Judge Bans Schiff Book on Income Tax
1st Amendment Thrashed to Buy the Tax More Time
New York Times: More Deception
On Monday, June 16, Federal District Court Judge Lloyd D. George issued a preliminary injunction banning the sale and distribution of Irwin Schiff’s book about the income tax titled, “The Federal Mafia: How The Government Illegally Imposes And Unlawfully Collects Income Taxes And How Americans Can Fight Back.”
Schiff’s book, which is a personal and legal examination of the income tax fraud and includes extensive, and specific, quotations and analyses of US tax law and Supreme Court rulings on the tax, was banned even though the Department of Justice (which bears the burden of proof) presented no evidence and no witnesses at the April 11th preliminary injunction hearing. Click Here to read the first portion of the censored book (.pdf).
short, Judge George banned Schiff’s book as “false commercial speech”
without any specific analysis or any in-court evidentiary examination
establishing the “falsity” of Schiff’s actual speech and by blithely
ignoring the substantial body of established Supreme Court constitutional
law protecting free expression and publication.
On Tuesday June 17, The New York Times ran an article authored by David Cay Johnston about the Schiff injunction. According to Schiff, Johnston makes two knowingly false statements distorting the perceived nature of the proceedings. Schiff has demanded a formal retraction from the New York Times.
At the court hearing, Mr. Schiff fired his lawyer after she said that she
could not argue his tax claims because they lacked merit.” In his
demand letter to the Times, Schiff points out that the
transcript from the hearing makes it explicitly clear that Schiff’s attorney
was not characterizing Schiff’s legal assertions as false or lacking in any
way, but instead that she was effectively prohibited by the court from
even raising the issues in defense of Schiff under fear and threat of court
Analysis of the Order
reach his contorted legal conclusions and to issue the preliminary
injunction in favor of the IRS, Judge George ruled, without any evidentiary
examination or cross-examination, to conclude that Schiff’s speech is false.
(Note: The 1st Amendment discussion begins on page 13 of the
The judge, citing the 9th Circuit Estate Preservation case, makes the implicit point that Schiff, outside this injunction, is free to continue to give tax planning advice as long as it is “legitimate” as (quote) “every honest and qualified tax consultant knows.”
Judge George, having concluded that the book constitutes “core commercial
speech,” (i.e. “advertising, plain and simple”) dismisses the tightly
interwoven political content and far reaching political implications of
Schiff’s work and instead focuses on establishing that Schiff’s book is
simply a contrived “soup” of false advertising and an embedded “abusive tax
scheme,” which, of course, enjoy no protection.
Incitement of Imminent Lawless Acts
At the beginning of the section dealing with the "Incitement of Imminent Lawless Acts" (page 26) Judge George cites the Brandenburg v. Ohio Supreme Court case where the court upheld that even speech advocating the violation of law was protected, as long as the speech did not “incite imminent unlawful acts”.
The Brandenburg case is the modern day constitutional litmus test for the legal banning of speech. Below is the definition of the word “imminent”.
Having already sidestepped the issue of whether filing a “zero return” constitutes an unlawful act, Judge George haphazardly, and improperly, dismisses the crucial Brandenburg “test” as inappropriate in Schiff’s case because the speech in Schiff’s book “incorporates the (tax) scheme” thereby implying that Schiff's speech is the actual crime and therefore that this test need not be applied.
The entire nature of the Supreme Court's Brandenburg litmus test revolves around the direct incitement of “imminent” lawless behavior – i.e., in the case of Brandenburg (and its supporting case citations) imminent VIOLENT behavior. (Brandenburg was a Klansman engaged in inflammatory, racist speech. His speech was upheld as constitutional because he merely advocated the breaking of the law.)
Judge George takes license in citing several sympathetic Court decisions, while choosing to ignore the direct guidance of the Supreme Court regarding this crucial legal test necessary to ban speech.
In short, the Court makes no attempt to establish how reading a book containing a legal analysis and instructions on how to file a tax return could result in anything resembling “imminent” activity of ANY type – whether lawful or not. The judge seems content – as the other District tax case judges seem to be – of tolerating a mere logical relationship between this “unlawful” speech and a subsequent “criminal act.” With that linkage established, the “imminence” element to banning speech is cleanly dismissed out of hand.
this court’s logic, anyone who wrote a “how-to” book containing any
information that was subsequently used in a crime – no matter how far
removed from the alleged proximate cause -- and regardless of whether
the speech was false or not – could be held liable for his/her speech or
In the last section of the injunction order, the judge cements his previous conclusion of the false, (and thereby criminal), nature of Schiff’s speech by citing a handful of free speech cases involving bomb makers, illegal drug manufacturers and “hit-men” that purport to, by example and association, show how speech that leads directly to and induces specific criminal conduct is not protected.
Of course unlike exploding a bomb or killing another human being -- which are reasonably understood to be plainly criminal acts – the filing of a tax return per instructions and legal advice of a court-acknowledged tax expert that specifically and plainly cites decisions of the Supreme Court and the Internal Revenue Code itself is much harder to comprehend as an overt criminal act.
The argument and carefully selected lower level court cases cited by Judge George throughout the Order clearly appear strained in their effort to support a justifiable ban of Schiff’s speech and appear to set the stage for the Ninth Circuit to deny an appeal from Schiff. The clearly protected political content of the book is outright ignored. It is obvious that the government has found Schiff’s speech (and many other tax “protestors”) intolerable simply because the speech conveys details of the income tax fraud and that they have provided methods on how to effectively contravene its effects.
To be sure, the banning of speech through restraining orders and like vehicles are extraordinary remedies that can be implemented without a trial by jury, were designed to temporarily protect rights, property and the public tranquility at risk until other legal remedies could be effected. They were never intended for the purposes of suppressing, or otherwise circumventing, rightful, lawful public debates and discussions about the tax laws of this nation or the abuses of government power.
extraordinary remedy of enjoining speech was never intended to replace the
proper processes of due process and the enforcement of laws as executed via
indictments, prosecution and the judicial appeal process. The delegated and
strictly limited legal authority of our government to collect taxes DOES
NOT, and CANNOT, ever trump the sovereign People’s right to free speech.
In the pivotal case New York Times Co. v. Sullivan (1964), Justice Brandeis, is cited from his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376 restating the rationale behind free speech:
“Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” [emphasis added]
The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. --Patrick Henry
We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people. --John F. Kennedy
RIGHT CLICK Here
to download the Court’s Preliminary Injunction Order against Schiff