Humbach, Prof. John A.
Wed, 27 Jan 2010 07:30:25 -0800
Well, I think Hess said some "indefinite" future time, which may imply an even greater degree of contingency than "unknown" future time.
But the question I have is what verbal formulations would best capture the relationship between issues like this one and the whole law of criminal solicitation in general, which I presume is not under any particular First Amendment cloud. The New York Penal Law, for example, talks of one who "importunes or otherwise attempts to cause such other person to engage in such conduct." I'm guessing that the whole answer may be what Scalia wrote in United States v. Williams: "Many long established criminal proscriptions--such as laws against conspiracy, incitement, and solicitation--criminalize speech (commercial or not) that is intended to induce or commence illegal activities. See, e.g., ALI, Model Penal Code § 5.02(1) (1985) (solicitation to commit a crime); § 5.03(1)(a) (conspiracy to commit a crime)." Does Brandenburg constitute a qualification of (or, worse, is it superseded by) this principle, reaffirmed in 2008? Ideas? John A. Humbach, Professor of Law Pace University School of Law 78 North Broadway White Plains, New York 10603 Tel. 914-422-4239 -- jhumb...@law.pace.edu personal homepage: humbach.net -----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 25, 2010 5:14 PM To: 'CONLAWPROFS professors' Subject: "Imminence" in Brandenburg Any thoughts on this opinion decided today, U.S. v. Phipps, 2010 WL 254983 (5th Cir.)? In particular, I wonder whether it's consistent with Brandenburg and Hess v. Indiana to hold that this speech incites "imminent lawless conduct" -- isn't it more like the advocacy of illegal conduct at some unknown future time, which doesn't satisfy the "imminence" requirement, according to Hess? (I set aside the question whether the speech could be restricted on other grounds.) Eugene For over twenty years, Phipps has operated self-styled "educational programs dedicated to teaching others how to eliminate their debt and live within their means." Despite notice from the United States Postal Service ("USPS") that both of his prior, similarly structured endeavors were considered illegal pyramid schemes, Phipps created the instant program, Life Without Debt ("LWD"). Members were encouraged to contribute between $2,000 and $100,000; Phipps claimed that a larger contribution would engender larger returns. As with prior schemes, members were required to recruit two new members prior to receiving any payments; they also received educational literature and tapes with anti-income tax messages. Notably, Phipps told participants that the income received through LWD would not need to be reported to the IRS. Phipps himself did not report any of his LWD income to the IRS. During his ten years of operating LWD, Phipps received notices from the states of Georgia, Oklahoma, and Maryland that LWD constituted a pyramid scheme, and he may be subject to civil or criminal enforcement actions as a result. Indeed, six LWD members were arrested in Florida for felony and misdemeanor promotion of and participation in an illegal lottery. Despite these warnings that his activities might be illegal, Phipps continued to recruit new members through mass mailings, teleconference calls, and seminars in major cities. Phipps sent periodic small payments to members to encourage them to remain in the program, recruit new members, or reinvest in larger payment plans. Though Phipps marketed LWD as a compound-leveraging investment program that would generate large sums of money for its investors, less than nine percent of LWD's approximately 31,000 participants made a net profit above their initial investment. Phipps "earned" $4,606,396 from LWD, $1,381,683 of which wa! s "participation income," and $3,224,782 of which he paid to himself under aliases within the scheme. A jury found Phipps guilty of mail and wire fraud and aiding and abetting, corrupt endeavor to obstruct and impede the due administration of the internal revenue laws, and income tax evasion. [FN1] Phipps was sentenced to 210 months imprisonment, to be followed by three years of supervised release. Phipps was also ordered to pay $1,402,446 in restitution. Phipps now appeals the sufficiency of the evidence to support his convictions and whether his sentence was properly calculated.... Phipps alleges that his tax evasion advocacy was protected by the First Amendment. This allegation is without merit. Telling his adherents that he did not report his LWD income to the IRS and encouraging them to do the same place Phipps' speech within the sphere of proscribed speech likely to incite or produce "imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); see also United States v. Kelley, 864 F.2d 569, 577 (7th Cir.1989) (rejecting First Amendment protection of "more than mere advocacy" where defendant told clients to keep tax shelter information secret from the IRS and received commissions from sales); United States v. Buttorff, 572 F.2d 619, 624 (8th Cir.1978) (rejecting First Amendment protection of activity that went "beyond mere advocacy of tax reform" in explaining to others how to avoid income tax liability). Phipps has not shown that his behavior advising and advocating tax evasion to LWD participants should be entitled to First Amendment ! protection.... _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.