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U S v Raymond and the shill Kilpatrick

Robert R. Raymond wrote:

Hi everyone, as some of you know our case ( U.S.A vs Robert Raymond "et  al") is up at the U.S Supreme Court waiting to be granted cert. James Kilpatrick, a nationally known columnist, has taken an interest in our case. Mr Kilpatrick is syndicated in 180 news papers around the country. His column is included below. Our reply follows. Please pass this on to anyone who might be interested,

Bob Raymond

Originally Published on May-09-2001

WHEN ADVOCACY BECOMES INCITEMENT
by James Kilpatrick

Robert Bernhoft and Robert Raymond are "intelligent men." The 7th U.S. Circuit Court so certified them last September. Why, then, did they disseminate "false or misleading speech intended to incite imminent unlawful activity"?

Good question. The answer is that the two gentlemen believe passionately that the federal income tax, despite the terms of the 16th Amendment, violates other provisions of the Constitution. In 1995 they created and sold a three-volume program for avoiding the tax, and now they're in the U.S. Supreme Court defending their First Amendment right to proclaim their views.

The high court is not likely to grant their petition for review, but the case invites a fresh look at old doctrines of prior restraint. This is the story.

Raymond and Bernhoft are active members of the U.S. Taxpayers Party.

Bernhoft is a lawyer with a general practice in Milwaukee. Raymond is a roofing contractor with an avid interest in politics. He ran almost invisibly for the Senate against Russell Feingold in 1998 and again against Herb Kohl in 2000. The two nonconformists struck up a political friendship that led them to launch a brief-lived business known as Morningstar Consultants.

They promoted a program they called the "De-Taxing of America." Under the heading of "Just Say No," the consultants advertised (1) that federal income and Social Security taxes are voluntary, (2) that the federal government has no authority to compel anyone to file a tax return, and (3) that by following the program's directions their customers would no longer be required to pay federal taxes.

Morningstar earned $34,578 by selling the program to 55 suckers in several different states. At least 12 of their customers followed the promoters' cockamamie advice. They asked their employers to stop withholding federal tax payments. Twenty gullible innocents relied upon Morningstar and filed false or fraudulent income tax returns. The IRS says this cost the government nearly $700,000 in actual revenues, plus the expense of 791 man-hours responding to relevant claims.

In March 1997 the government won a permanent injunction in U.S. District Court against Raymond and Bernhoft. The injunction specifically prohibits Raymond and Bernhoft from inciting others (1) to understate their federal tax liabilities, (2) to avoid the filing of federal returns, and (3) to avoid paying taxes by relying upon the "false and frivolous" claims promoted by Morningstar. The defendants are further enjoined from "advertising, marketing or selling" any documents advising taxpayers that wages and salaries are not taxable income.

Last September, speaking through Chief Judge Joel M. Flaum, the 7th Circuit affirmed the lower court. The De-Taxing of America program promoted an "abusive tax shelter" under Section 6700 of the Internal Revenue Code. The promoters' statements amounted to "clearly false representations." The argument that wage earners are not subject to federal taxes is a "tired argument" that is patently frivolous.

"Moreover," said Judge Flaum, "the appellants have expressed no remorse concerning their participation in the unlawful activities at issue. ... They continue to be active members of the U.S. Taxpayers Party and continue to forcefully advocate their beliefs regarding the alleged dubious legality of the federal tax system."

Constitutionally speaking, we are looking here at a very fine line. It is the wobbly line that separates advocacy from incitement. The question arose memorably in the case of Charles Schenck, a Socialist pamphleteer who urged young men in 1917 to resist the draft. A unanimous Supreme Court upheld his conviction. Said Justice Oliver Wendell Holmes, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic." Schenck's pamphlets created a "clear and present danger" of bringing about a substantive evil that Congress had power to prevent.

In 1969 the court laid down a tougher test. Clarence Brandenburg had been convicted under an Ohio law punishing "criminal syndicalism." In the course of a televised Ku Klux Klan rally he had advocated racial strife. A unanimous court reversed. His inflammatory speech had stopped short of advocacy intended to incite imminent lawless action.

The pending 7th Circuit case is a civil, not a criminal, proceeding. The Morningstar promoters have not been charged with any crime, but Bernhoft especially will want to watch his forceful advocacy. On the record he falsely shouted "fire," and some of his customers were caught when they ran for deceptive exits. I am no friend to prior restraint of speech, but I would let this injunction stand.

COPYRIGHT 2001 UNIVERSAL PRESS SYNDICATE

Here is our reply to James Kilpatrick's syndicated column about our case before the U.S Supreme Court.

James J. Kilpatrick
2555 Pennsylvania N.W.,
Apt. 902
Washington D.C. 20037

May 9, 2001

An Open Letter Regarding Your Recent Column on USA v. Raymond and First Amendment Speech

Dear Mr. Kilpatrick:

I am in your debt for mailing your column to me so quickly, but nonetheless feel compelled to respond to several points raised in your column. First, I was quite surprised that you directed ad hominem remarks at the purchasers of the “De-Taxing America Program.” Contrary to your rather uncivil name-calling, none of these principled men and women were “gullible innocents” or “suckers.” Instead, most of the purchasers were members and supporters of the Constitution Party (formerly U.S. Taxpayers Party), and all of them, without exception, were politically sophisticated men and women who knew precisely the risks and possible adverse consequences of taking any affirmative action after reading the controversial information they purchased.

Among the purchasers, in point of fact, were a certified public accountant with a degree from Syracuse University, an emergency room head registered nurse, and an engineer for the Milwaukee Metropolitan Sewerage Department. The collective educational backgrounds, occupations, and predisposition for political activism of these people belie your attempt to cast them as ignorant country bumpkins who fell prey to “cockamamy [sic] advice.” Moreover, all of the purchasers I spoke to after they read your piece were deeply offended at your cavalier and dismissive rhetoric. Simply put, you demeaned them without so much as even a meager attempt at getting to the facts surrounding their “De-Taxing America” purchase. I realize, of course, that you needed to cast these men and women as ignorant rubes in order to realize your goal of engendering negative public opinion toward Mr. Raymond and myself, but perhaps you could have done that without assaulting the truth and disrespectfully attacking these principled men and women.

It also bears noting that Raymond and I never promoted the controversial materials, as such; instead, word of our research spread through certain political circles and interested parties contacted us about purchasing the information. When someone wanted the information but couldn’t afford it, we gave it away for free. On the other hand, interested men and women with resources were more than happy to pay money for the information, because they understood that financial contributions would further their own political goals.

But in spite of the now well-established and undisputed facts of the case, you seem to have not-so-cleverly adopted the Government’s pre-discovery position on the facts ? a position the Government dropped early on because it was thoroughly discredited during discovery. In addition to the purchasers’ biographies and the political context of the purchases, exhaustive discovery in the case revealed that Raymond and I never told anyone not to pay federal taxes or file tax return forms. We merely asserted our belief that most Americans are not required to do those things, sold information regarding the scope and nature of federal income taxation, and provided various letters that purchasers might mail to the Government to clarify their status vis a-vis the internal revenue laws.

Now, the Government tried mightily to acquire testimony that we had, in fact, counseled purchasers not to pay taxes or file tax return forms. To that end, the U.S. Department of Justice deposed 24 information purchasers and asked questions designed to illicit negative testimony about Raymond and myself, such as: (1) Do you feel that Raymond and Bernhoft took advantage of you, misrepresented the “De-Taxing America Program,” or promised that you wouldn’t have to pay federal income taxes if you bought it?; (2) Did Raymond or Bernhoft ever tell you not to pay federal income taxes or file tax return forms?; and (3) Did Raymond and Bernhoft ever “pitch” the “De-Taxing America Program” to you? Without exception, every single deponent answered these questions, or questions similarly phrased, in the negative.

Government lawyers were understandably quite distressed that they couldn’t illicit the testimony they needed to get their injunction on summary judgment. (As a matter of law, the Government needed to establish that Raymond and I made false or misleading statements about the tax benefits of investing in a tax shelter ? false statements that would have deceived and misled a reasonably prudent investor). Of course, there was no tax shelter, abusive or otherwise, none of the purchasers “invested” in anything, and Raymond and I never made any statements whatsoever regarding any alleged tax benefits of purchasing the information. What we had at the trial level, then, was a transparent attempt to ban printed material the Government didn’t like.  Sort of like book burning, don’t you think? But never let it be said that the facts stood in the way of Government overreaching and propaganda: the permanent injunction issued against us in the federal district court and was later approved by the U.S. Court of Appeals for the Seventh Circuit.

Given the fact, however, that even the Government dropped its attempts to label the purchasers as “suckers” and Raymond and I as unscrupulous hustlers years ago, I’m quite surprised that a man of your intellectual stature would lower himself to the level of a mere and tawdry propagandist. Significantly in this regard, you failed to mention that the IRS initiated this entire case by investigating the Constitution Party and various high-visibility party members for having “anti-government, anti-IRS” views. And strikingly, the investigation was conducted by an IRS “secret agent” who went under a registered pseudonym (a fake name), so he could anonymously conduct political surveillance of the Constitution Party and its members. This sort of unlawful Government surveillance and its police state implications would have made Lavrentia Beria, the founder of the former Soviet Union’s infamous KGB, proud. Does it make you proud, Mr. Kilpatrick? Moreover, the IRS tried to bring a criminal indictment against Raymond and myself, but the United States Attorney refused to prosecute over First Amendment concerns. What a sad day for American liberty when a career federal prosecutor has more respect for First Amendment rights than one of our more influential columnists does.

In any event, your ill-advised attempt to revitalize a disproved factual scenario by ad hominem rhetoric, selective fact presentation, and speculative inference certainly takes away the burden to engage in the real substance of the case. Isn’t it odd in America today, the ease with which we marginalize those with whom we disagree? Heaven forbid we would engage their ideas: much easier and less troubling to our false sense of equanimity if we dismissively label them ? put them in the appropriate box, as it were ? so we don’t have to trouble ourselves with these irresponsible people and their disturbing information and ideas. Yet if only more Americans had the courage to stand fast on principle regarding important matters, as the courageous men and women the Government harassed in our case did, we might make a bit of progress on the truly consequential social, political, and economic problems we face. Instead of performing the easy and “rational” economic calculus, deciding against standing on principle in view of potential “costs,” and then hiding behind economic rationality as a perverse proxy for authentic moral analysis ? as so many Americans do today ? they stood their ground and paid the price. But no one can ever say they lacked the courage of their convictions.

I’m particularly disturbed, though, by your gloss on Brandenburg v. Ohio. To suggest, as you do, that Clarence Brandenburg “advocated racial strife,” is the worst sort of journalistic euphemism. Brandenburg was a white supremacist who told several hundred fellow Klansmen to go out and “kill niggers and Jews” ? a far cry from your fairly innocuous “advocating racial strife,” wouldn’t you say? And yet you “would let this injunction [against our political speech] stand,” in spite of your apparent agreement with the Supreme Court’s Brandenburg decision, which unanimously held that Brandenburg’s extreme exhortation to kill minorities and Jews was political speech protected by the First Amendment. Why is that, Mr. Kilpatrick? Perhaps I missed it, but I don’t think you answered that question in your column. Does the First Amendment umbrella you’re proposing fail to shield our speech simply because you believe several dozen ignorant rubes were misled? That would surely narrow First Amendment speech protection. Perhaps your subject column could have been censored prior to publication on that basis ? the “intended to mislead ignorant rubes theory.”

No, you do not offer any First Amendment rule that can be applied in a principled and consistent fashion to modern speech problems. But assuming, arguendo, that your failure to explicitly justify your support for the injunction resulted from sloppy thinking and writing, not out of calculated mendacity, let’s engage in a bit of legal reasoning. After all, your column purports to “invite[] a fresh look at old doctrines of prior restraint.” Taking you at your stated word, you must be of the opinion that Brandenburg’s speech was not intended to incite nor likely to cause imminent lawless action, but that our speech was.

Let’s see, Brandenburg told several hundred fellow Klansmen to go out and “kill niggers and Jews.” Being Klansmen, they were sympathetic to his message and predisposed to act on the violent suggestion, because the Klan’s propensity for violence against minorities and Jews was well-documented. And yet the Court unhesitatingly and unanimously held that Brandenburg’s speech was not intended to incite imminent lawless action, because Brandenburg was merely stating his political beliefs; e.g., that the only way to save the country was to “kill niggers and Jews.” But surely protecting a citizen’s right to criticize his Government and to exchange information toward that purpose with like-minded individuals, as Raymond and I did, holds a higher place in our First Amendment jurisprudence and philosophy than protecting books that teach how to build bombs or torture and kill people, depict some novel form of sexual debauchery, or counsel predisposed neanderthals to “kill niggers and Jews.”

Just to make the Brandenburg comparison fair, though, let’s assume that Raymond and I publicly and incessantly preached that the only way to save the Republic was to stop paying federal income taxes. Wouldn’t that political speech also fall comfortably within the protection of the Brandenburg Court’s First Amendment rule, as Clarence Brandenburg’s speech did ? speech which explicitly advocated raw violence? Absent any coherent legal doctrine that might justify your support for the injunction, your implied rationale seems to be: “I like this injunction because Raymond and Bernhoft hustled the gullible and unsuspecting.” But let’s cut straight to the chase, Mr. Kilpatrick: you really support the injunction because our speech was related to federal income taxation, the last great sacred cow in American law and politics.

And just like a local newspaper reporter reacted after she investigated our case, you cannot bear to face the possibility that we may be correct ? not only about the constitutional problems of the current federal income tax system ? but about how the Internal Revenue Service routinely violates the due process and substantive rights of hardworking Americans every day. Apparently uncomfortable with facing those hard questions, that local reporter expressed concern and interest, just as you did to me, over the First Amendment implications of the injunction. She acted on that concern by discussing the matter with a nationally renowned First Amendment scholar, and afterward told me this eminent scholar advised her ? off the record, of course ? that unquestionably the injunction violated the First Amendment, but that when the Internal Revenue Service goes after somebody, no matter how egregious the attack or constitutionally problematic, academics and journalists just get out of the way. Imagine that, a nationally renowned scholar refused to go on the record with his First Amendment concerns because he feared the IRS. We live in an interesting world, Mr. Kilpatrick, do we not?

Finally, I’m curious as to why “Bernhoft especially will want to watch his forceful advocacy.” Why should I be more careful than Raymond about my “forceful advocacy?” Why, indeed, Mr. Kilpatrick, because I’m an attorney? Or is there some other distinguishing consideration I’m unaware of, but that you presumably have knowledge of? Please be advised, Mr. Kilpatrick, and whoever gave you the “heads up” on our case: in direct defiance of your gratuitous admonition, I will not back away from forcefully injecting my moral and political beliefs into the public marketplace of ideas. For I believe that the learned professions have a peculiar and important obligation to advocate forcefully for political, legal, and social reform ? particularly in this formerly constitutional and not very much anymore federated republic of ours. Sadly, one of the great problems facing American culture and politics today is the debasement of the learned professions: too many of today’s lawyers are more concerned with staying on the good side of law profession regulators and governmental powers-that-be, than with the public justice and defending the poor, the oppressed, and the unjustly persecuted ? whatever the cost.

Mr. Raymond and I are used to dealing with demagogues and the intellectually disingenuous, Mr. Kilpatrick. But I’ll give you a little heads up that you won’t get from your presumed source at the Solicitor General’s office: the federal income tax as we know it is all but dead. High-level Government officials and lawyers privately acknowledge that there is no law compelling most Americans to pay any federal income tax, and likewise, no law compelling them to file the IRS Form 1040 U.S. Individual Income Tax Return. What they’re doing right now is trying to extricate themselves without suffering too much collateral damage. Because as all thinking citizens know, the federal income tax is feudal, fraudulent, and un-American. The rule of law has been replaced with rule by power and force, and some Americans are simply fed up and just aren’t going to take it anymore.

You’re on the wrong side of this issue, Mr. Kilpatrick, and not just on the First Amendment legal analysis (do I really need to remind a journalist that we tolerate the speech we hate because some day our speech might be hated?) but on the real world practical side, as well. For while law professors, politicians, and certain journalists are out there busily fronting for the Government’s public position, the Government is working just as busily behind the scenes to figure a way out of their difficult dilemma. You’re dangerously behind the curve, Mr. Kilpatrick, and although I’m not by nature a vindictive man, I will take some measure of pleasure from watching careers disintegrate as the unprincipled men and women who’ve shamelessly defended the indefensible are exposed.

You assert that I should be concerned about forceful advocacy? To the contrary, I respectfully suggest that it is you who should be concerned.

Sincerely yours,

Robert G. Bernhoft, J.D.

cc:
Robert R. Raymond
c/o 1456 Lakeshore Road
Grafton, Wisconsin 53024