f statutory language is to be given even a modicum of meaning, the solicitations of contributions by a nonprofit organization is not trade or commerce, and the Sherman Act has no application to such activity....

[while a nonprofit may engage in certain activity that subjects it to the Sherman Act], it is a leap from the conclusion that charitable form confers no immunity to the conclusion that charitable activities are subject to the Sherman Act when they do not constitute trade or commerce in the sense of the common law."

Dedication and Everlasting Love to Animals at 711-3.

Although precisely the same common sense reasoning ought to apply here, the Defendants have insisted that CUTPA on its face applies to solicitations by charities that seek to disseminate the charitable ideas at the core of the charity’s mission, and has sought to regulate them accordingly. See the cases cited in footnote 17, infra. This is in spite of the fact that such solicitations clearly are not trade or commerce in the common sense meanings of those terms, nor are they trade or commerce under the FTC Act. See also Community Blood Bank of the Kansas City Area, Inc. v. Federal Trade Commission, 405 F.2d 1011 (8^th Cir. 1969), holding that the FTC Act does not apply to nonprofits but which the Defendants claim is inapplicable on the grounds that the definitional sections of the two Acts differ fundamentally, despite CUTPA’s requirement that the Act be interpreted in accordance with the FTC Act. See, e.g., State of Connecticut v. Cancer Fund of America, Inc., 1 Conn. L.Rptr. 311 (1990).

¹⁸ A partial listing of cases instituted by the Connecticut Attorney General against charitable organizations containing one or more counts alleging violations of CUTPA includes the following: State v. American Veterans Assistance Corp., CV 96-0557566; State v. Chiefs of Police National Drug Force, CV 96-0560247; State v. Stratford Bronco Baseball League, Inc., CV 91-03965845; State v. Shelton Jaycees, CV 89-0365408; State v. New Haven Police Union-Kidney Fund, CV 91-0396587; State v. Kiwanis Club of Greenwich, CV 89-0365410; State v. Ansonia-Derby Jaycees, CV 89-0365405; State v. Child Protection Program Foundation, CV 92-0515960; State v. Children’s Wish Foundation International, CV 92-0515961; State v. National Children’s Cancer Society, CV 92-0515959; State v. New Haven Firefighter’s Union, CV 91-0396586; State v. Cancer Fund of America, CV 92-0515961; State v. United Citizens Against Drugs, CV 0515962; State v. North Haven PBA, CV 90-0376767; State v. Meriden Police Benevolent Association, CV 89-0358582; State v. Fraternal Order of Eagles, CV 92-0510279; State v. Norwich Kiwanis Club, CV 90-0384202; State v. Citizens for a Drug Free America, CV 92-0510281; State v. Torrington Firefighters, CV 90-0384204; State v. Order of Centurions, CV 89-0360103; State v. Hartford Guardians, CV 90-0376770; State v. Danbury Elks, CV 90-0384205; State v. Brock-Barnes, CV 94-0537702; and State v. Trevor B. Ewing Memorial Foundation, CV 92-0518973.

Of particular importance in this case is the State v. Cancer Fund of America case. In that case, the Attorney General prosecuted a charity for running a sweepstakes that it found to violate CUTPA. The charity filed a motion to strike the complaint, averring that CUTPA could not be constitutionally applied to charitable speech. The state court did not concur with Cancer Fund, however, and denied its motion to strike. The Attorney General has since used this precedent to move forward with other prosecutions of some of ACFRFR’s members.

¹⁹ It is possible to construe CUTPA as not applying to charitable speech at all, especially in light of the rule of judicial construction that counsels courts to construe statutes so as to avoid constitutional infirmities, Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). However, given that the Attorney General and the state courts have already given broad scope to CUTPA, given that ACFRFR’s members have already been subject to prosecution under the statute, and given the nature of declaratory relief requested, ACFRFR urges this court that it is the broad reading of CUTPA that must be used here. That reading includes charitable activities by the words the legislature chose to include in the statute. See 42-110a(4) and 42-110b(b),(d).

²⁰ 42-300 provides that failure to comply with the sweepstakes provisions of CUTPA contained in 42-295 et seq. is deemed an unfair trade practice under 42-110b