Backdoor Censorship

What counts as commercial speech?


Irwin Schiff believes the income tax is unconstitutional. He believes it so strongly that he's built a whole business out of promoting his theories. He's written books and lectures, and teaches seminars about how to pay zero taxes. The IRS, unsurprisingly, takes a dim view of this. Schiff is currently being prosecuted for tax evasion. The court has also issued an injunction that prohibits the sale of Schiff's book, The Federal Mafia: How the Government Illegally Imposes and Unlawfully Collects Income Taxes. Earlier this month, the 9th Circuit upheld the injunction on appeal. Schiff claimed that the prohibition violated his right to free speech, since the book is primarily a political and historical argument. The court disagreed, saying that the book is commercial speech.

Commercial speech has historically been granted fewer protections than other kinds of speech. In particular, fraudulent and misleading advertising is illegal, whereas there is no law against false or misleading political speech. Anyone who wants to can argue, "Income tax is illegal" or "The end of the world is upon us" or "Property is theft," regardless of the merit of those beliefs. On the other hand, if a manufacturer claims his chocolate is fat-free when it really isn't, he's in for some heavy fines.

The line between commercial and noncommercial speech, however, is anything but clear. Many publications have a commercial component along with a political, religious, or artistic component. A movie with product placements for Pepsi and Domino's pizza surely should not lose its status as artistic speech. Even a clever TV ad for Pepsi or a cutting-edge music video—each designed primarily to sell a product—can strike the viewer as being a work of art, not just a commercial advertisement.

The Federal Mafia is a political tract explaining Schiff's views about United States tax law. Along with his legal theories, he alerts the reader to his other products, which are designed to help people apply his theories to their own tax returns. As Judge Procter Hug Jr., writing the majority opinion, points out, "Schiff can relate his long history with the IRS and explain his unorthodox tax theories without simultaneously urging his readers to buy his products." That may well be true. But in banning the book, the opinion does not make clear which portions of the book constitute commercial speech and which would be protected if published separately. Surprisingly, no material from The Federal Mafia itself is quoted in the opinion to establish that it contains commercial speech. Instead, the opinion quotes "inserts" from the book, which presumably could be easily removed, and advertising of the book itself from Schiff's website and the cover of the book.

Based on the fact that The Federal Mafia is advertised and sold together with Schiff's other products, the judge claims that the book plays an "integral part…in Schiff's whole financial program" and thus is commercial speech. Unfortunately for free speech believers, a huge number of books take part in this soft form of advertising. Science fiction paperbacks with order forms at the back, astrology books that advertise personalized readings, even any book with a list of other books by the same author could be seen as commercial speech under such a broad interpretation. Allen Lichtenstein, general counsel of the ACLU of Nevada, which filed an amicus brief in the case, says the expansive definition of commercial speech in the ruling "opens a Pandora's box for the government to decide what theories are correct and what theories are incorrect." Any publication that a court decides is false and that is packaged with any kind of advertisement could be banned. This could open a huge backdoor for censorship.

The courts have said that regulating commercial speech is unproblematic because commercial messages are not important in the way that political, religious, and artistic speech is. But commercial speech can be critical to decision making in a free-market economy, just as political speech is critical to decision making in a democracy. Even more important, an expansive power to regulate and ban commercial speech could erase many of the protections we take for granted. In our society, speech has a commercial component more often than not. Irwin Schiff's beliefs about the legality of the income tax may in fact be wrong and dangerous to others, but taking away his right to advertise those beliefs is even more dangerous.