Tag Archives: First Amendment

When the LDS Church shows up for a press conference, does it jeopardize tax exempt status?

I’m expecting an Utah paper editorial separation of church and state any day now. I’d bet dollars for donuts that it’ll be in the Salt Lake Tribune, too. The Deseret News just doesn’t roll that way.

Yesterday, the LDS Church openly supported Governor Herbert’s signing of HB 116 by sending Presiding Bishop H. David Burton to the ceremony. While many detractors will argue that the Church regularly engages in political activity, citing the Proposition 8 battle in California, it is actually quite rare for the LDS Church to openly engage in politics. Typically, the LDS Church prefers to work in the background, if at all, when it feels the need to support or oppose legislation. (I do not believe that the Church has supported, in recent memory or indeed the last century, any candidates for public office).

When it does engage, actively or otherwise, it is usually because the cause aligns with what LDS Church leadership believe is in the interests of the Church membership. In California and Proposition 8, it was defense of the institution of traditional marriage. In Utah and HB116, it was the family.

Proponents of the bill were grateful for the LDS Church’s support. Sen. Stuart Reid, R-Ogden, told the Tribune that

There is no question that the Utah Compact, with the church’s endorsement, made a significant difference to me and others in the Legislature who helped craft immigration legislation. It provided the inspiration for our efforts to negotiate and compromise, enabling us to create principle-based legislation the majority of the Legislature eventually supported.

Paul Mero, Director of the Sutherland Institute, speculated that if Utah had been in legislative session right after the Arizona law passed last year, we would have seen an Arizona style enforcement law passed here.

But this is not about immigration. This is about the LDS Church’s involvement in the issue. Almost immediately after the press conference featuring Bishop Burton, questions began to arise, on Twitter and Facebook: did the LDS Church cross the line? Can it engage without forfeiting its tax exempt status?

It’s an issue that comes up every few years, at least here in Utah. Uniquely in this country, Utah is dominated by members of the LDS faith. No other state is so religiously homogeneous and few faiths, with perhaps the exception of Catholicism, place such a value on following the guidance of church leadership. They believe that they are lead by a prophet and apostles that are, like the ancient Christian church, called directly by God and are in communication with Him. With that kind of faith, every action taken by LDS Church officialdom is given that much more credence than might otherwise be granted. As is often said in Sunday School–usually about gospel doctrine, not religions–“when the Prophet speaks, the discussion is over.”

The Salt Lake City LDS Temple in the heart of downtown Salt Lake, with the state capitol up the hill behind it.

So what happens when a prophet speaks about politics? Although it was only Bishop Burton at the signing, and not a declaration from the LDS Church’s current prophet and president, Thomas S. Monson, it was a clear signal about where the LDS Church stands on immigration, and it will change the political discourse in the state, if it has not already.

Legally, the LDS Church is not permitted to support of a candidates for public office under any circumstances. The LDS Church is a tax exempt organization under Section 501(c)(3) of the tax code. The IRS website states that such organizations cannot participate in support of a candidate for public office without risking tax exempt status.

The law, however,  is more lenient with regards to lobbying, which in this case would be what the LDS Church did for HB116. Again, the IRS website on lobbying for 501(c)(3) organizations:

In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying).  A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status.

At what point does “some lobbying” become “too much lobbying” and risk loss of tax-exempt status? What is a “substantial part” of its activities? The IRS explains that the “substantial part” test looks at

Whether an organization’s attempts to influence legislation, i.e., lobbying, constitute a substantial part of its overall activities is determined on the basis of all the pertinent facts and circumstances in each case. The IRS considers a variety of factors, including the time devoted (by both compensated and volunteer workers) and the expenditures devoted by the organization to the activity, when determining whether the lobbying activity is substantial.

So were the LDS Church’s efforts a “substantial part of its overall activities” or not?

Previous to Bishop Burton’s appearance at the signing, the LDS Church’s support has been minimal. The LDS Church did support the Utah Compact, the guiding principles upon which the bill was written, but actually avoid public appearance or direct support when it was announced. There are allegations that Bill Evans and John Taylor spent a significant amount of time at the Capitol during the last ten days of the session; however, the presence of two lobbyists looking out for the LDS Church’s interest is hardly a substantial part of the LDS Church’s efforts. As Curt Bentley noted on Twitter

With tens of thousands of missionaries world-wide, millions of members, a laity priesthood, farms, dairies, canneries, and charities, the work of two lobbyists is hardly substantial.

So, in the present case, the allegations against the Church retaining its tax exempt status will probably fail. When a church provides guidance to its members, whether lead by a prophet or by a pope, it may indeed present some internal conflict for those who do not agree with it but who ascribe to its faith. However, church’s aren’t founded to make people feel good about themselves–their purpose is to help them become better people. If that means they have to be more compassionate about their fellowmen–including those who were not born here or do not have a legal status here–then churches should, and ought, to do that.

On the other hand, whether the law will survive federal constitutional review is an entirely different question. On that, Democratic state Senator Ross Romero may have the right stance.

State Falling Apart? Repeal the First Amendment!

State Falling Apart? Repeal the First Amendment!

Senate Joint Memorial 8007 [in the Washington state legislature] requests Congress to pass an amendment declaring that corporations are not persons so that their speech can be restricted.The reason, according to the Memorialists, is that corporations cannot vote and therefore should not be protected by the First Amendment. But disenfranchised convicts, resident aliens, and minors cannot vote either. Do the Memorialists believe that, under a correct interpretation of the First Amendment, the government can pass laws making it a crime for an ex-convict to give a speech or write a book? Sorry, Malcolm X, Angela Davis, and William S. Burroughs, you’re all under arrest—again.

I suppose if folks in Utah can call for repeal of the amendments that they don’t like, then the folks on the other end of the spectrum can call for repeal of the amendments they don’t like, too.

Starting with the First Amendment…and then the Third, Fourth, and Fifth Amendments, too, if the line of reasoning followed by the Washington legislature is carried to its logical end.

(h/t Congress Shall Make No Law. Check out the whole post there.)

Amazon wins one for the 1st Amendment

For those out there who trust government too much, I present to you a case of government bureaucracy gone too far, as well as the lawsuit that said “no.”

A few months back, I took note of a case wherein North Carolina was trying to force Amazon to give up records in order to collect sales tax:

North Carolina is demanding that the online retailer provide records on what was purchased by consumers in the state since 2003.  That amounts to over 50 million purchases, no small number. While North Carolina law requires consumers to pay taxes for online purchases  if buying the same item in a store would result in a sales tax, out-of-state retailers–like Amazon–can’t be forced to collect North Carolina’s tax if it has no physical presence in the state. Hence, the demand for all information on purchases since 2003.

The case was in federal court, and yesterday the United States District Court, Western District of Washington at Seattle ruled against North Carolina.

Amazon pursues summary judgment as to its First Amendment claim that the DOR’s request for all information related to Amazon’s sales to North Carolina residents violates the First Amendment. The Court agrees and GRANTS the motion.

The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57–58 (1953) (Douglas, J., concurring).

In other words, the First Amendment protects a buyer’s right to express herself in what they purchase, and that right includes the right to anonymity. Later in the opinion, the justice notes that disclosure of purchasing habits could result in a chilling effect on the willingness of individuals to make purchases online. Ironically, the North Carolina Department of Revenue, the actual party seeking the records, admitted that they “no legitimate need or use for having details as to North Carolina Amazon customers’ literary, music, and film purchases[,]” yet still would not give up the request for that information. Therefore,

With no compelling need for both sets of information, the DOR’s request runs afoul of the First Amendment. It bears noting, too, that the DOR’s requests for information were made solely in the context of calculating Amazon’s potential tax liability. Amazon has provided all of the data necessary to determine its tax liability, except any potential tax exemptions. The DOR has failed to articulate the compelling need to calculate these possible exemptions, particularly where it has admitted that it can and will assess Amazon at the highest rate and it would permit Amazon to “challenge the assessment and … establish that exemptions or lower tax rates applied to some products.” Even assuming there is a compelling need to calculate Amazon’s tax liability inclusive of exemptions, the DOR’s requests are not the least restrictive means to obtain the information. The request is overbroad. The Court GRANTS the motion for summary judgment.

With no real need for the information, why the broad request? Why require information that is clearly personal and expressive and has no bearing on the ability to collect taxes? If there were ever a case that demonstrates the insensitivity of government bureaucrats, this is it. Ironically, it took a large corporation–Amazon–to stand up to them and tell North Carolina “no, we won’t divulge that information.” What if it had been a smaller company, one that could not afford the costs of litigation? Would North Carolina have succeeded? Or have they already before in the past?

Amazon takes on Big Brother and wins one for the First Amendment.

Related articles

SCOTUS upholds strip club “pole tax”

Selling stuff at strip clubs costs 10% more

In 2004, the Utah legislature, being what it is (and what it is, is controlled largely by conservatives, both fiscal and social), passed a 10% tax on everything sold by strip clubs. Burgers, t-shirts, drinks, key chains, bobble heads, etc.  Everything. If you’re a strip club and you sell something, then the Utah legislature gets 10%. Because the tax was levied solely against, as the bill is labeled, Sexually Explicit Business and Escort Services, the tax came to be known as the “pole tax.”

That’s a First Amendment violation, the clubs said.

A group of strip clubs, including Denali and American Bush Inc., challenged the constitutionality of the law, arguing that it violated their First Amendment rights.

Denali features full frontal nudity, while America Bush has plans to introduce nudity into its performances.

When written, the “pole tax” was intended to pay for sex offender treatment, as well as to pay for the Utah Attorney General’s Internet Crimes Against Children Task Force.

The Utah Supreme Court has already upheld the law, and the US Supreme Court‘s refusal to hear the appeal essentially ends the clubs’ legal fight. Back then, Justice Durrant held that:

“In this case, the tax is triggered by nudity, which the (U.S.) Supreme Court has specifically declared ‘is not an inherently expressive condition,'” Durrant wrote in the majority opinion. “We find nothing in the record before us — either (in) the tax’s legislative history or in the text of the tax itself — establishing that the tax was enacted with the predominant purpose of suppressing protected expression.”

In other words, the tax doesn’t suppress protected expression.  It just makes it more expensive to see nudity.

First Amendment protections for nude dancing?

The Supreme Court dismissal aside, does the First Amendment ever cover nudity and sexually explicit businesses?

Ironically, the 10th Circuit Court of Appeals, which includes Utah, had addressed the issue of nude dancing just before the Utah Legislature’s “pole tax,” evaluating whether ordinances passed by the City of South Salt Lake could limit the extent to which exotic dancers could remove their clothes. As Justice Michael McConnell astutely noted, the Supreme Court has not been favorable to nude dancers in recent years.

Despite the theoretical uncertainties, however, the results themselves in these cases [speaking of those the US Supreme Court has ruled on]  have been consistent: the practitioners of nude dancing have lost and the ordinances have been upheld. (Heideman v. South Salt Lake City, 348 F. 3d 1182 – Court of Appeals, 10th Circuit 2003)

US Supreme Court building, front elevation, st...
Image via Wikipedia

(Aside: not having solicited one of these clubs before, I found it amusing that the dispute was over whether or not dancers had to wear “pasties,” which just cover their nipples, and g-strings, which just cover genitals. Really? At the point that all that is covering your skin is less than two postage stamps and a small napkin, aren’t you effectively naked, anyway? But I digress from the First Amendment discussion…)

The cases that McConnell is referring to are Barnes v. Glen Theatre, Inc., and City of Erie v. Pap’s A.M. In those cases, the court noted that, to summarize, nude dancing is expression covered under the First Amendment, “the outer perimeters,” and then “only marginally so.” (City of Erie noted that being in a “state of nudity” is not in itself expressive conduct, and so cannot merit First Amendment protections, but nude dancing is, and so falls under the “outer ambit” of the First Amendment.)

Because it is expressive behavior, then, however “marginally so[,]” the Supreme Court looks at the regulation of nude dancing under a standard that asks whether the regulation is related to suppression of speech, and if not, it receives a relatively low standard of scrutiny, and is more likely to be upheld.  If the regulation does suppress speech, a higher standard is used before the regulation can be upheld.  The Supreme Court is then likely to uphold a governmental regulation that is aimed at conduct, not speech, especially if the conduct has negative secondary effects. In City of Erie, the court notes that the Pennsylvania Supreme Court had upheld such ordinances that were explicitly targeted, in their language to nude dancing

which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects. 553 Pa., at 359, 719 A. 2d, at 279 citing the Erie, Pennsylvania ordinance.

Without dipping too far into the minutia of the Supreme Court’s opinion then, it appears that the court looked at the ordinance, determined that the activity of nude dancing is protected under the First Amendment (if just barely), but that government regulators can limit it when they have a good public policy reason for doing so, as long as that purpose is not the suppression of speech.

Utah’s tax justified?

Back to Utah: the tax on the adult clubs–the “pole tax”–doesn’t even remotely regulate or limit speech of the dancers.  It makes purchasing anything in the club more expensive, but because, ostensibly, the purpose of the tax is to support treatment for sex offender treatment and a persecutor’s task force against internet predators, the Court, like the Utah Supreme Court, didn’t see any problem with it.

So what’s the other side of this? To quote, or summarize, Ronald Reagan, if you want something to stop moving, tax it.  By placing a tax on strip clubs, Utah legislators are are acting to slow, or stop, strip clubs.  Is it appropriate? Should government be in the line of choosing what businesses are moral and which are not? In this case, it’s probably appropriate.  State legislators are selected by their constituents to pass laws that represent them. Public policy is most appropriately determined by the elected legislators, and in this case, legislators acted to protect the interests of the state at large, and yet not infringe on First Amendment rights by prohibiting the dancing.  It’s a balancing act, and whether one agrees with such clubs’ existence in the first place, the process by which this tax came about is hard to find inappropriate.

Tattoos: Free speech on your body

Tokyo Tatoo
Image by megabn via Flickr

While I suppose it would be plausible for other circuits to deal with tattoos as political speech, it’s really no surprise that it was the the U.S. Court of Appeals for the Ninth Circuit, in Anderson v. City of Hermosa Beach, that actually did.  And that found them to be speech.

Some legal context before a piece of the opinion: the First Amendment right to Free Speech is not unlimited.  Government can, in certain situations, regulate speech, and you see those situations referenced in the following section from the opinion, by Judge Bybee:

In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court’s order granting summary judgment in favor of the City and remand with instructions to grant Anderson’s motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.

Jonathon Alder, at the Volokh Conspiracy, included, in his review of the opinion, the concurring opinion of Judge Noonan, who wrote a separate concurring opinion:

I concur in the holding of the court, and I agree with Judge Bybee’s robust defense of the values protected by the First Amendment.

I write to state that tattooing may be purely expressive, not that it always is. Any text may be expressive but is not invariably so. A laundry list is normally not protected by the First Amendment, but William Carlos Williams made a grocery list into a poem. Context is all. A tattoo punitively affixed is unprotected.

Accepting the fact that a tattoo may qualify as protected speech, I note that creation of a tattoo may involve danger to the health of its recipient, so that tattooing requires regulation for health different from regulation, say, of a press. Tattooing as a business may also require regulation to assure that it does not attract minors. Finally, while we are bound to protect the First Amendment value at issue, we are not bound to recognize any special aesthetic, literary, or political value in the tattooist’s toil and trade.

(thx to How Appealing, via The Volokh Conspiracy)