The First Amendment and Tax Exemptions for "Hate" Groups

Just testified this morning before the House Ways & Means Committee Oversight Subcommittee about this.

|The Volokh Conspiracy |

Here is my testimony, in case our readers find it interesting.

* * *

Dear Chairman Lewis, Ranking Member Kelly, and Members of the Committee:

Many thanks for inviting me to testify about "How the Tax Code Subsidizes Hate." The Tax Code indeed subsidizes hate, just as it subsidizes Socialism, Satanism, and a wide variety of dangerous and offensive ideas. Under the First Amendment, tax exemptions have to be distributed without discrimination based on viewpoint; that means that evil views have to be treated the same way as good views.

1. The Supreme Court has repeatedly made clear that tax exemptions can't be denied based on the viewpoint that a group communicates. This was first made clear in Justice Brennan's opinion in Speiser v. Randall (1958), which struck down a denial of a property tax exemption to people and organizations that "advocate[] the overthrow of the Government of the United States . . . by . . . violence . . . or who advocate[] the support of a foreign government against the United States in the event of hostilities":

[A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. It is settled that speech can be effectively limited by the exercise of the taxing power. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. . . . [T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is "frankly aimed at the suppression of dangerous ideas."[1]

The Supreme Court reaffirmed this in 1983, and again in 1995.[2] Though "the Government is not required to subsidize" speakers, once it chooses to provide such a subsidy—including through "tax deductions for contributions"—it must abide by "the requirement of viewpoint neutrality in the Government's provision of financial benefits."[3] And the U.S. Court of Appeals for the D.C. Circuit has specifically applied this to denials of a 501(c)(3) tax exemption, holding that "in administering the tax code, the IRS may not discriminate on the basis of viewpoint" (there, against pro-Israel speech that departed from the Administration's foreign policy).[4]

2. The Court has also made equally clear that excluding speech that manifests or promotes "hate" is forbidden viewpoint discrimination. The Court said so unanimously in Matal v. Tam, which struck down a rule that excluded "disparag[ing]" trademarks from certain kinds of trademark enforcement benefits.[5] In Matal, the Patent and Trademark Office refused to register the trademark "The Slants," because it perceived the mark as a derogatory term for Asians. This refusal was just the denial of a benefit; no-one was being threatened with jail or fines for using the name—owners of this mark were just not being given access to certain useful remedies against those who would infringe the mark. But the Court still concluded that such exclusion of disparaging marks was forbidden viewpoint discrimination.[6]

3. The law may treat groups differently based on their actions, but not based on the views they express. Thus, for instance, in Bob Jones University v. United States, the Supreme Court upheld the denial of a tax exemption to a university that banned interracial dating by its students, and that threatened to expel students who violated the ban.[7] Likewise, in Christian Legal Society v. Martinez, the Supreme Court held that public universities could deny generally available benefits to student groups based on those groups' exclusionary membership policies.[8] But the government may not deny tax exemptions or similar benefits to universities, churches, student groups, or other groups simply because they advocate against interracial dating, or against interfaith dating, or against same-sex dating. As the Court made clear in Christian Legal Society,

Although registered student groups must conform their conduct to the Law School's regulation by dropping access barriers, they may express any viewpoint they wish—including a discriminatory one. Today's decision thus continues this Court's tradition of "protect[ing] the freedom to express 'the thought that we hate.'"[9]

4. Groups may be denied tax exemptions for deliberately engaging in speech that falls within one of the few narrow exceptions to the First Amendment, such as true threats of criminal attack, or incitement intended to and likely to cause imminent criminal conduct. But "hate speech" writ large doesn't fall within any such exceptions, as cases such as Matal and Christian Legal Society make clear.

And any such rule denying tax exemptions for constitutionally unprotected speech must itself be administered in a viewpoint-neutral way. For instance, if Congress enacts a statute denying tax exemptions to groups that engage in libel, or threats, or incitement, that statute would equally have to cover racist groups, anti-police groups, animal rights groups, and any other groups.[10] Likewise, if the government enforces bans on fraudulent fundraising by 501(c)(3) educational groups, it must do that for all kinds of groups, regardless of viewpoint.

5. Tax exemptions cannot be limited (as the IRS once tried to limit them) to groups that "present[] a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion."[11] Any such test, the D.C. Circuit has held, "lacks the requisite clarity, both in explaining which applicant organizations are subject to. the standard and in articulating its substantive requirements."[12]

It's possible that tax exemptions to advocacy groups might be allowed only for groups that support their arguments with "intellectual exposition" consisting of "a rational development of a point of view," rather than merely "expres[ing] . . . emotions" (in the words of a 1983 D.C. Circuit decision, which the IRS has since adopted into its regulations).[13] I'm not certain this is so; I think the Supreme Court may well conclude that this so-called "methodology" standard, like the "sufficiently full and fair exposition" standard, is so subjective as to provide too much room for deliberate or subconscious viewpoint discrimination.[14]

But even if such a "methodology" test is sufficiently clear to be constitutional, it must be applied in a way "neutral with regard to viewpoint."[15] Indeed, the government's argument in favor of such a test, which the D.C. Circuit decision approved, stressed that the test supposedly "leads to the minimum of official inquiry into[,] and hence potential censorship of, the content of expression, because it focuses on the method of presentation rather than the ideas presented."[16]

So if the IRS wants to deny tax exemptions to groups that spread certain ideas on the grounds that those groups are too "emotional" rather than "intellectual" or "rational" in their arguments, it must apply precisely the same standard to all groups—animal rights groups, pro-life groups, pro-gun-control groups, and more. And courts will then have to decide whether the government is indeed treating all viewpoints equally in that respect.

It's also not clear that much would be gained from requiring hate groups to support their views using factual arguments (which could easily be based on pseudoscience), or pressuring them to add the patina of "reasoned development" to their claims. Advocates of any position, however wrong-headed, can always cherry-pick some facts that they could use to buttress their arguments. And the IRS can't decide whether those arguments are correct; as the D.C. Circuit recognized, "because of First Amendment considerations, . . . the government must shun being the arbiter of 'truth.' Material supporting a particular point of view may well be 'educational' [and thus entitled to a tax exemption] although a particular public officer may strongly disagree with the proposition advocated."[17]

As a result, having the IRS focus on the "methodology" of a group's arguments is unlikely to effectively sort good advocacy groups from bad ones. But it would exacerbate the risk that government officials will succumb to the normal human impulse to apply the rules selectively to their political enemies.[18]

6. Of course, many Americans are understandably upset that their tax money flows—whether through tax exemptions or through university student group funding policies or subsidies for mailing newspapers or books—to views that they believe (perhaps quite correctly) to be evil. Many religious people are understandably upset when they have to subsidize blasphemy. Many pro-life advocates are understandably upset when they have to subsidize pro-choice groups, and vice versa.

Police officers and their friends and families may be understandably upset when their taxes go to speech that sharply condemns the police, and perhaps even creates a climate that encourages anti-police violence. In the 1950s, many Americans were understandably upset when tax exemptions benefited advocacy of Communist revolution and Communist tyranny (which explains the law struck down by the Court in Speiser v. Randall). And of course many Americans are understandably upset when tax exemptions benefit speech that is hateful towards blacks or whites or Jews or Muslims or evangelical Christians or any other group.

But giving the government the power to discriminate against some such viewpoints necessarily means the government will also have the power to discriminate against others. Would we feel comfortable giving this power to the Trump Administration? If we would, would we feel comfortable giving it to a possible Sanders Administration? I doubt there are many people who would trust both those Administrations; and this distrust of government power is one reason the First Amendment exists.

Many campaigns for democracy, liberty, and equality have been greatly helped by the First Amendment, and by courts' willingness to enforce the First Amendment. But the Court has recognized that this protection against governmental suppression of speech must apply to foes of these principles as well as friends. As Justice Brennan wrote in NAACP v. Button (1963)—an important win for the NAACP—the NAACP's civil rights mission was "constitutionally irrelevant" to the Court's First Amendment analysis. "The course of our decisions in the First Amendment area makes plain that its protections would apply as fully to those who would arouse our society against the objectives of the [NAACP]. For the Constitution protects expression and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered."[19]

"[T]he freedoms . . . guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish."[20] Justice Black wrote this in dissent in 1950, arguing for the rights of Communists. The Supreme Court adopted this principle in a majority opinion in 1972, protecting the Students for a Democratic Society's right of equal access to public university facilities. Those were wise words then, and they remain so today.

[1] 357 U.S. 513, 516, 518-19 (1958).

[2] Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548 (1983); Rosenberger v. Rector, 515 U.S. 819, 834 (1995).

[3] Rosenberger, 515 U.S. at 819.

[4] Z Street v. Koskinen, 791 F.3d 24, 30 (D.C. Cir. 2015).

[5] 137 S. Ct. 1744 (2017).

[6] There were two opinions in the case, one joined by four Justices and one by four others, but both opinions made clear that the exclusion of disparaging marks was unconstitutionally viewpoint-based. Id. at 1763 (Alito, J.) (lead opinion); id. at 1766 (Kennedy, J., concurring in part and concurring in the judgment). Justice Gorsuch had not yet been confirmed to the Court when the case was argued, so only eight Justices participated.

[7] 461 U.S. 574 (1983).

[8] 561 U.S. 661 (2010).

[9] Id. at 696 n.26. Likewise, in Runyon v. McCrary, 427 U.S. 160 (1976), the Court held that the government may ban race discrimination by private schools, but only after distinguishing educational institutions that engage in "the practice of excluding racial minorities" (which can be forbidden) from those that promote "the belief that racial segregation is desirable" (which is constitutionally protected). Id. at 176.

[10] See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

[11] Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1034 (D.C. Cir. 1980).

[12] Id. at 1036.

[13] National Alliance v. United States, 710 F.2d 868, 872 (D.C. Cir. 1983); Rev. Proc. 86-43, 1986-2 C.B. 729.

[14] For instance, in Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876, 1891 (2018), the Supreme Court struck down a ban on an ill-defined category of "political" expression at polling places, reasoning:

It is "self-evident" that an indeterminate prohibition carries with it "[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation." Election judges "have the authority to decide what is political" when screening individuals at the entrance to the polls. We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge's own politics may shape his views on what counts as "political."

[15] National Alliance, 710 F.2d at 875.

[16] Id.

[17] Id. at 873-74.

[18] See, e.g., True the Vote, Inc. v. IRS, 831 F.3d 551, 559 (D.C. Cir. 2016) (quoting 2013 Treasury Inspector General for Tax Administration report called "Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review," and noting that, among other things, "The Determinations Unit [of the IRS] developed and used inappropriate criteria to identify applications from organizations with the words Tea Party in their names."); Kelly Phillips Erb, Why Justice Matters: The Income Tax Trial of Martin Luther King, Jr., Forbes, Jan. 15, 2018 (discussing IRS targeting of Martin Luther King, Jr.); Chuck Hobbs, Dr. Martin Luther King Jr. [and] the IRS, Tallahassee Democrat, http://blogs.tallahassee.com/community/2014/01/19/hobbs-sunday-conversation-dr-martin-luther-king-jr-ans-the-irs/ (discussing IRS targeting of King and the Southern Christian Leadership Conference, as well as of "religious organizations dubbed 'extremist groups'").

[19] 371 U.S. 415, 444-45 (1963).

[20] Healy v. James, 408 U.S. 169, 188 (1972) (quoting Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 37 (1961) (Black, J., dissenting)).

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  1. Thanks for this. One question: how do union dues subsidizing speech you don’t like (Janus v. AFSCME) differ from taxes doing the same?

    1. Can you elaborate a little on your question? If you’re just asking why compelling people to pay union dues that go to speech they oppose is different from compelling people to pay taxes that go to speech they oppose, I think there isn’t a difference (see Will Baude’s and my Harvard Law Review article). All Justices in Abood, though, disagreed with our position.

      1. I would say there is a difference between compelling union dues towards speech and taxation towards speech.

        The government, in many respects, is required by law to be viewpoint neutral. There are a variety of provisions in the government code that prevent, for example, a GOP government majority from deciding to pass a law that directly spends a few billion towards electing future GOP candidates.

        The compelling of union dues, and the direction of the funds directly to the union (essentially avoiding government control…and the provisions that restrict the above partisan government spending) is what is problematic. The government could, if it chose, grant money directly to the union from government coffers. But “directing” the money without the legal checks and balances over such funds is what is prone to abuse.

    2. Union dues are a direct subsidy for Union Leader Speech.

      A tax deduction is at worst an indirect subsidy, affecting all taxpayers indirectly.

      These are different in kind, so they deserve different treatment.

    3. The union dues were used to subsidy speech the payer didn’t like, just like taxes are used to subsidy speech the payer didn’t like.

      In this case, the payer’s viewpoint was used to determine how much in taxes he owed, not how the money was spent. The analog to union dues would be if the government charged more in dues for those whose speech it disagreed with. I have little doubt Eugene would agree that is unconstitutional.

      1. The problem with union dues is more moral than it is legal. Nobody likes compelled speech, especially when it involves money taken from you. The government is bad enough, but at least there’s viewpoint neutrality. Try telling a union worker to go find a different job after 30 years if they don’t like the union’s politics (which they may have liked or tolerated in the past). Start telling people they have to choose between not being compelled to speak and putting food on the table and tell me how that goes. Conditional rights, even if they’re just perceived as rights, never goes over well. Tell someone they have to move, change jobs, take less pay, be far away from family, upend their kid and change schools, get new social circles, change their environment, increase costs, etc. just to not be forced to pay to support speech they don’t like…it’s inexcusable. That’s why right to work exists in the first place. Union shops are reprehensible and I say that as someone who worked in one in college and was a member of UFCW 1776.

        1. I was a Member of Local 951 myself. 23,000 Members at the time. All Meijer Employees in Michigan. This was 1985 to 1995.

  2. Thank you for so ably representing this point of view, Prof. Volohk, in opposition to those who seek to use a label, “hate group” or “hate speech,” to mean, “speech I hate and therefore wish to see the government prohibit or hinder notwithstanding the First Amendment.”

    This is indeed pro bono publico service on your part, and you’re a credit to the legal profession for the zeal and skill you display in performing it.

  3. 1)What Beldar says above.

    2)It’s worth repeating *why* free speech absolutism is a good thing: censorship of various kinds would be a good thing if we could always guarantee benevolent censors. Unfortunately, nothing in history suggests that a currently benevolent government won’t eventually go rogue and seek to keep itself in power by suppressing dissent. When they do so, they find a way to wrap their suppression in some kind of attractive label (‘for the children!’).

    Simply put, our country isn’t designed to work only when run by altruistic saints; it is expressly designed so that freedom survives even when evil people eventually rise to power, by allowing the means (dissent, et al.) to force them from power.

    1. “censorship of various kinds would be a good thing if we could always guarantee benevolent censors.”

      Why? Maybe they’re benevolent but mistaken.

      1. “Why? Maybe they’re benevolent but mistaken.”

        Good point! s/benevolent/benevolent and omniscient/.

        (admittedly, the supply of those is even smaller than the merely benevolent)

        1. No! Why is that so hard to understand? You sound like you are trying really hard to find some excuse for dictatorship.

          Benevolent and omniscient just now, or for all time?

          What was omniscient in 1800 was not so in 1900 or 2000.

          Racism was justified on Africans being inferior subhumans. What would an 1800-omniscient censor have done to reports showing otherwise?

          No No No, a thousand times no!

          1. Every American should be a Madisonian in thinking, that men are not angels and we are not governed by angels, so let’s have some auxiliary precautions, but your formulation presupposes that the more modern a political culture or idea, the more enlightened and better it is, and that is just not the case.

            Scientific progress advances, to be sure, but the culture can, and usually does, get more debased. In many ways, the ideas of 1800 are better than 2019.

            1. All that for no answer?

              What does omniscient mean of not all-knowing?

              What would an omniscient benevolent censor do to any tract in 1800 which suggested Africans were full-fledged humans? It would ban it, according to 1800 accepted wisdom.

              What clearer example is there of the nonsense that is a “benevolent omniscient” censor?

            2. “…the ideas of 1800 are better than 2019.”

              How are you defining “the ideas” of 1800 and 2019? Seems silly. But I’ll bite. Which ones?

              1. For all we know, it’s the one I listed:

                Racism was justified on Africans being inferior subhumans. What would an 1800-omniscient censor have done to reports showing otherwise?

                Or else that’s a hateful idea which he would censor in his benevolent omniscience.

              2. How about the idea that sex was assigned at birth? Or the idea that a man sodomizing another man wasn’t engaged in a “marital act?”

              3. Here is an example of 1800 values being better than 2019 values, with the location of the example ideally suited to show the juxtaposition.

                Yesterday, under the arch built in honor of George Washington’s inauguration, with carvings of Fame, Valor, Wisdom and Justice and the inscription, “Let us raise a standard to which the wise and the honest can repair,” a major Democratic presidential candidate named Elizabeth Warren said to a cheering crowd, ““We’re not here today because of famous arches or famous men. In fact, we’re not here because of men at all.” She said “men” like it was a swear word.

                1. I’m a little surprised to hear that you share Elizabeth Warren’s views of men. I don’t, so I certainly would cite her to show what the values of this present age are. Instead, I would cite the the millions of ordinary Americans who recognize that there are differences between men and women, but that they all deserve to be treated as individuals. And that, I do think, is an improvement on the ideas from the 1800s.

                  1. Not sure if you’re confused, or making a dig. Satire really is difficult to pull off on the internet, because you can’t tell if a comment is serious or not.

                    Maybe you don’t understand that Warren was denigrating men and American history and disparaging what was being honored by the arch, values that are radically different from each other.

                    1. I’m not confused at all. You chose Elizabeth Warren as representing 2019 values. I disagree that she is representative of 2019 values and believe that the actually representative 2019 values regarding the relations between the sexes are indeed better in 2019 than they were in the 1800s.

                    2. Elizabeth Warren had a cheering crowd behind her when she said what she said, which did not appear in her fever dreams from nowhere, but actually represent the zeitgeist that bubbled up to her mind as the thinking of about half the country, something even you must admit as she stands a good chance of becoming president if she gets her party’s nomination. Yes, sadly, or happily to some, Warren represents 2019 values, like it or not.

                      I also note that you glide past the part where she denigrates American history and its founders. That right there, a lack of respect for those who labored to build the richest most flourishing civilization in the history of the world, is also some 2019 values right there for you. Yes, yes, the past wasn’t perfect, blah blah.

                      If you think relations between the sexes are better today than in 1800, than that, my friend, is a matter of opinion. Note, I didn’t focus on “relations between the sexes”, that’s your bailiwick. I figured it was obvious that misandry as a 2019 value was what I getting at.

                    3. “Elizabeth Warren had a cheering crowd behind her”

                      Oh wow, cheering crowds at a political rally.

                      “which did not appear in her fever dreams from nowhere, but actually represent the zeitgeist that bubbled up to her mind as the thinking of about half the country”

                      Not really. Just like Trump’s statements made before cheering crowds at his rallies don’t represent the other half of the country.

                      “I also note that you glide past the part where she denigrates American history and its founders.”

                      If you think that’s bad, you should see what the founders said about each other. When they weren’t shooting at each other, that is.

                      “If you think relations between the sexes are better today than in 1800, than that, my friend, is a matter of opinion.”

                      I’m certainly not interested in spending enough time to make a compelling factual case for it, so I’ll concede. But “[s]cientific progress advances, to be sure, but the culture can, and usually does, get more debased. In many ways, the ideas of 1800 are better than 2019,” is also just your opinion.

                      “Note, I didn’t focus on “relations between the sexes”, that’s your bailiwick. I figured it was obvious that misandry as a 2019 value was what I getting at.”

                      While completely ignoring misogyny in the 1800s. Your one-sided focus is part of your problem.

      2. Whether they are benevolent or not depends on whether you agree with them or not.

      3. The Benevolent but mistaken people are often worse than outright tyrants. I remember the Dry Forces who imposed local option prohibition 1953-1968, fifteen years of bootlegging joints like Bloody Bucket and Sugar Shack in the news. Sanctimonious prigs. Add Michael Bloomberg and David Hogg to the list.

        “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth.”
        – C.S. Lewis

    2. The professor covered that:

      Would we feel comfortable giving this power to the Trump Administration? If we would, would we feel comfortable giving it to a possible Sanders Administration? I doubt there are many people who would trust both those Administrations; and this distrust of government power is one reason the First Amendment exists.

      No no no to any kind of censors, including benevolent.

      1. So, there is no place for a shared understanding of some content that should be restricted in some ways or at some times…porn on a billboard and all that? Individual rights always trump a collective right to draw some lines somewhere?

        1. “Shared understanding” means the majority gets to thump the minority?

          I see you are proposing yourself as the benevolent omniscient censor for everybody. No thanks. Fuck off, slaver.

          1. No, fool, I’m not proposing any benevolent omniscient censor, that’s a nice straw man there you constructed. I’m proposing a democratic majority censor. BIG DIFFERENCE.

            Alphabet soup would like porn on daytime TV, some guy taking in the poop chute on a billboard where any kid can ride his bike by, perhaps hookers hawking their wares (free speech) next door to a church or school, advertisements on TV for cannabis and opioids, you name it. Individual rights trump EVERYTHING, eh?

  4. Interesting question, about what has changed in our culture that one has to make a constitutional argument here, buttressed only by Supreme Court cases, rather than the “free speech for all” being a given culturally a priori.

    1. They probably invited multiple people who did make the cultural/moral argument for free speech, but I’d expect Volokh was invited specifically to illustrate the constitutional issues. It is his specialty, after all.

      1. gormadoc: No, it turns out that I was the only one speaking against denials of tax exemptions based on a group’s being a “hate group.”

        1. From the online materials, it looks like three of the five witnesses didn’t talk about the tax code at all.

          1. JPH12,
            You beat me to it in investigating the catalyst for the hearing. I now though have downloaded all the testimony.
            I’m still curious whether there is a Bill being considered as the reason for the Hearing. At least some of these hearings are scheduled after the introduction of a relevant bill, e.g. the Senate Judiciary hearing on ERPO legislation was after the introduction of Rubio’s and Feinstein’s Bills.
            I however didn’t notice anything at the W&M’s page for this hearing. Anybody know whether any Bill has been submitted yet for such atrocious legislation?

        2. Well, that’s atrocious then. Thank you for being the lone voice of reason.

        3. I’m surprised the Progressive Dems allowed you to speak before their committee although it may be you are the token so they can claim they were bipartisan.

    2. What’s changed is that the left now assume they’ll get to be the censors, so they see no practical reason to support freedom of speech, which they only ever supported because they expected to be the first people censored.

    3. Not sure much has changed — everything old is new again, as is suggested by my citation to Speiser v. Randall (1958), a case involving an attempt to deny tax exemptions to people who support Communist revolution. Nor do I think public attitudes were that much better from the 1960s to the 2010s. “Free speech for me but not for thee” is a normal human reaction, in America as well as elsewhere.

      1. “Nor do I think public attitudes were that much better from the 1960s …”

        FWIW, I recall a lot of very, very acrimonious language during the desegregation/civil rights era that stretched into the 1960’s. I don’t recall either side trying to censor the other, though (even censorship lite, like futzing with tax exemptions). Does anyone else recall such things in that era? Perhaps my memory has rose tinted glasses.

        ‘“Free speech for me but not for thee” is a normal human reaction…’

        No argument there 🙁

        (FWIW, some googling does turn up NAACP tax controversies in 1939 and 1957. Those were resolved by partially and then fully splitting off a legal defense fund for the activities that were problematic from a tax perspective. I’m not sure whether that’s an attempt at censorship or the usual tax law arcana. Certainly censorship is fairly weak if one can deflect the attack with that kind of structuring)

        1. I don’t know about tax cases, but there was lots of censorship and attempted censorship in the 1950’s and 1960’s, most of it coming from the right. Indeed, the mysteriously admired Robert Bork was no friend of free expression.

          Maybe Brett has an explanation for the change of heart of some on the right.

          1. There was much much more censorship on the left in the 1950’s and 1960’s You just didn’t see it. You were living in a free country that didn’t have that censorship.

            1. Are you referring to other countries? Sure, there was vast and pervasive censorship in Communist countries, but I thought we were talking about the US here.

          2. Does it hurt being that ignorant bernard?

            Seriously, one look at the Congressional votes for Civil Rights legislation during that time period makes it clear that Progressive Dems continually opposed any Civil Rights especially Free Speech, Right to Peaceably Assemble, Right to Keep & Bear Arms, etc.

            1. I’m not that ignorant bernard. You’re thinking of someone else.

              I have no idea what your second paragraph is about, moron.

      2. I am glad you were there to testify, don’t get me wrong. However, once you have to make a constitutional argument based on Supreme Court decisions, you’re already at the redoubt and it is usually only a matter of time until they take the walls. It further presupposes the listener cares about the legitimacy of what the courts say, as if they were the final arbiter, which they are not (in that they often change their decisions based on the cultural milieu).

        1. IANAL but the Supreme Court cases merely illustrate the examples of applying the First Amendment, do they not?

          1. It wasn’t until like 1925, some centuries after 1791, that the Supreme Court even used the First Amendment to protect a person’s free speech.

            I mean Prof V is a law professor, so his natural inclination is that SCOTUS decisions should be the metric by which we measure these things. In reality, SCOTUS decisions, like the judges that make them, cannot transcend the culture that they derive from, and the decisions are not a lodestar, but a sliding scale.

        2. Exactly. Which is why I don’t defend the 2nd Amendment on the basis of Heller, because it only takes a few misplaced heart attacks and another angry academic or wise Latina appointee to reverse Heller.

      3. ” ‘Free speech for me but not for thee’ is a normal human reaction, in America as well as elsewhere.”

        Is that how some people attempt to justify the difference in treatment between shareholders and union members with respect to being excused from funding an entity’s expressive activities?

        1. “…difference in treatment between shareholders and union members…”

          Arthur’s right! Shareholders don’t have to pay dues. Why should union members?

        2. Is a shareholder ever required to buy those shares?

          1. That’s a stupid argument that has beed refuted maybe a billion times.

            Corporations generally resist disclosing their political contributions, so shareholders may not even be aware of them.

            Many, probably most, shareholders don’t even know what companies they have shares in, since they hold them indirectly through mutual funds, pension plans, and so. The shares held change daily.

            Selling shares will often impose a tax burden. Why should a shareholder have to face that because management wants to suck up to some politician?

            Selling shares may mean giving up an otherwise profitable investment. I see no reason I should have to do that to prevent management from giving my money to a politician I oppose.

            There would be absolutely no loss of freedom in preventing publicly held corporations from making political contributions. Shareholders would remain free to contribute as they like.

            1. “That’s a stupid argument that has beed refuted maybe a billion times.”

              Then you probably should have posted something refuting it instead of a bunch of things emphasizing the differences between shareholders and union members.

          2. No one is ever required to purchase a share of stock. Choose another investment.

            No one is every required to join a union. Choose another job.

            This anti-union approach is just one more element of conservative preference that will be rejected by better Americans in the liberal-libertarian mainstream as our culture war progresses against right-wing efforts and wishes.

  5. Prof. Volokh, what was the catalyst for this testimony?

    Is this strictly a tax code/exemption issue or something bigger?

    I could see many of your points being used to help keep Facebook, Google, etc. free from govt oversight.

    1. The catalyst seems to be the fact that the House Ways and Means Oversight subcommittee decided to hold a hearing on “how the tax code subsidizes hate”. The opening remarks from Rep. John Lewis, the chair of the committee, are available at https://waysandmeans.house.gov/media-center/press-releases/lewis-opening-statement-oversight-subcommittee-hearing-how-tax-code .

      1. Civil rights icon against civil rights.

        1. It’s ok. The power of democracy can safely wield the powers of tyrants, like censorship, because the leader will only use it when the populace is whipped into a frenzy and convinced by the leader to use it.

          Wait, what?

      2. Wow. Those opening remarks are outright frightening. I’m surprised that there’s not more coverage of this. One can hope that this is just campaign posturing, but I’m pretty sure Lewis is serious about it.

        1. Thanks for the link, and above comments. It seems this is just a threshold exploration, without any legislation yet being introduced – and hopefully some that will not see the light of day.
          Yeah, pretty frightening. While Rep Lewis’ opening statement is available at the Web site, I note that, though referenced at its conclusion, the subcommittee didn’t see fit to provide Rep Kelly’s statement there. More censorship?

    2. Google and Facebook represent monopolies or monopolistic-type organizations. Which is a major part of the problem, especially when monopolies suppress the speech of others.

      1. “Facebook . . . monopolies or monopolistic-type organizations.”

        That sounds like something a cranky old person would say . . . and perhaps even believe.

  6. I agree with Professor Volokh as well. For a well argued conservative counterargument, one I do not endorse but do share with my students, see Hadley Arkes, Conservatives and Freedom of Speech, 18 Claremont Review 1 (2018), https://www.claremont.org/crb/article/conservatives-and-freedom-of-speech/

  7. Excellent job, Eugene. Here is my one objection to your remarks. You seem to have, however slightly or indirectly, endorsed the validity of the notion of sanctioning persons based on their harboring a “subconscious bias.” I view that concept as anathema. To me, it’s a dangerous means of assigning guilt without having to prove guilt. Perhaps you could elaborate upon your use of that term?
    .

    1. SKofNJ: I think I used it to describe the danger of leaving it to the IRS to apply vague standards, such as whether a group engages in “intellectual exposition” consisting of “a rational development of a point of view,” rather than merely “expres[ing] … emotions.” Even if these rules are facially viewpoint-neutral, and thus constitutional (as the D.C. Circuit held, rightly or wrongly), it’s very tempting for IRS officials — like any other people — to read such vague standards one way for groups they agree with and one way for groups they disagree with. And that’s true even if they aren’t consciously thinking, “let’s use this to block ‘hate groups'”; it’s human nature to let ideological biases subconsciously affect one’s interpretation of such vague standards (as the Court has recognized in some of its vagueness cases).

  8. ” Of course, many Americans are understandably upset that their tax money flows—whether through tax exemptions or through university student group funding policies or subsidies for mailing newspapers or books—to views that they believe (perhaps quite correctly) to be evil. Many religious people are understandably upset when they have to subsidize blasphemy. Many pro-life advocates are understandably upset when they have to subsidize pro-choice groups, and vice versa.”

    Minor quibble. Merely being untaxed is not the same thing as getting fat checks from the government. Lump them all into “subsidies” if you want, but there’s a big difference.

    Planned Parenthood kills 350,000 babies a year. They are tax exempt, sure . . . . but nobody cares one bit about that, in comparison to the outrageous fact that PP receives over $530 million in taxpayer funds per year. That is truly your money going to something, not just the government failing to take money from something. And this is while Planned Parenthood’s pitiful fig leaf of all non-abortion services keeps dwindling, while their true operation, an abortion mill, goes up and up.

    There’s also a big difference between targeted tax breaks that benefit specific persons or types of business activities, on the one hand, and entire categories of activity being simply untaxed. The former is much more fairly characterized as a subsidy.

    1. “Planned Parenthood kills 350,000 babies a year. ”

      If you have information about a single baby being murdered, the sole responsible course for a decent adult would be to notify a relevant law enforcement agency.

      If you have no such information, the sole decent course for even an ostensible adult would be to stop spouting superstitious nonsense while competent adults are attempting to engage in reasoned debate about public affairs.

      (Although it is important to note that backward, uneducated, and bigoted Americans have expressive rights, too.)

      1. Arthur, millions of Moms refer to their living, unborn, human offspring as “babies.” Probably over 90% of them do this. Therefore, the definition of the word “babies” includes that usage and includes unborn humans. Even Google’s dictionary, Oxford, defines a fetus as “an unborn offspring of a mammal, in particular an unborn human baby more than eight weeks after conception.”

        So – Take your stale, uneducated, bigoted, backward ignorance elsewhere.

        1. By the standards implied by The Rev, the Nazis didn’t violate any civil rights when they exterminated Jews, since the Neurenberg Laws of 1935 stripped Jews of their civil rights. Purely legal, then, under prevailing legal practice. Of course if you take into account morality as opposed to legal ethics, then things look a little different: actually “Crimes Against Humanity” different.

          But then, the Nazis claimed the moral high ground here also: they were simply trying to protect the purity of German Blood.

          1. Authoritarian, misogynistic, vanquished right-wingers are among my favorite faux libertarians.

            Looking at you, members of Libertarians For Statist Womb Management. And members of Libertarians For Big-Government Micromanagement Of Ladyparts Clinics.

            That so many right-wingers prance about in silly, unconvincing libertarian drag is a testament to the victory of our liberal-libertarian mainstream in the culture war.

      2. It is also a biolgical fact that those are human babies being killed.

        Amazing the extent to which progressives deny science and reality.

    2. There’s no good way to differentiate tax exemptions from stuff that merely isn’t taxed. Any time the government can tax something, but doesn’t, the choice not to tax can be considered a “subsidy”. For example, tax deductions for executive pay are capped at $1 million, effectively creating an additional tax on executives. But performance-based pay is exempt from the cap. So people get to claim that taxpayers are subsidizing CEO pay, simply because performance-based compensation is treated like any other expense.

      1. The government could tax my income at 100%, but they don’t. How nice of them to subsidize me! Thanks be to the gracious and merciful government for all that we have. The Government giveth and the Government taketh away.

        People can make these claims and think this way but I’m going to disagree. You’re right that there’s no clear difference between simply “not taxed” and “exempt.” What I was getting at is more about the relative tax burden, in either case, on similar activities or persons. There’s a difference between (a) keeping entire areas of activity tax free, e.g. religious, educational, and charitable activities, and (b) providing tax incentives to Tesla or Google so that they will build something in your state, or keeping the carried interest loophole to benefit hedge funds, or other forms incentivizing or catering to specific for-profit activities or firms that aren’t equally applied to other for-profit activity. If any of this is going to be characterized as a subsidy, it’s a lot more defensible to characterize the latter as a subsidy than the former.

        1. When the government taxes two people at different rates, it’s an effective subsidy. “A subsidy by any other name would smell as stink” so to speak.

    3. PP is a tax exempt organization under section 501(c)(3) of the IRC.

      However it is not a Non-profit organization in the true sense of the word. PP is definitely in business to make a profit. Abortion services is the Organization’s primary profit center.

      If PP mission was actually about “womens health services” they would have little or no issue with spinning the abortion services out of the organization instead of raising holy h3ll about any cuts to their funding.

  9. It appears Prof. Volokh’s loquaciousness and insight are still available for public display when the topic does not involve criticism of Pres. Trump.

  10. I can’t point out any errors in your testimony, other than the undeniable fact that government suppression, by any means necessary, of ideas I abhor should pass any level of constitutional scrutiny, while promotion of ideas I like should have all the resources of government behind their promotion and mandatory adoption.

    And I’m sure my well reasoned position will of course command a majority in both the Ways and Means committee and the House as a whole. God help us.

  11. …. it would exacerbate the risk that government officials will succumb to the normal human impulse to apply the rules selectively to their political enemies.

    Risk ?

    This is not a bug, it’s a feature. Indeed it’s THE feature.

  12. Likewise, if the government enforces bans on fraudulent fundraising by 501(c)(3) educational groups, it must do that for all kinds of groups, regardless of viewpoint.

    I could use a little education on that one. I am having trouble understanding what content has to do with fraudulent fundraising. Left as it is, it looks like a preemptive attempt to armor-plate the favorite conduit for secret political fund raising against legislative challenge. Maybe it’s that mostly right wingers are using it these days, so if Congress moves to stanch the fraud, that becomes content-related? I know I’m in over my head, so would welcome help from anyone who can explain.

    1. I don’t claim to be a credentialled educator on this one. But it looks to me as if EV is arguing that if the law says – neutrally – that 501(c)(3) groups are not allowed to raise funds using fraudulent claims that a contribution will protect you from the effects of earthquakes, then, if there are 496 such 501(c)(3) groups, so claiming :

      (a) 297 of which subsidise schools to teach the evils of abortion, and
      (b) 199 of which subsidise schools to teach the evils of fossil fuels

      and enforcement action, for the fraudulent earthquake protection promise, is taken only against the 199 in category (b), while the 297 in category (a) are left unmolested, then there is an “as applied” challenge to the enforcement action , since it appears to be enforced only, or at least primarily, against those 501(c)(3) groups who want to spread the word about the evils of fossil fuels, based on the content of their message.

  13. “The law may treat groups differently based on their actions, but not based on the views they express.”

    This would seem to be frame that one would want to use if they are attempting to restrict tax benefits to certain groups. If the Court says that distinctions cannot be made on viewpoint, then the argument simply needs to be that it is action, or conduct, that is being targeted, not viewpoint. The pickle arises when “views” becomes “expression” and when expression is intertwined with “action.” What then differentiates action from expression? If the balance weighs in favor of expression then more and more actions will be protected. But this has the potential of creating a slippery slope where the people become limited in their ability to legislate against actions. If all actions are merely the manifestations of expression, then limits to expression are required to limit actions. Who ultimately should be empowered with making these difficult distinctions?

    “Groups may be denied tax exemptions for deliberately engaging in speech that falls within one of the few narrow exceptions to the First Amendment.”

    “But giving the government the power to discriminate against some such viewpoints necessarily means the government will also have the power to discriminate against others. Would we feel comfortable giving this power to the Trump Administration? If we would, would we feel comfortable giving it to a possible Sanders Administration?

    This type of claim comes off as odd given that the courts are government. The judicial branch does not exist outside of government and the process of nomination and confirmation means judges will differ depending partisan politics. So, if the Court has recognized exceptions to speech then the government does in fact have the power to discriminate against some viewpoints, which means it can also discriminate against other viewpoints. Would we feel comfortable giving the power to make this distinction to a judiciary of Trump appointees? If we would, would we feel comfortable giving the same power to a judiciary of Sanders appointees?

  14. That testimony could have been more persuasive if offered by someone who did not engage in viewpoint-based, transparently partisan censorship.

    Why are conservative academics impervious to self-awareness?

    1. Do you have your own blog? Then shut yer trap, puppy dog, about censorship on the VC.

      1. Censors are entitled to censor in some cases. They are not entitled to conceal the censorship, however, nor to claim to be supporters of the right to expression. They are poor candidates to criticize other censors.

        (Censoring terms such as “sl*ck-j*w” and “c*p succ*r” is paltry censorship, more backwardness, prudishness, and partisan tribalism than anything else.)

    2. I don’t know the prof, but he’s not part of the govt and can (perhaps in consultation with Reason) decide who gets to post what on his blog, and here and previous platforms he’s had a fairly liberal policy, even though he blocked one of your socks.

      Think of an old-timey newspaper deciding which letters-to-the-editor to print. You are probably old enough to get the reference, though “thou shouldst not have grown old, before thou hadst grown wise.”

      1. “I don’t know the prof, but he’s not part of the govt”

        He is a California State employee and as such certainly is part of the government. I’m sure there is a lawyer out there that could use the reasoning of the 2nd Circuit’s decision in Knight First Amendment Institute v. Trump to argue that the First Amendment applies to this blog. Being a proponent of First Amendment protections, I’d assume Volokh would welcome a decision in agreement with the 2nd Circuit.

        1. Wait, you mean there’s someone more obnoxious than the Rev that Professor Volokh has been protecting us from all along? And you want to unleash them upon the world?

        2. Oh, yeah, UCLA. So he is strictly part of the government, being a government employee.

          Now we tackle the various precedents where government employees in the education sector have a right to free speech outside the context of teaching their particular classes. Pickering, etc.

          Is the prof acting as a UCLA representative when he runs part of Reason’s blog – is Reason allowing itself to be used as a cat’s-paw for UCLA?

          To get the best guess on that subject, let’s see if on (say) the issue of the First Amendment, he’s articulating UCLA’s views:

          I’m not so sure:

          https://www.thefire.org/nine-years-later-ucla-complains-again-about-online-critic/

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