Judge Bans Schiff Book on Income Tax
1st Amendment Thrashed
to Buy the Tax More Time
New York Times: More Deception
Monday, June 16, Federal District Court Judge
Lloyd D. George issued a preliminary injunction
banning the sale and distribution of Irwin
Schiff's book about the income tax titled, "The
Federal Mafia: How The Government Illegally
Imposes And Unlawfully Collects Income Taxes And
How Americans Can Fight Back."
book, which is a personal and legal examination of
the income tax fraud, and includes extensive, and
specific quotations and analyses of US tax law and
Supreme Court rulings on the tax, was banned even
though the Department of Justice (which bears the
burden of proof) presented no evidence and no
witnesses at the April 11th
preliminary injunction hearing. Click
Here to read the first portion of the
censored book (.pdf).
short, Judge George banned Schiff's book as
"false commercial speech" without any
specific analysis or any in-court evidentiary
examination establishing the "falsity"
of Schiff's actual speech and by blithely ignoring
the substantial body of established Supreme Court
constitutional law protecting free expression and
With only an unsubstantiated claim of criminal
speech asserted by a government witness (via a
written declaration), Judge George summarily
dismissed the content of Schiff's book as
"largely autobiographical, containing in
large part Schiff's anti-tax and anti-government
diatribes and theories." Of course, it
appears to be lost on the court that this is the exact
type of speech protected by the First Amendment
and -- even when intertwined with
"commercial" speech -- requires the
highest level of examination and legal
justification to censor.
Allen Lichtenstein, general counsel of the
American Civil Liberties Union in Nevada, said he
looked forward to arguing the case before the
Ninth Circuit Court of Appeals. Schiff said he had
done nothing wrong and would appeal.
"We argued that the book is not commercial
speech, cannot be banned as false commercial
speech and does not meet any other criteria for
censorship," Lichtenstein said.
Tuesday June 17, The New York Times ran an article
authored by David Cay Johnston about the Schiff
injunction. According to Schiff, Johnston
makes two knowingly false statements
distorting the perceived nature of the
proceedings. Schiff has demanded a formal
retraction from the New York Times.
wrote," At the court hearing, Mr. Schiff
fired his lawyer after she said that she could not
argue his tax claims because they lacked
merit." In his demand
letter to the Times, Schiff points
out that the transcript from the hearing makes it
explicitly clear that Schiff's attorney was not
characterizing Schiff's legal assertions as false
or lacking in any way, but instead that she was
effectively prohibited by the court from even
raising the issues in defense of Schiff under fear
and threat of court sanction.
of the Order
reach his contorted legal conclusions and to issue
the preliminary injunction in favor of the IRS,
Judge George ruled, without any evidentiary
examination or cross-examination, to conclude that
Schiff's speech is false.
With this in mind, please note on page 4 of the
Order there are five distinct, separate legal
elements listed for the government to successfully
assert a claim for an injunction related to an
"abusive tax shelter."
In his order however, the judge conveniently
"combines" his analysis of the critical
second and third statutory elements, (i.e.,
relating to making actual "false and
fraudulent statements" and the defendant's
"reason to know" about their falsity)
together within section "B" of the
Order, thereby clouding the court's grossly
inadequate treatment in establishing the truth or
falsity of Schiff's actual speech.
While Section "B" contains much ado
concerning Irwin's past criminal tax convictions,
his failed federal appeals and Schiff's extensive
knowledge and expertise in tax law, precious few
words are wasted establishing the actual falsity
of Schiff's speech,. In fact, most of the
relevant language concerning the court's finding
of falsity merely lists District Court decisions
of other victims of the IRS's nationwide attack on
speech. The Court is in effect stating,
"All these other people had false speech
concerning abusive tax shelters so Schiff's speech
In short, to enable the government's full and
unfettered dismissal of the very significant First
Amendment issues raised subsequently by the ACLU,
Judge George quickly reaches the judicial
conclusion of the "falsity" of Schiff's
speech (relative to abusive tax shelters) by
grossly mischaracterizing Schiff's legal
assertions within the context of several
Supreme Court cases cited that are only
tangentially related to the core legal issues
raised in Schiff's actual speech.
Example: The Court cites the 1916 Brushaber case
which addressed the "right of Congress to
impose income tax" [sic]. In
fact, Brushaber was acting as a withholding
agent for a foreign corporate entity operating
inside the US and was in fact, under US law,
liable in that capacity. This
issue is not the issue raised by Schiff in the Federal
According to Schiff's Federal Mafia
material - if Brushaber was a natural
citizen of living and working in the 50 states, his
personal wages would in fact be non-taxable
because they don't meet the constitutional
definition of "income" as defined by the
Supreme Court (i.e., a corporate profit or
gain). It is Supreme Court decisions such as
these cited in Schiff's Mafia (and
therefore, his alleged tax "scheme")
that the Court has blindly ignored in its
The bottom line: Nowhere is there a
direct rebuttal or examination of the specific
legal assertions advanced by Schiff in either his
speech or his book. Every subsequent aspect
contained in the Court's injunction is
rationalized, and squarely erected, upon this
defective judicial premise.
In reality, Schiff's "abusive tax scam"
is merely a detailed discussion and analysis of US
tax laws and US Supreme Court decisions, coupled
with detailed instructions on how average
Americans can implement the logical conclusions
and reasonable inferences of those legal facts to
protect their property and their rights.
The IRS, DOJ and now the US District Court, have
failed to provide ANY specific, substantive
rebuttal to ANY of the the specific elements of
Schiff's speech - even though these elements
contain the nexus of the falsity or truth of
his speech, and thereby are at the heart of
determining the legality or criminality of the
alleged "abusive tax scheme". To
fail to directly address the content and alleged
falsity of the speech is a clear violation of due
Armed with this defective and patently
self-serving judicial conclusion, the Court then
begins to rebut the 1st Amendment free
speech issues raised in the ACLU's amicus briefs.
The 1st Amendment discussion begins on
page 13 of the order)
Judge George summarily concludes not only that The
Federal Mafia is non-protected
"false" commercial speech because the
book is sold for money and it contains false
information that might be of "selfish"
economic benefit to the audience (or Schiff) --
but that it should be banned because it advertises
other Schiff products that naturally lead to the
same alleged tax "scam." I.e., as false
commercial advertising, the book should be banned.
judge, citing the 9th Circuit Estate
Preservation case, makes the implicit point
that Schiff, outside this injunction, is free to
continue to give tax planning advice as long as it
is "legitimate" as (quote) "every
honest and qualified tax consultant knows."
George, having concluded that the book constitutes
"core commercial speech," (i.e.
"advertising, plain and simple")
dismisses the tightly interwoven political content
and far reaching political implications of
Schiff's work and instead focuses on establishing
that Schiff's book is simply a contrived
"soup" of false advertising and an
embedded "abusive tax scheme," which, of
course, enjoy no protection.
of Imminent Lawless Acts
the beginning of the section dealing with the
"Incitement of Imminent Lawless Acts"
(page 26) Judge George cites the Brandenburg v.
Ohio Supreme Court case where the court upheld
that even speech advocating the violation of law
was protected, as long as the speech did not
"incite imminent unlawful acts".
Brandenburg case is the modern day constitutional
litmus test for the legal banning of speech.
Below is the definition of the word
it is the strongest -- it denotes that something
is ready to fall or happen on the instant; as,
in imminent danger of one's life.
Threatening to occur immediately; near at hand;
impending; -- said especially of misfortune or
peril. ``In danger imminent.''
(Source: Webster's Revised Unabridged
Dictionary, © 1996, 1998 MICRA, Inc.)
already sidestepped the issue of whether filing a
"zero return" constitutes an unlawful
act, Judge George haphazardly, and improperly,
dismisses the crucial Brandenburg "test"
as inappropriate in Schiff's case because the
speech in Schiff's book "incorporates the
(tax) scheme" thereby implying that Schiff's
speech is the actual crime and therefore that this
test need not be applied.
entire nature of the Supreme Court's Brandenburg
litmus test revolves around the direct incitement
of "imminent" lawless behavior - i.e.,
in the case of Brandenburg (and its supporting
case citations) imminent VIOLENT behavior.
(Brandenburg was a Klansman engaged in
inflammatory, racist speech. His speech was
upheld as constitutional because he merely advocated
the breaking of the law.)
George takes license in citing several sympathetic
Court decisions, while choosing to ignore the
direct guidance of the Supreme Court regarding
this crucial legal test necessary to ban speech.
short, the Court makes no attempt to establish how
reading a book containing a legal analysis and
instructions on how to file a tax return could
result in anything resembling "imminent"
activity of ANY type - whether lawful or not.
The judge seems content - as the other District
tax case judges seem to be - of tolerating a mere
logical relationship between this
"unlawful" speech and a subsequent
"criminal act." With that linkage
established, the "imminence" element to
banning speech is cleanly dismissed out of hand.
this court's logic, anyone who wrote a
"how-to" book containing any information
that was subsequently used in a crime - no matter
how far removed from the alleged proximate cause
-- and regardless of whether the speech was
false or not - could be held liable for his/her
speech or writings.
the last section of the injunction order, the
judge cements his previous conclusion of the
false, (and thereby criminal), nature of Schiff's
speech by citing a handful of free speech cases
involving bomb makers, illegal drug manufacturers
and "hit-men" that purport to, by
example and association, show how speech that
leads directly to and induces specific criminal
conduct is not protected.
course unlike exploding a bomb or killing another
human being -- which are reasonably understood to
be plainly criminal acts - the filing of a tax
return per instructions and legal advice of a
court-acknowledged tax expert that specifically
and plainly cites decisions of the Supreme Court
and the Internal Revenue Code itself is much
harder to comprehend as an overt criminal act.
legal arguments and carefully selected lower level
court cases cited by Judge George throughout the
Order clearly appear strained in their effort to
support a justifiable ban of Schiff's book and
appear to set the stage for the Ninth Circuit to
deny an appeal from Schiff. The clearly
protected political content of the book is
outright ignored. It is obvious that the
government has found Schiff's speech (and many
other tax "protestors") intolerable simply
because the speech conveys details of the income
tax fraud and that they have provided methods on
how to effectively contravene its effects.
be sure, the banning of speech through restraining
orders and like vehicles are extraordinary
remedies that can be implemented without a
trial by jury, were designed to temporarily
protect rights, property and the public
tranquility at risk until other legal remedies
could be effected. They were never
intended for the purposes of suppressing, or
otherwise circumventing, rightful, lawful public
debates and discussions about the tax laws of this
nation or the abuses of government power.
extraordinary remedy of enjoining speech was never
intended to replace the proper processes of due
process and the enforcement of laws as executed
via indictments, prosecution and the judicial
appeal process. The delegated and strictly limited
legal authority of our government to collect taxes
DOES NOT, and CANNOT, ever trump the sovereign
People's right to free speech.
That the judiciary would openly sanction the use
of these extraordinary legal remedies and
affirmatively deny Schiff his constitutionally
protected right to speech while the government -
for 13 years - has had the ability and resources
to openly pursue Schiff with full, public criminal
charges for his allegedly unlawful acts - AND HAS
NOT -- should not be tolerated. That
our media would ignore -- and even unquestioningly
facilitate -- this carnage on our Constitution is
the pivotal case New York Times Co. v. Sullivan
(1964), Justice Brandeis, is cited from his
concurring opinion in Whitney v. California,
274 U.S. 357, 375-376 restating the rationale
behind free speech:
who won our independence believed . . . that
public discussion is a political duty, and that
this should be a fundamental principle of the
American government. They recognized the risks to
which all human institutions are subject. But they
knew that order cannot be secured merely through
fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and
imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable
government; that the path of safety lies in the
opportunity to discuss freely supposed grievances
and proposed remedies, and that the fitting remedy
for evil counsels is good ones. Believing in the
power of reason as applied through public
discussion, they eschewed silence coerced by
law--the argument of force in its
worst form. Recognizing the occasional
tyrannies of governing majorities, they amended
the Constitution so that free speech and assembly
should be guaranteed." [emphasis added]
Will the People silently endure these abuses?
We shall see.
liberties of a people never were, nor ever will
be, secure, when the transactions of their rulers
may be concealed from them. --Patrick Henry
are not afraid to entrust the American people with
unpleasant facts, foreign ideas, alien
philosophies, and competitive values. For a nation
that is afraid to let its people judge the truth
and falsehood in an open market is a nation that
is afraid of its people. --John F. Kennedy
to download the Court's Preliminary
Injunction Order against Schiff
file is a large 3.5 MB in Adobe .pdf format --
RIGHT Click to download)
Here to read the first portion of the
censored book (.pdf).
listen to Schiff's 4/11 preliminary injunction
hearing (audio, 2.5 hours long) and to see other
video of Schiff on national television news, etc.
Schiff's website: http://www.paynoincometax.com/
to Read Schiff's Demand for Retraction from the NY
to Read the June 17 New York Times article
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