According to a report in today’s New York Times, “a website that sells materials stating that individuals can legally stop paying taxes has been shut on the order of a federal judge.”
The website, run by two organizations called We The People Foundation for Constitutional Education and the We The People Congress, argued that the U.S. tax code deceives people into paying taxes. It promoted a national campaign—“operation stop withholding”—to persuade employees not to have payroll taxes deducted from their paychecks.
Let us stipulate what is plain to see: that the defendants in this case are avaricious crackpots. Nonetheless, they claim in their defense that the “speech” contained on their now-shuttered website is protected by the First Amendment.
It is well-established in law that “commercial speech” does not enjoy the same kind of protection as political speech. Thus Judge Thomas J. McAvoy, in his 25-page decision, notes that “to the extent defendants’ speech can be considered commercial speech, it may be enjoined because the government may prohibit false, misleading, or deceptive commercial speech, or speech that promotes unlawful conduct.”
So far, all this is uncontroversial. But Judge McAvoy goes on to conclude that even if we assume that the defendants’ speech “to be political in nature, it still may be enjoined.” The First Amendment, he notes, “does not protect speech that incites imminent lawless action.”
This, too, is not really controversial, or it shouldn’t be. But it sits awkwardly with the New York Times’s regular assertions that it is itself free to violate the laws governing the publication of classified information. Such speech also “incites imminent lawless action.” Not only that, such incitement is typically accompanied by the lawless action itself—namely, the publication of classified secrets in the New York Times’s own pages.
Granted, there is a world of difference between a great newspaper and a crackpot website. And there is a world of difference between promoting illegal tax-evasion activity and promoting the illegal publication of U.S. national-security secrets (although in some cases I am not sure which is worse). But the law is the law, and in both instances its violation is plainly being advocated.
Judge McAvoy put the conduct of the tax-evasion schemers to several legal tests, all of which they flunked. If we apply some of those same tests—not all of them are relevant—to the New York Times, how does it come out?
The first is “the gravity of harm.”
With regard to the New York Times’s publication of classified details of the NSA’s terrorist-surveillance program in December 2005, “the gravity of harm” is easy to demonstrate. A long list of high-ranking officials—Democrats and Republicans alike—have attested to the damage done by the Times to our efforts to thwart a second September 11.
The second is “the extent of defendant’s participation.”
The answer here is obvious on its face. The editors and publisher of the Times are, as the judge ruled in the tax-evasion case, “the primary figures in establishing the plan and encouraging others to participate in it”—the plan, in the case of the Times, being to publish classified information.
The third is the “degree of scienter,” or intent.
The tax evaders, the judge found, were “well aware (or should have been aware) that their assertions have been consistently rejected by the courts.” In the case of the Times, the issues involving publication of national-secrets have rarely come before the courts, but the few precedents that exist do not support the Times. Moreover, the law, especially Section 798 of Title 18—which proscribes the publication of classified information about “communications intelligence”—is unambiguous. Even more pertinently here, it lacks a scienter requirement. Committing the act itself, even without intent, is sufficient to constitute a violation.
The fourth is the “isolated or recurrent nature of the infraction.”
The tax evaders, the judge concluded, were serial offenders. So, too, when it comes to both advocating and publishing classified information, is the New York Times.
The fifth is the “defendants’ recognition (or non-recognition) of their own culpability.”
The tax evaders, notes the judge, “express no recognition of their culpability.” Neither do the editors of the New York Times. They continue to claim that they are exempt from the law. The words of the judge would seem to apply to them quite aptly: “Given defendants’ long-time pursuit of these goals, it is easy to conclude that they are likely to continue to engage in their conduct if not enjoined from doing so.”
The sixth is “the likelihood that defendants’ occupation would place them in a position where future violations could be anticipated.”
Once again—as with the tax evaders, so with the New York Times and violations of the laws of secrecy: “It is a virtual certainty,” ruled the judge, “that, absent injunctive relief, future violations can be anticipated.”
Of course, this entire issue is in all likelihood purely theoretical. The basic rule of politics was adumbrated long ago by Mark Twain: never pick a fight with those who buy ink by the barrel. The Bush administration, even as it is being accused of waging “a war against the press,” has been following this rule scrupulously.