First Amendment as a Successful Defense and an Unsuccessful One

Posted on June 25, 2017 by markinaustin

The 9th Circuit’s description of the matter:

When Transportation Security Administration (TSA) officers at Portland International Airport told John Brennan that he needed to undergo additional security screening because he tested positive for explosives, Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused — three times. After TSA officers had to close down the checkpoint and surround Brennan’s naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties. See 49 C.F.R. § 1540.109 (“No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.”).

Brennan’s core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Therefore, his conduct is not protected by the First Amendment.

Meanwhile, OR prosecuted Brennan for public nudity. Acquitted by the Judge, as follows, according to The Oregonian:

The judge sided with the defense, which cited a 1985 Oregon Court of Appeals ruling stating that nudity laws don’t apply in cases of protest.

“It is the speech itself that the state is seeking to punish, and that it cannot do,” Circuit Judge David Rees said.

Are both results correct? Neither? One, but not the other?

Filed under: Constitution, First Amendment, fun stuff, regulations, Travel | 10 Comments »

FYI – a chance to comment on a proposed regulation

Posted on November 27, 2013 by markinaustin

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today will issue initial guidance regarding qualification requirements for tax-exemption as a social welfare organization under section 501(c)(4) of the Internal Revenue Code.  This proposed guidance defines the term “candidate-related political activity,” and would amend current regulations by indicating that the promotion of social welfare does not include this type of activity.  The proposed guidance also seeks initial comments on other aspects of the qualification requirements, including what proportion of a 501(c)(4) organization’s activities must promote social welfare.

The initial guidance is expected to be posted on the Federal Register later today.

There are a number of steps in the regulatory process that must be taken before any final guidance can be issued.  Given the significant public interest in these and related issues, Treasury and the IRS expect to receive a large number of comments.  Treasury and the IRS are committed to carefully and comprehensively considering all of the comments received before issuing additional proposed guidance or final rules.

“This proposed guidance is a first critical step toward creating clear-cut definitions of political activity by tax-exempt social welfare organizations,” said Treasury Assistant Secretary for Tax Policy Mark J. Mazur.  “We are committed to getting this right before issuing final guidance that may affect a broad group of organizations.  It will take time to work through the regulatory process and carefully consider all public feedback as we strive to ensure that the standards for tax-exemption are clear and can be applied consistently.”

“This is part of ongoing efforts within the IRS that are improving our work in the tax-exempt area,” said IRS Acting Commissioner Danny Werfel.  “Once final, this proposed guidance will continue moving us forward and provide clarity for this important segment of exempt organizations.”

Organizations may apply for tax-exempt status under section 501(c)(4) of the tax code if they operate to promote social welfare.  The IRS currently applies a “facts and circumstances” test to determine whether an organization is engaged in political campaign activities that do not promote social welfare.  Today’s proposed guidance would reduce the need to conduct fact-intensive inquiries by replacing this test with more definitive rules.

In defining the new term, “candidate-related political activity,” Treasury and the IRS drew upon existing definitions of political activity under federal and state campaign finance laws, other IRS provisions, as well as suggestions made in unsolicited public comments.

Under the proposed guidelines, candidate-related political activity includes:

1.      Communications

  • Communications that expressly advocate for a clearly identified political candidate or candidates of a political party.
  • Communications that are made within 60 days of a general election (or within 30 days of a primary election) and clearly identify a candidate or political party.
  • Communications expenditures that must be reported to the Federal Election Commission.

2.      Grants and Contributions

  • Any contribution that is recognized under campaign finance law as a reportable contribution.
  • Grants to section 527 political organizations and other tax-exempt organizations that conduct candidate-related political activities (note that a grantor can rely on a written certification from a grantee stating that it does not engage in, and will not use grant funds for, candidate-related political activity).

3.      Activities Closely Related to Elections or Candidates

  • Voter registration drives and “get-out-the-vote” drives.
  • Distribution of any material prepared by or on behalf of a candidate or by a section 527 political organization.
  • Preparation or distribution of voter guides that refer to candidates (or, in a general election, to political parties).
  • Holding an event within 60 days of a general election (or within 30 days of a primary election) at which a candidate appears as part of the program.

These proposed rules reduce the need to conduct fact-intensive inquiries, including inquiries into whether activities or communications are neutral and unbiased.

Treasury and the IRS are planning to issue additional guidance that will address other issues relating to the standards for tax exemption under section 501(c)(4).  In particular, there has been considerable public focus regarding the proportion of a section 501(c)(4) organization’s activities that must promote social welfare.  Due to the importance of this aspect of the regulation, the proposed guidance requests initial comments on this issue.  The proposed guidance also seeks comments regarding whether standards similar to those proposed today should be adopted to define the political activities that do not further the tax-exempt purposes of other tax-exempt organizations and to promote consistent definitions across the tax-exempt sector.

Filed under: First Amendment, Open Thread, regulations, taxes | 21 Comments »

Break out the checkbooks

Posted on January 30, 2013 by novahockey

The FEC has updated the campaign contribution limits for the 2014 cycle.

FEC Increases Contribution Limits for 2014
By Kyle Trygstad Posted at 10:19 p.m. on Jan. 29

The Federal Election Commission increased the limits on contributions that individuals can give to candidates for federal office and national party committees in the 2014 election cycle.

Individual donors can now contribute up to $2,600 to a candidate in both the primary and general elections — $5,200 total — and $32,400 per calendar year to national party committees. The total amount of federal contributions that an individual can give during a two-year cycle also increased to $123,200, including $48,600 to candidates and $74,600 to parties and political action committees.

Those and other contribution limit figures are indexed for inflation as directed in the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold, and generally increase with every election cycle.

The individual donation to candidates has gone up about $100 per election — from $2,100 in the 2006 cycle to $2,300 in 2008, $2,400 in 2010 and $2,500 in 2012. Individual donation limits to national party committees was $30,800 per calendar year in 2012 and $26,700 in 2006.

This cycle, the limit on national party contributions to Senate candidates went up to $45,400. They were limited to $43,100 in 2012 and $37,300 in 2006.

Filed under: First Amendment | Tagged: | 8 Comments »

Discrimination in Public Accommodations

Posted on August 17, 2012 by Mike

A post by Eugene Volokh on VC talks about a recent jury award under the CA public accommodations anti-discrimination statute against a (Muslim) hotel owner that kicked out a Friends of the IDF gathering. I think the major issue is whether property owners are free to discriminate on the basis of non-religious (or religious) beliefs. A secondary issue is whether property owners can discriminate on the basis of speech (Note: it is not clear to me whether the Friends of the IDF gathering was just a party or a fundraiser with speeches, etc.).

The link to the LA Times article has a little more information on the background.

So, an additional question is: should we have different rules for property owners in different states? Volokh makes it sound as if this result is specific to CA.

Filed under: First Amendment, law | 50 Comments »

Religious Freedom Under Attack

Posted on October 4, 2011 by quarterback

A week or two ago, we briefly discussed the future of religious freedom in the Supreme Court, with Mark posing a question about how the Court would deal with laws against polygamy, if such a case came up. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the issue is the existence and scope of the “ministerial exception” recognized by all federal courts of appeal to protect religious organizations from employment-related lawsuits. The Obama Administration has taken the position in its brief filed on behalf of the EEOC (see Brief of Federal Respondents at the link) that there is no ministerial exception under the Constitution, and, as a fall-back position, that if there is such an exception it should be limited to persons “who perform exclusively religious functions” (emphasis added).

This case and the position of the Obama Administration may have sweeping significance to the future religious freedom. Who, if anyone, has “exclusively” religious functions? As some have pointed out, the Pope probably does not even meet this test. If there is no ministerial exception at all, then haven’t we opened the floodgates to lawsuits against churches and other religious organizations, and forever entangled the courts in their affairs? And, stepping back, consider how the ever-expanding reach and proliferation of federal regulation itself creates these conflicts and entanglements. The more the government regulates, the more conflicts with religious freedom it creates.

Filed under: Constitution, First Amendment, legal theory, rights theory, Supreme Court | Tagged: | 81 Comments »

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