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So, you have an idea for a way to make your neighborhood better, create social change, or join the resistance. You and others have hit the streets a couple of times, gone to public and community meetings, and want to reach out to others and take the next step to make things happen. A friend says his cousin is a lawyer who could give you advice. You have been online and learned a little something. It must be time to incorporate your idea so that you can build a “real” organization.

Whoa, Nelly, not so fast! Before your knee jerks and you incorporate, you have to figure out the “what” and “when” that would lead you down that path and answer the threshold question of “to incorporate or not to incorporate?”

Please understand that you can get organized and build and organization without being a corporation. For example, almost the largest membership organizations in the United States are labor unions and none of them are incorporated. They – and many other organizations at the local level – are “unincorporated associations of groups.” Most social movements, often forever and a least for some period of time, are often unincorporated. The National Welfare Rights Organization and its affiliates in the late 1960s and early 1970s was unincorporated. ACORN, the Association of Community Organizations for Reform Now, was unincorporated from 1970 to 1978.  Occupy and Black Lives Matter more recently were unincorporated associations. Just like labor unions, such associations can have bylaws, bank accounts, sign contracts, own property, employ staff, and all of the other operations that go with building an organization.

The decision to incorporate is not one for the lawyers to make. Primarily, it is one for the organizers and members to make based on what they are likely to do and how they are going to do it. Secondly, it is based on how the organization looks at risk and liabilities.

Many movement-style and direct-action organizations resist or delay incorporation because they want to protect flexibility in their tactical selection. An incorporated organization can easily be enjoined in court which prevents action by all the members of the organization.  In order to legally enjoin an unincorporated organization, the government or whatever organizational target would have to name specific individuals. The injunction would prevent their action, but not the action of other unnamed members. In the civil rights era where nonviolent demonstrations and civil disobedience arrests, whether those forcing integration or sitting in welfare offices were critical tactics, were common, avoiding injunctions was a strategic necessity. The NAACP could be sued for a boycott’s impact in Mississippi and the liability could be millions, because they were incorporated, but it was harder when a movement was unincorporated as recent litigation around assessing liability to Occupy and Black Lives Matter has shown.

According to research conducted for In These Times in partnership with Ear to the Ground, law enforcement in at least eight states—Arizona, Florida, Georgia, Iowa, Minnesota, Missouri, Washington and Wyoming—lobbied on behalf of anti-protest bills in 2017 and 2018. The bills ran the gamut from punishing face coverings at protests to increasing penalties for “economic disruption” and highway blockage to criminalizing civil protests that interfere with “critical infrastructure” like oil pipelines. Louisiana and other states are currently debating such legislation in their legislatures. Much of this new anti-protest curtailment of free speech has occurred in the wake of the Standing Rock protests against the Dakota Access Pipeline in North Dakota in 2016. The Standing Rock Sioux tribe as a legal entity could be stopped legally. The thousands who came to support them could not be stopped in the same way.

If you and your neighbors and friends were just trying to put together a group to make your voices heard, you might ask, “Why care about all the drama and history of social movements?” The answer is simple: because it matters! Would you build the roof and walls of a house before you figure out how big the house would be, where it would be located, and who would live there? Of course not. The same goes for starting an organization.

The reason to not incorporate your organization is to force authorities to hold individual members accountable for actions, the reason to incorporate is to protect individual members from action by authorities. Now, I’ve confused you, but step back. The only real reason to incorporate is to protect assets. If your organization has no assets, incorporating can put limits on your action. If your organization has assets and an increasingly clear and identifiable membership, then may be time to incorporate in order to protect the downside as fiercely as you tried to advance the upside in the beginning.  

The real organizing tip here is simple: think first, before you incorporate. Make sure organizers have a clear vision of what they are trying to build before they make a permanent decision about the structure of the organization. Structure matters!

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