A company that solicits charitable donations for nonprofits cannot continue its constitutional challenge to Colorado’s regulations because it no longer faces a prohibition on operating in the state, a federal judge ruled last week.

InfoCision Management Corporation, located in Akron, Ohio, alleged a portion of Colorado’s Charitable Solicitations Act unconstitutionally infringed upon its free speech rights as a company that is paid to make solicitations. U.S. District Court Senior Judge William J. Martínez previously sided against InfoCision, prompting an appeal.

But while the appeal was pending, Secretary of State Jena Griswold allowed InfoCision to re-register as a paid solicitor in Colorado. The U.S. Court of Appeals for the 10th Circuit sent the case back to Martínez and asked him to determine if the lawsuit was now moot. In a May 14 order, Martínez concluded it was.

“In this case,” he wrote, “a declaration that the Act is facially unconstitutional simply cannot affect the Secretary’s behavior toward InfoCision because she has already registered it as a charitable solicitor in Colorado.”

Colorado’s legislature enacted the Charitable Solicitations Act after finding fraudulent solicitations on behalf of charities were a “widespread practice” that siphoned money away from legitimate organizations. The law requires the secretary of state to look at registration applications for paid solicitors annually and decide whether an application satisfies the requirements.

Under the law, no one may act as a paid solicitor in Colorado if, among other things, another state or the U.S. government enjoined them from engaging in deceptive conduct within the past five years. In 2018, a federal judge in Ohio ordered InfoCision to pay a penalty of $250,000 and barred it from making misrepresentations to the public in response to allegations from the Federal Trade Commission of deceptive practices.

Later that year, the secretary of state’s office, under Griswold’s predecessor, Wayne Williams, denied InfoCision’s attempt to renew its registration as a paid solicitor in Colorado because of the federal action. Although the office reversed that decision on technical grounds, Griswold again denied the renewal the following year.

InfoCision challenged the prohibition on First Amendment grounds, arguing it had a “fundamental right” to speak as a paid solicitor. Martínez disagreed that the law amounted to a constitutional violation.

“The Supreme Court’s precedents do not prevent the legislature from regulating paid charitable solicitors simply because they speak about charitable giving,” he wrote in November 2021.

While the case was on appeal to the 10th Circuit, the five-year window under the Charitable Solicitations Act expired. Griswold’s office granted InfoCision’s renewal in May 2023. Although some 10th Circuit judges appeared concerned during oral arguments that Colorado’s law was overly broad, they first asked Martínez to determine if any action remained for the courts to take in light of the changed circumstances.

InfoCision believed its rights were still in danger because other states could restrict its solicitation activities based on Colorado’s five-year suspension. It cited Mississippi law, which requires the state to deny an organization’s registration if any other secretary of state has suspended it, and an email from Mississippi’s asssistant secretary of state confirmed she “would deny” the registration based on Colorado’s sanction.

However, Colorado responded that InfoCision had not given Mississippi the full picture of what was going on. After Colorado clarified InfoCision was no longer prohibited from registering in the state and was, in fact, currently registered, Assistant Secretary of State Tanya G. Webber clarified Mississippi “would allow the applicant to register.”

Based on that information, Martínez concluded InfoCision was facing no likely injury.

“While it may be true that other states are monitoring this litigation,” he acknowledged, “InfoCision has not presented evidence that another state is considering revoking or denying its registration based on Colorado’s previous denial of its registration.”

The case is InfoCision Management Corp. v. Griswold.