602
ASSOCIATES, INC.
Syllabus
the charity was merely incidental to the fundraising effort, which was made for Telemarketers' private pecuniary benefit. Fraud actions so tailored, targeting misleading affirmative representations about how donations would be used, are unlike the prophylactic measures invalidated in Schaumburg, Munson, and Riley: So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on solicitors' fees per se, fraud actions need not impermissibly chill protected speech. Pp. 617-619.
(c) The prohibitions invalidated in Schaumburg, Munson, and Riley turned solely on whether high percentages of donated funds were spent on fundraising. Their application did not depend on whether the fund-raiser made fraudulent representations to potential donors. In contrast to the prior restraints inspected in those cases, a properly tailored fraud action targeting specific fraudulent representations employs no " '[b]road prophylactic rul[e],' " Schaumburg, 444 U. S., at 637 (citation omitted), lacking any "nexus . . . [to] the likelihood that the solicitation is fraudulent," Riley, 487 U. S., at 793. Such an action thus falls on the constitutional side of the line "between regulation aimed at fraud and regulation aimed at something else in the hope that it would sweep fraud in during the process." Munson, 467 U. S., at 969-970. The Attorney General's complaint has a solid core in allegations that home in on Telemarketers' affirmative statements designed to mislead donors regarding the use of their contributions. Of prime importance, to prove a defendant liable for fraud under Illinois case law, the State must show by clear and convincing evidence that the defendant knowingly made a false representation of a material fact, that such representation was made with the intent to mislead the listener, and that the representation succeeded in doing so. In contrast to a prior restraint on solicitation, or a regulation that imposes on fundraisers an uphill burden to prove their conduct lawful, the State bears the full burden of proof in an individualized fraud action. Exacting proof requirements of this order, in other contexts, have been held to provide sufficient breathing room for protected speech. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254, 279-280. As an additional safeguard responsive to First Amendment concerns, an appellate court could independently review the trial court's findings. Cf. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 498-511. What the First Amendment and this Court's case law emphatically do not require, however, is a blanket exemption from fraud liability for a fundraiser who intentionally misleads in calls for donations. While the percentage of fundraising proceeds turned over to a charity is not an accurate measure of the amount of funds used "for" a charitable purpose, Munson, 467 U. S., at 967, n. 16, the gravamen of the fraud action in this case is not high costs or fees,
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