United States v. Bell ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-12-2005
USA v. Bell
Precedential or Non-Precedential: Precedential
Docket No. 04-1640
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1640
UNITED STATES OF AMERICA
v.
THURSTON PAUL BELL,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 01-cv-02159
(Honorable Christopher C. Conner)
Argued January 25, 2005
Before: SCIRICA, Chief Judge,
RENDELL and FISHER, Circuit Judges
(Filed: July 12, 2005)
ANTHONY N. THOMAS, ESQUIRE (ARGUED)
JEFFREY J. WOOD, ESQUIRE
Thomas & Associates
3111 North Front Street
Harrisburg, Pennsylvania 17110
Attorneys for Appellant
PAULA K. SPECK, ESQUIRE (ARGUED)
JONATHAN S. COHEN, ESQUIRE
JOHN SCHUMANN, ESQUIRE
RICHARD T. MORRISON, ESQUIRE
United States Department of Justice
Tax Division
P.O. Box 502
Washington, D.C. 20044
Attorneys for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
At issue is whether a permanent injunction barring
defendant Thurston Paul Bell from promoting and selling
unlawful tax advice is permissible under the First Amendment.
We will affirm the injunction with modifications.
2
I.
Thurston Paul Bell is a professional tax protester who ran
a business and a website selling bogus strategies to clients
endeavoring to avoid paying taxes. In the 1980s, he worked for
Save-A-Patriot, an entity dedicated to the proposition that
“American citizens are not liable for the income tax.” Bell later
started his own organization, Tax-gate, and a website, www.tax-
gate.com, where he drafted letters and pleadings to the Internal
Revenue Service and state tax agencies on behalf of clients.
Bell charged for advice and services in preparing various tax
filings. Bell subsequently founded another group, the National
Institute for Taxation Education (“NITE”), and the related
website www.nite.org., with the mission of providing “income
tax help, solutions and strategies that work for Citizens of the
United States to legally declare their gross income to be Zero.”
Substantively, Bell’s main rationale for avoiding the
income tax is known as the “U.S. Sources argument” or the
“Section 861 argument.”1 This method has been universally
1
The District Court summarized Bell’s U.S. Sources
argument:
The Internal Revenue Code defines “gross
income” as “all income from whatever source
derived.” 26 U.S.C. § 61(a). Bell claims that the
word “source” in section 61 is defined in the
“Source Rules and Other General Rules Relating
to Foreign Income.” 26 U.S.C. §§ 861-8653
(emphasis supplied). Section 861 states that
certain “items of gross income shall be treated as
income from sources within the United States....”
26 U.S.C. § 861(a). According to the U.S.
Sources argument, domestically earned wages of
U.S. citizens are not taxable because such wages
are not specifically mentioned in the list of items
of gross income that “shall be treated as income
from sources within the United States.” See 26
U.S.C. § 861(a). Bell concedes that section 861
itself does not exempt domestically earned wages
of U.S. citizens. No doubt Bell makes this
concession because section 861 plainly provides
that “[c]ompensation for labor or personal
services performed in the United States ...” shall
be treated as income from sources within the
United States. 26 U.S.C. § 861(a)(3).
Nevertheless, he argues that such wages are not
taxable because certain regulations promulgated
under section 861 (i.e. 26 C.F.R. §§ 1.861-8(a)(4),
1.861-8(f)(1), and 1.861-8T(d)(2)(ii)(A)) create
an applicable exemption. Bell's clients typically
file zero income tax returns with an “asseveration
of claimed income” attached, disputing the gross
income indicated on the taxpayer’s W-2 forms.
When this method fails, Bell argues that the IRS
4
discredited. See, e.g., Great-West Life Assurance Co. v. United
States, 678 F.2d 180, 183 (Ct. Cl. 1982); Loofbourrow v.
Comm’r, 208 F. Supp. 2d 698, 709-10 (S.D. Tex. 2002);
Williams v. Comm’r, 114 T.C. 136, 138-39 (2000). Still, several
of Bell’s clients obtained unwarranted tax refunds by filing
returns according to his methods. From May 2000 until
February 2002, over 400 clients paid Bell approximately
$60,000 through the internet payment system PayPal.
The United States requested a preliminary injunction
against Bell under 26 U.S.C. §§ 7402 and 7408.2 Granting the
has violated his clients’ due process rights by not
allowing them to cross-examine their employers
regarding the gross income listed on their W-2
forms. Bell’s goal in seeking to cross-examine
employers is to show an absence of gross income
according to the fallacious U.S. Sources argument
outlined above.
United States v. Bell, 238 F. Supp. 2d 696, 699 (M.D. Pa. 2003).
2
Section 7402 provides that “[t]he district courts of the
United States at the instance of the United States shall have such
jurisdiction to make and issue in civil actions, writs and orders
of injunction, . . . and to render such judgments and decrees as
may be necessary or appropriate for the enforcement of the
internal revenue laws.” 26 U.S.C. § 7402(a).
Section 7408 provides that “if the court finds – (1) that
5
motion, the District Court enjoined Bell from “directly or
indirectly, by means of false, deceptive, or misleading
commercial speech . . . organizing, promoting, marketing or
selling . . . the tax shelter, plan or arrangement known as the
‘U.S. Sources argument’ . . . or any other abusive tax shelter,
plan or arrangement that incites taxpayers to attempt to violate
the internal revenue laws,” and from assisting others in such
violations. Bell, 238 F. Supp. 2d at 705-07. The District Court
also ordered Bell to communicate by mail with all persons he
assisted with the preparation of tax filings, to whom he gave or
sold tax materials related to the U.S. Sources argument, or who
contacted him about such matters. The letter was to inform
those persons of the court’s injunction, the fraudulent nature of
the U.S. Sources argument, their potential liability for filing
frivolous tax returns, and the possibility that the government
may seek to recover erroneous refunds and impose other
penalties. Id. The District Court ordered Bell to maintain his
the person has engaged in any specified conduct, and (2) that
injunctive relief is appropriate to prevent recurrence of such
conduct, the court may enjoin such person from engaging in
such conduct or in any other activity subject to penalty under
this title.” 26 U.S.C. § 7408(b). “Specified conduct” is defined
as “any action, or failure to take action, which is – (1) subject to
penalty under section 6700 [relating to penalty for promoting
abusive tax shelters, etc.], or section 6701 [relating to penalties
for aiding and abetting understatement of tax liability].” 26
U.S.C. § 7408(c).
6
principal website, www.nite.org, during the pendency of the
preliminary injunction, to remove “false commercial speech, and
materials designed to incite others to violate the law (including
tax laws),” and to post the court’s order on the website while
removing all the materials about the U.S. Sources argument. Id.The order also required Bell to inform the government of the
identities of all persons whom he had helped file tax returns.3
3
The relevant text of the order is reproduced below:
AND NOW, this 10th day of January, 2003, in
accordance with the accompanying memorandum, it is hereby
ORDERED that plaintiff's motion for preliminary injunction
(Doc. 34) is GRANTED. It is further ORDERED that:
1. Thurston Bell and his representatives, agents, servants,
employees, attorneys, and those persons in active concert or
participation with him, are preliminarily enjoined from directly
or indirectly, by means of false, deceptive, or misleading
commercial speech:
a. Organizing, promoting, marketing, or selling (or
assisting therein) the tax shelter, plan, or arrangement known as
"the U.S. Sources argument" (also known as "the section 861
argument") or any other abusive tax shelter, plan or arrangement
that incites taxpayers to attempt to violate the internal revenue
laws or unlawfully evade the assessment or collection of their
federal tax liabilities or unlawfully claim improper tax refunds;
b. Further engaging in any conduct subject to penalty
under 26 U.S.C. § 6700, i.e. making or furnishing, in connection
with the organization or sale of an abusive shelter, plan, or
7
arrangement, a statement they know or have reason to know is
false or fraudulent as to any material part;
c. Further engaging in any conduct subject to penalty
under 26 U.S.C. § 6701, i.e. assisting others in the preparation
of any tax forms or other documents to be used in connection
with any material matter arising under the internal revenue laws
and which they know will (if so used) result in the
understatement of income tax liability; and
d. Further engaging in any conduct that interferes with
the administration and enforcement of the internal revenue laws.
2. Bell shall forthwith send a letter to:
a. All persons to whom he gave, sold, or distributed any
materials espousing or related to the U.S. Sources argument;
b. All persons for whom Bell prepared or assisted in the
preparation or drafting of any federal returns or tax-related
documents; and
c. All persons who contacted Bell regarding the U.S.
Sources argument (in paper, via telephone, or through electronic
means); and inform those persons of the entry of the court's
findings concerning the falsity of Bell's representations, the
falsity of the tax returns based in whole or in part on the U.S.
Sources argument, the possibility of the imposition of frivolous-
return penalties against them, the possibility that the United
States may seek to recover any erroneous refund they may have
received, and the fact that a preliminary injunction has been
entered against Bell (and attach a copy of this Order to the
8
Id. The preliminary injunction was converted to a permanent
injunction on January 29, 2004.
II.
We have jurisdiction under 28 U.S.C. § 1291 to review
the District Court’s grant of a permanent injunction. We review
the decision to grant or deny an injunction for abuse of
discretion. Chao v. Rothermel, 327 F.3d 223, 225 (3d Cir.
2003). We review findings of fact for clear error, and
conclusions of law de novo. Highmark, Inc. v. UPMC Health
letter); and Bell shall simultaneously serve copies of all such
letters (without attachment) to counsel for the United States at
the address listed on the docket of this matter; and
3. Bell shall maintain the NITE website (www.nite.org) during
the pendency of this preliminary injunction Order, remove from
the aforementioned website all abusive-tax-shelter-promotional
materials, false commercial speech, and materials designed to
incite others to violate the law (including tax laws), and display
prominently on the first page of the website an attachment of
this preliminary injunction Memorandum and Order.
4. Bell shall mail to counsel for the United States, at the address
listed on the docket of this matter, one copy of every federal tax
return, amended return, or other document intended for the IRS
that he prepares, or assists in the preparation of, on behalf of any
other person or entity during the pendency of this preliminary
injunction Order . The mailing shall be made on the same date
the document is mailed to or filed with the IRS.
9
Plan, Inc., 276 F.3d 160, 170 (3d Cir. 2001).
III.
Bell contends the District Court erred in concluding the
materials on www.nite.org were false commercial speech
unprotected by the First Amendment. He also argues the
injunction is overbroad because it prospectively bars him from
advocating resistance to the tax laws – speech he claims is
protected because it does not incite imminent lawless action. He
also contends the requirements to post the injunctive order on
his website and turn over his list of clients to the government are
unconstitutional forced speech. Because Bell makes no
argument with respect to either the legality of the U.S. Sources
argument or the District Court’s application of the standard for
injunctive relief under 26 U.S.C. § 7402(a) or Fed. R. Civ. P. 65,
we limit our discussion to the First Amendment issues.4
4
The standard for evaluating a motion for preliminary
injunction is a four-part inquiry as to: (1) whether the movant
has shown a reasonable probability of success on the merits; (2)
whether the movant will be irreparably injured by denial of the
relief; (3) whether granting preliminary relief will result in even
greater harm to the nonmoving party; and (4) whether granting
the preliminary relief will be in the public interest. ACLU of
N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1477
n.2 (3d Cir. 1996) (en banc).
10
Permanent injunctions like the one here are “classic
examples of prior restraints” on speech, Alexander v. United
States, 509 U.S. 544, 550 (1993), and prior restraints are
generally presumed unconstitutional.5 New York Times Co. v.
United States, 403 U.S. 713 (1971) (per curiam). Prior
restraints, however, are not unconstitutional per se, and may be
permissible depending on the type of speech at issue.
Southeastern Promotions, 420 U.S. at 558; see also Near v.
State of Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
First Amendment protection does not necessarily attach “merely
because the conduct was in part initiated, evidenced, or carried
5
The Supreme Court has explained:
The presumption against prior restraints is
heavier–and the degree of protection broader–than
that against limits on expression imposed by
criminal penalties. Behind the distinction is a
theory deeply etched in our law: a free society
prefers to punish the few who abuse rights of
speech after they break the law than to throttle
them and all others beforehand. It is always
difficult to know in advance what an individual
will say, and the line between legitimate and
illegitimate speech is often so finely drawn that
the risks of freewheeling censorship are
formidable.
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59
(1975) (citing Speiser v. Randall, 357 U.S. 513 (1958)).
11
out by means of language, either spoken, written or printed.”
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)
(Black, J.); see also Ohralik v. Ohio St. Bar Ass’n, 436 U.S. 447,
456 (1978) (noting that regulation of information regarding
securities, corporate proxy statements, price information, and
statements by employers to employees is constitutionally
permissible in various contexts).
A.
The District Court found Bell’s bogus tax advice enjoys
no First Amendment protection and may be restrained because
it is false commercial speech. Bell, 238 F. Supp. 2d at 703-04.
We have defined commercial speech as “expression related to
the economic interests of the speaker and its audience, generally
in the form of a commercial advertisement for the sale of goods
and services.” U.S. Healthcare, Inc. v. Blue Cross of Greater
Phila., 898 F.2d 914, 933 (3d. Cir.1990). To determine whether
speech is commercial, courts should consider whether: (1) the
speech is an advertisement; (2) the speech refers to a specific
product or service; and (3) the speaker has an economic
motivation for the speech. Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60, 66-67 (1983); In re Orthopedic Bone Screw Prods.
Liab. Litig., 193 F.3d 781, 793-794 (3d Cir. 1999). An
affirmative answer to each question indicates “strong support”
for the conclusion that the speech is commercial. Id.In concluding the materials on Bell’s website were
predominantly commercial speech, the District Court made a
12
factual finding that his website was the internet version of “a
television infomercial” made to entice visitors to join Bell’s
organization and pay him for tax advice. Bell, 238 F. Supp. 2d
at 703. This finding is uncontradicted. From May 2000 to
February 2002, Bell received approximately $60,000 in internet
payments from more than 400 clients. The www.nite.org
website invited visitors to pay a $195 annual fee for
membership, which would give them access to tapes and
documents to instruct them how to use the U.S. Sources
rationale to file zero federal income tax returns. The website
included an itemized schedule of fees charged by Bell for
personalized assistance in completing IRS forms. Bell also
recruited apprentices, known as “Senior Fellows,” who, for a
$3,500 fee, could receive training on how to market the U.S.
Sources strategy to their own clients. As the District Court
noted, the website was imbued with the unmistakable rhetoric of
advertising. Id. (citing record). For example, Bell claimed on
www.nite.org that “[u]nlike others who peddle arguments that
may sound similar on the surface, our strategies have proven
success, as the Internal Revenue Service (IRS) itself (as well as
U.S. Attorneys and Federal Judges) has accepted NITE’s
arguments as valid.” The website also referred to specific
products and services, including forms, letters and assistance in
preparing them. As noted, Bell profited from this scheme, and
his profit motive was the driving force behind the enterprise.
In disputing the false commercial speech ruling, Bell
argues the website also contained “important information
13
concerning history, economic systems, monetary systems,
judicial systems, politics and opinions.” But even if true, this
fact does not undermine the well-supported finding that the
website’s primary function was to sell fraudulent and illegal tax
advice and services. Bell contends that because his website
includes this additional information, it is not “pure” commercial
speech which merely proposes a commercial transaction. See
Bolger, 463 U.S. at 66. Rather, Bell claims his commercial
speech is “inextricably intertwined” with protected political
expression. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
487 U.S. 781, 796 (1988) (“Where . . . 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. Such an endeavor would be both artificial
and impractical. Therefore, we apply our test for fully protected
expression.”).
On these facts, Bell’s argument is meritless. Packaging
a commercial message with token political commentary does not
insulate commercial speech from appropriate restrictions.6 Riley
6We are mindful generally of the “difficulty of drawing
bright lines that will clearly cabin commercial speech in a
distinct category.” City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 419 (1993). We have also noted that “often,
speech consists of complex mixtures of commercial and
noncommercial elements.” In re Orthopedic Bone Screw, 193
F.3d at 793 (quoting Bolger, 463 U.S. at 81 (Stevens, J.
14
is distinguishable because it involved legally-required
commercial and political speech (a state law requiring disclosure
of charitable contributions). See Bd. of Trs. of State Univ. of
N.Y. v. Fox, 492 U.S. 469, 474 (1989) (distinguishing Riley on
that ground). In Fox, the Court held a policy banning
tupperware parties at a state university did not hinder
petitioner’s ability to convey a noncommercial message
(encouragement of home economics) independently of its
commercial message (selling tupperware). Likewise, an
appropriately drafted injunction in this case would curtail Bell’s
promotion of tax evasion but would not prevent him from
advocating against the tax laws generally.
Restrictions on commercial speech are subject to
intermediate scrutiny. Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm. of N.Y., 447 U.S. 557, 566 (1980). The Supreme
Court has explained the standard:
In commercial speech cases, a four-part analysis
has developed. At the outset, we must determine
whether the expression is protected by the First
Amendment. For commercial speech to come
within that provision, it at least must concern
lawful activity and not be misleading. Next, we
ask whether the asserted governmental interest is
concurring)). No such complex mixture exists here. Customers
paid Bell for his advice and services in preparing fraudulent tax
returns, not for his colorful views on the tax code.
15
substantial. If both inquiries yield positive
answers, we must determine whether the
regulation directly advances the governmental
interest asserted, and whether it is not more
extensive than is necessary to serve that interest.
Id. The threshold inquiry is whether the commercial speech
involves unlawful activity or is misleading. If so, the
government may restrict it and the inquiry ends. See In re
R.M.J., 455 U.S. 191, 203 (1982) (“Misleading advertising may
be prohibited entirely.”); Bates v. State Bar of Ariz., 433 U.S.
350, 384 (1977) (“Advertising concerning transactions that are
themselves illegal obviously may be suppressed”).
Here, the District Court found that Bell’s speech was
both misleading and that it promoted unlawful activity. Like the
several other courts faced with similar claims from tax
protesters, the District Court found that Bell’s “U.S. Sources”
interpretation of the tax code is “nonsensical” and frivolous,
rests “purely on semantics” and “takes the regulations
promulgated under Section 861 [of the Internal Revenue Code]
out of context.” Bell, 238 F. Supp. 2d at 700. The court found
that Bell’s website invited visitors to violate the tax code, and
sold them materials instructing them how to do so. These
findings are not contradicted by the record. The District Court
properly concluded the false commercial speech on Bell’s
website was not protected by the First Amendment. Bell, 238 F.
Supp. 2d at 703-04 (citing Castrol, Inc. v. Pennzoil Co., 987
F.2d 939, 949 (3d Cir. 1993)).
16
Bell also invokes the general principle of First
Amendment law that prior restraints, as opposed to criminal
penalization, bear a heavier presumption against their
constitutional validity. See Southeastern Promotions, 420 U.S.
at 558-59. But this principle does not apply to restrictions on
unprotected speech, including false or unlawful commercial
speech. See, e.g., Nat’l Soc’y of Prof’l Eng’rs v. United States,
435 U.S. 679, 697-99 (1978) (upholding injunction against
publication of ethical canon violating antitrust laws); Pittsburgh
Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S.
376, 389-90 (1973) (upholding injunction against publication of
employment advertisements violating gender discrimination
laws). Addressing similar facts, the courts of appeals have
repeatedly upheld injunctions against abusive tax schemes like
Bell’s on false commercial speech grounds. See, e.g., United
States v. Schiff, 379 F.3d 621, 629 (9th Cir. 2004); United States
v. Estate Pres. Servs., 202 F.3d 1093, 1106 (9th Cir. 2000);
United States v. Buttorff, 761 F.2d 1056, 1066-68 (5th Cir.
1985). We will affirm the injunction insofar as it restricts Bell’s
false commercial speech.
B.
Bell argues the injunction improperly curtails his First
Amendment right to engage in protected political speech.
Specifically at issue are certain of the order’s provisions, based
on Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam),
that forbid Bell from engaging in speech inciting others to
violate the tax laws. On these facts, we believe the injunction
17
should be grounded on aiding and abetting violations of the tax
laws and on false commercial speech rather than on incitement
of illegal activity. Therefore, we will construe the injunction
narrowly.
Although profit-seeking material promoting the sale of
bogus tax advice predominated, Bell’s website also featured a
sampling of his views on the tax system and other topics. In his
brief, Bell contends his website “embarks on a rather interesting
study of the Constitution and the Internal Revenue Code . . . and
discusses his own experiences with the IRS and federal judiciary
and outlines his theories about federal income tax.” The record
indicates the website contained some political speech protesting
the tax laws generally.
The District Court correctly recognized that its injunctive
order must be narrowly drawn to separate protected speech from
unprotected speech. Bell, 238 F. Supp. 2d at 704. But to the
extent any materials on Bell’s website were non-commercial in
nature, the District Court held this content could be banned
“where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action.” Id. (emphasis in original) (quoting Brandenburg, 395
U.S. at 447). The accompanying injunctive order roughly
tracked the language from Brandenburg, and compelled Bell to
desist from promoting or selling any plan “that incites taxpayers
to attempt to violate the internal revenue laws” and to remove
18
“materials designed to incite others to violate the law (including
tax laws).” Id. at 705, 706.7
Because the District Court’s reliance on Brandenburg to
model the injunction is a purely legal question, our review is
plenary. Brandenburg grew out of a line of well known
Supreme Court cases addressing government restrictions on
radical political advocacy. See, e.g., Schenk v. United States,
249 U.S. 47, 52 (1919) (Holmes, J.); Gitlow v. New York, 268
U.S. 652, 673 (1925) (Holmes, J., dissenting); Whitney v.
California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring);
Dennis v. United States, 341 U.S. 494 (1950). A unanimous
Supreme Court struck down Ohio’s Criminal Syndicalism Act,
which aimed to punish “persons who advocate or teach the duty,
7
In choosing to tailor its injunction using Brandenburg’s
incitement language to restrict the non-commercial elements of
Bell’s speech, the District Court cited United States v. Raymond,
228 F.3d 804 (7th Cir. 2000), and United States v. Kaun, 827
F.2d 1144 (7th Cir. 1987). See Bell, 238 F. Supp. 2d at 704.
Unlike Raymond, the injunction in Kaun was not modeled on
Brandenburg’s incitement language, but rather barred the
defendant from aiding and abetting violations of the tax code.
Compare Kaun, 827 F.2d at 1146 n.1 with Raymond, 228 F.3d
at 815 n.7 (“[T]he words . . . in the Kaun injunction . . . have
been replaced by the words ‘Inciting other individuals and
entities to understate their federal tax liability, avoid the filing
of federal tax returns, or avoid paying federal taxes[.]’”).
19
necessity, or propriety of violence as a means of accomplishing
industrial or political reform; or who publish or circulate or
display any book or paper containing such advocacy; or who
justify the commission of violent acts with intent to exemplify,
spread or advocate the propriety of the doctrines of criminal
syndicalism; or who voluntarily assemble with a group formed
to teach or advocate the doctrines of criminal syndicalism.”
Brandenburg, 395 U.S. at 448 (internal quotation marks
omitted). The indictment charged that the defendant, a leader at
a Ku Klux Klan cross-burning rally, “did unlawfully by word of
mouth advocate or teach the necessity, or propriety of crime,
violence, or unlawful methods of terrorism as a means of
accomplishing political reform.” Id. at 449 n.3. In striking
down the statute the Court concluded that “we are confronted
with a statute which, by its own words and as applied, purports
to punish mere advocacy . . . . Such a statute falls within the
condemnation of the First and Fourteenth Amendments.” Id. at
449. The Court pronounced the rule that only advocacy
“directed to inciting or producing imminent lawless action and
is likely to incite or produce such action” may be proscribed.8
8
Courts have differed on whether Brandenburg protects
forms of expression other than advocacy in cases alleging
incitement of violence. Most courts “have generally demanded
that all expression, advocacy or not, meet the Brandenburg test
before its regulation for its tendency to incite violence is
permitted.” James v. Meow Media, Inc., 300 F.3d 683, 698-699
(6th Cir. 2002) (rejecting wrongful death claim against maker of
20
a violent video game); see also Dworkin v. Hustler Magazine,
Inc., 867 F.2d 1188, 1199-1200 n.8 (9th Cir. 1989) (rejecting
claim that pornography incites imminent lawless action against
women and holding that plaintiffs failed “to establish the ‘clear
and present danger’ required in order for any of the exceptions
to general first amendment principles to apply”); Herceg v.
Hustler Magazine, Inc., 814 F.2d 1017, 1022 (5th Cir. 1987)
(rejecting claim that article on auto-erotic asphyxiation incited
imminent lawless action and raising the question of whether
written materials could ever create culpable imminent
incitement under Brandenburg).
The Court of Appeals for the Fourth Circuit has
suggested Brandenburg protects only advocacy and not other
forms of speech claimed to incite lawless action. See Rice v.
Paladin Enters., Inc., 128 F.3d 233, 263-65 (4th Cir. 1997)
(holding publisher of an instruction manual on murder could be
found liable for aiding and abetting the commission of a crime).
The Paladin court concluded that “to understand [Brandenburg]
as addressing itself to speech other than advocacy would be to
ascribe to it an intent to revolutionize the criminal law . . . by
subjecting prosecutions to the demands of Brandenburg’s
‘imminence’ and ‘likelihood’ requirements whenever the
predicate conduct takes, in whole or in part, the form of speech.”
Id. at 265. In Paladin, the defendant stipulated to a set of facts
establishing aiding and abetting of murder as a matter of law,
moving the speech outside the protective orbit of the First
21
Id. at 447.
Although it has been employed by some courts, we
believe Brandenburg is the wrong tool for tailoring the
injunction in this case.9 The statute declared unconstitutional in
Amendment. See id. at 241. Brandenburg clearly does not
apply to the kind of unprotected or unlawful speech or speech-
acts (e.g., aiding and abetting, extortion, criminal solicitation,
conspiracy, harassment, or fighting words) at issue in Paladin
and here. Whether Brandenburg extends to lawful forms of
expression beyond “advocacy” – defined as “the act of pleading
for or actively supporting a cause or proposal[,]” Black’s Law
Dictionary 55 (7th ed. 1999) – is an issue for another case.
9
We also note that reliance on Brandenburg to justify an
injunction banning “materials designed to incite others to violate
the law” – without reference to imminence – is erroneous.
Under Brandenburg, only speech inciting imminent lawless
action may be restricted. See Hess v. Indiana, 414 U.S. 105, 108
(1973) (per curiam) (“[C]onstitutional guarantees . . . do not
permit a State to forbid or proscribe advocacy . . . of law
violation except where such advocacy is directed to inciting or
producing imminent lawless action.”) (emphasis in original)
(internal quotation marks omitted); see also Herceg, 814 F.2d at
1022 (“The crucial element to lowering the first amendment
shield is the imminence of the threatened evil.”) (citing Hess).
Furthermore, whether the required imminence exists in the
22
Brandenburg addressed the danger of advocacy provoking
violence. Its breadth of language aside, the case does not
support an affirmative ban of material posted on a website
advocating against the income tax.10 Moreover, the offending
portions of Bell’s speech may be restricted adequately on other
grounds, including false commercial speech (as discussed in Part
IIIA, supra) and aiding-and-abetting violations of the tax laws,
without raising constitutional questions or distorting
context of Bell’s website is questionable.
10
We do not mean to suggest that Brandenburg could never
serve as the basis to tailor an injunction applicable to a website
containing content directed toward inciting imminent lawless
action. For example, the case might find proper application to
restrain a website published by a hate group naming specific
groups or individuals as targets, or specifying instructions for
committing a crime. See Department of Justice, Report on the
Availability of Bombmaking Information, the Extent to Which Its
Dissemination is Controlled by Federal Law, and the Extent to
Which Such Dissemination May Be Subject to Regulation
Consistent with the First Amendment to the United States
Constitution, 37 (April 1997) (“[C]ulpability is premised, not on
defendant’s ‘advocacy’ of criminal conduct, but on defendant’s
successful efforts to assist others by detailing to them the means
of accomplishing the crimes.”), quoted in Paladin, 128 F.3d at
246. The report was commissioned by Congress in connection
with the Antiterrorism and Effective Death Penalty Act of 1996.
23
Brandenburg. Other courts have worded injunctions against tax
protesters like Bell without reliance on Brandenburg. See, e.g.,
Schiff, 379 F.3d at 629 (“Because we can uphold the injunction
as an appropriate restriction on fraudulent commercial speech,
we do not need to address the alternate [basis] cited by the
district court to support the injunction, inciting imminent lawless
behavior.”); Estate Pres. Servs., 202 F.3d at 1106; Buttorff, 761
F.2d at 1066-68 (5th Cir. 1985).11
Promoters of tax fraud who, like Bell, provide detailed
instructions and techniques to avoid paying taxes have been
prosecuted on aiding and abetting grounds in several cases
notwithstanding asserted First Amendment defenses. See
United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985)
(Kennedy, J.) (holding aiding-and-abetting liability possible
even if the speech “spring[s] from the anterior motive to effect
political and social change”). In this case, an injunction could
be just as effective and avoid raising constitutional questions if
it were written to ban false commercial speech and aiding and
abetting violations of the tax laws rather than
11
But see United States v. Buttorff, 572 F.2d 619, 624 (8th
Cir. 1978). In this earlier case against tax protester Gordon
Buttorff, the Court of Appeals for the Eighth Circuit upheld an
aiding and abetting conviction and noted that the defendant
“incited individuals to lawless acts.” Id. (citing Brandenburg).
This decision also omitted Brandenburg’s imminence
requirement.
24
Brandenburg incitement. Furthermore, wording the injunction
to forbid aiding and abetting would be more consistent with the
District Court’s finding that Bell’s materials were used to assist
tax violations, not merely advocate them.
Bell’s case is not the first where the breadth of an
injunctive order against a tax protester has skirted constitutional
limits. See Kaun, 827 F.2d at 1150. In Kaun, the Court of
Appeals for the Seventh Circuit construed an injunctive order
narrowly rather than remand to the district court to write a new
order. We will do the same here. See Ideal Toy Corp. v.
Plawner Toy Mfg. Corp., 685 F.2d 78, 83 (3d Cir. 1982). We
will construe paragraph 1(a) of the order to mean that Bell may
only be found in contempt for violating the order where the
evidence demonstrates that he advertised, marketed or sold false
tax advice, or aided and abetted others, directly or indirectly, to
violate tax laws. Cf. Kaun, 827 F.2d at 1151-52.12 We will also
12
The Kaun court construed an injunction against defendant
Dennis Kaun, a leader of tax protest meetings, such that “Kaun
may be found in contempt of the injunction under this paragraph
if the evidence shows that Kaun actually persuaded others,
directly or indirectly, to violate the tax laws, or if the evidence
shows that Kaun’s words and actions were directed toward such
persuasion in a situation where the unlawful conduct was
imminently likely to occur.” 827 F.2d at 1151-52. Given our
view that Brandenburg does not fit the facts of this case, we
prefer to rest the injunction solely on the grounds of false
25
construe the language in paragraph 3 ordering Bell to remove
“materials designed to incite others to violate the law (including
the tax laws)” as an order to remove materials aiding and
abetting violations of the tax laws.13 The remainder of the order
will be affirmed. Bell is free to criticize the tax system. Based
on grounds of false commercial speech and aiding and abetting
violations of the Internal Revenue Code, the order prohibits him
from further violation of the tax laws without raising
constitutional issues.
C.
Bell claims the District Court’s order to place the
injunctive order prominently on his website is forced speech
prohibited by the First Amendment. See Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, 515 U.S.
557 (1995) (holding unconstitutional under the First
Amendment a state law requiring private citizens who organized
a parade to include a group that wished to convey an unwanted
message). Bell also cites Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622 (1994). Among other differences, however, these
commercial speech aiding and abetting violations of the tax
laws.
13
As noted, the order to remove “materials designed to incite
others to violate the law (including the tax laws)” fails to
incorporate the required concept of imminence.
26
cases do not involve speech principally dedicated to selling
fraudulent and unlawful products and services.
In a commercial setting, the government may impose
reasonable regulations on content to prevent deception of
customers. Zauderer v. Office of Disciplinary Counsel of the
Supreme Ct. of Ohio, 471 U.S. 626, 650-51 (1985). Likewise,
we have held that mandatory disclosure of factual, commercial
information does not offend the First Amendment. See
Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 165
(3d Cir. 2001) (upholding injunction ordering health insurer to
publish corrective advertisement); see also Lorain Journal Co.
v. United States, 342 U.S. 143, 155 (1951); Envtl. Def. Ctr., Inc.
v. EPA, 344 F.3d 832, 849-51 (9th Cir. 2003), cert. denied, 124
S.Ct. 2811 (2004). In a case involving a tax protester website
and facts similar to this one, the Court of Appeals for the Ninth
Circuit upheld the requirement that the injunction be posted on
the website. Schiff, 379 F.3d at 630 -631 (9th Cir. 2004).
Posting the preliminary injunction on the website gives
notice to readers that Bell’s tax advice is bogus and unlawful.
Without this information, Bell’s readers could expose
themselves to criminal and/or civil liability for failure to declare
income and pay taxes. The First Amendment is not implicated
by this disclosure. We see no abuse of discretion.
D.
Bell contends the order’s requirement that he furnish the
government with a list of customers who bought his products or
27
services violates his First Amendment rights of free association.
The argument is meritless.
As noted, the record demonstrates that Bell’s operation
was primarily a commercial enterprise, not a political group.
Producing a customer list does not offend the First Amendment
because commercial transactions do not entail the same rights of
association as political meetings. See IDK, Inc. v. County of
Clark, 836 F.2d 1185, 1193-95 (9th Cir. 1988) (holding
escort/client relationship not protected). Bell relies on a number
of cases involving advocacy groups, including NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449 (1958) (reversing
compelled disclosure of membership list) and Gibson v. Fla.
Leg. Investigative Comm., 372 U.S. 539, 544 (1963), but they do
not fit the facts here. The one decision cited by Bell involving
tax protesters, In re First Nat’l Bank, Englewood, Co., 701 F.2d
115 (10th Cir. 1983), is inapposite. The groups in that case
made a prima facie showing that they were primarily engaged in
advocacy of tax reform, not the sale of tax evasion strategies,
and so the court remanded for an evidentiary hearing regarding
whether the government had a compelling need for the records.
Id. at 118. The courts that have considered this issue have held
that the government’s interest in enforcement of the tax laws
outweighs rights of association that may be implicated by
disclosure. See Kerr v. United States, 801 F.2d 1162, 1164 (9th
Cir. 1986); St. German of Alaska E. Orthodox Catholic Church
v. United States, 840 F.2d 1087, 1093-94 (2d Cir. 1988). Here,
the government has a compelling interest, among other things,
28
in determining whether Bell’s customers filed fraudulent returns
in violation of the Internal Revenue Code. See First Nat’l Bank
of Tulsa v. Dep’t of Justice, 865 F.2d 217, 220 (10th Cir. 1989).
In sum, the District Court did not abuse its discretion in
ordering Bell to disclose his customer list.
IV.
Subject to our construction of the injunctive order in part
III.B, we will affirm the judgment of the District Court.
29