Benghazi, IRS, & AP: First Amendment Stories

By: Toddy Littman

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Let us return to January 21st in 2010, the day the U.S. Supreme Court opinion in the Citizens United v. FEC (Federal Elections Commission) ruling was published. I will set forth, in pertinent part, portions of this U.S. Supreme Court decision that appear particularly relevant to the ongoing IRS scandal:

“[Quick facts of the case.] In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating Section 441b [ of the Bipartisan Campaign Reform Act of 2002], it sought declaratory and injunctive relief, arguing that (1) Section 441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer, disclosure, and reporting requirements, BCRA Sections 2201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Elections Commission (FEC) summary judgment.

“[The Decision]Held:

“1. Because the question whether Section 441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech this Court must consider the continuing effect of speech suppression ….

“(a) [Referenced but not included for brevity as this point was found unsustainable by the Supreme Court and leading to “(b)” directly below.]

“(b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose. Citizens United did not waive this challenge to Austin [another case, citation omitted for brevity] when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and Section 441b’s facial validity here because the District Court “passed upon” the issue [case citation omitted], (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider Section 441b’s facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by Section 441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government’s litigating position; (2) substantial time would be required to clarify Section 441b’s application on the points raised by the Government’s position in order to avoid any chilling effect cause by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy cost of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated”http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

I cite these portions of the Citizens United case to show why President Obama said the following on January 27th, 2010 in his State of the Union Address (where Justice Samuel Alito in the audience mouths “not true” during the “Applause”):

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

These lines of the Citizens United decision connect the Benghazi, IRS and AP stories each as scandals:

“…given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy cost of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated”

— Benghazi: a Coptic Christian, who violated his probation but was ignored for such violation, rightly or wrongly by the court (though the idea someone could sign away their Freedom of Expression seems unlikely to apply to an unalienable Right), is still in jail. However, after being blamed by the Obama Administration as creating or initiating the cause of death of Ambassador Chris Stevens, Tyrone Woods, Sean Smith, & Glen Doherty, this man was taken in by the highest optics possible, https://www.youtube.com/watch?v=rXqWPAlT7qg; that link demonstrating how the AP tale is a repetition of the White House’ Benghazi story, how it was taken up internationally as true, and worldwide media regurgitating the responsibility for the protests on September 11, 2012 being the youtube trailer for the unfinished video made by Nakoula Basseley Nakoula, an exercise of Free Speech being chilled by a government sponsored lie originated during a political campaign. Consider, regarding Nakoula Basseley, “ the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy cost of defending against FEC enforcement…” which is what has happened to him now that the power and personnel of the U.S. Government was put in motion to bring to light his violation of probation; apparently establishing the idea that one must “ask a governmental agency for prior permission to speak” or be subjected to this type of heavy-handed National Government interference in our lives and the local criminal justice system as well.

— AP: Where 2 months of phone records are taken up from reporters without any explanation but “national security interest,” later explained as a “balance,” to controlling leaks of national security secrets. Yet everyone acknowledges this is unprecedented, while Attorney General Holder who knows nothing of the case or paperwork as he recused himself, tells us he is sure it was all done to the exact requirements and specifications of the Department of Justice that he heads.

— And then we have the IRS, who somehow, according to the Inspector General’s Report, “…. used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions instead of indications of potential political campaign intervention… Although the processing of some applications with potential significant political campaign intervention was started soon after receipt, no work was completed on the majority of these applications for 13 months. This was due to delays in receiving assistance from the Exempt Organizations function Headquarters office. For the 296 total political campaign intervention applications TIGTA [Treasury Inspector General for Tax Administration] reviewed as of December 17th, 2012, 108 had been approved, 28 were withdrawn by the applicant, none had been denied, and 160 were open from 206 to 1,138 calendar days (some for more than 3 years and crossing two election cycles)

“More than 20 months after the initial case was identified, processing the case began in earnest. Many organizations received requests for additional information from the IRS that included unnecessary, burdensome questions (e.g. lists of past and future donors). The IRS later informed some organizations that they did not need to provide previously requested information….” — http://www.treasury.gov/tigta/auditreports/2013reports/201310053fr.pdf

Unable to seek out donors and complete their political organization on time, the speech of these Tea Party organizations (and others though I merely used the highlights for brevity) was, as the U.S. Supreme Court puts it, “chilled.”

Conclusions

Understand that this IRS Inspector General report, showing that applicants were waiting more than 3 years for their 501 (c) (4) exemption to be granted, coincidentally shows this IRS targeting practice started about the time Citizens United had finished their last argument (September 9, 2009) and the U.S. Supreme Court had determined but not published their ruling.

Thus, I submit to any and all who read this, that there appears to have been a leak of the final U.S. Supreme Court ruling in Citizens United v. FEC, months before the opinion was published. Otherwise, President Obama’s grandstanding criticism of the U.S. Supreme Court, if he wasn’t apprised of the decision by a leak, set the tone of the IRS, from the Commissioner on down, as to devising a means to offset what the President saw as the negative outcome of the Citizens United decision. President Obama reminds us regularly that he is the President, the leader of the executive branch, and for whom the Commissioner of Internal Revenue and all those under him work. Therefore the entire blame and requirement of accountability rests with President Obama, whether he knew about the IRS targeting of Tea Party and Conservative groups or not doesn’t matter.

Make emphatic note that in each of the above scandals this is about the power of government in affecting speech, seeking to be the arbiters of rightful and wrongful use of our Freedom of Expression whether we want them to or not.

No matter who is targeted, be it Tea Party Conservatives, the Press being probed for leaking national security secrets, or a voter and taxpayer, who affords the authority and cost of Ambassador Chris Stevens to represent the interests of the United States abroad and yet is denied knowing the reason for his and 3 other American’s deaths and is instead being told an untrue story about a video, we must, in all sobriety, recognize these scandals appear to demonstrate that our government has made an actual effort to perpetuate and subject us to, as the Supreme Court put it, “the type of government practices that the First Amendment was drawn to prohibit.

I thank you for reading and hope you send this to every Congressman and Senator you can, for an assault on the First Amendment of this magnitude is a coup against We the People and the self-government by representation that is informed by our Freedom of Speech and Freedom of Expression. For this American, there is no “balance” or “balanced approach” to limit my exercise of my unalienable Rights from God.

Toddy Littman


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Comments

  1. ThisObamaNation says:
  2. Laura Ingraham Freedom 95.9 Friday radio show Conservative is the way to shrink Big Government.

  3. FOX and CBS reporters already been monitor wonder where else DHS, CIA, FBI and other alphabet spy organization been monitoring again.

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