explaining that for statutory injunctions, “the moving party need only show that there is a reasonable likelihood of future violations in order to obtain relief’Xquoting S.E.C. v. Holschuh, 694 F.2d 130, 144 (7th Cir.1982)(emphasis added)
How later courts described this case
- explaining that for statutory injunctions, “the moving party need only show that there is a reasonable likelihood of future violations in order to obtain relief’Xquoting S.E.C. v. Holschuh, 694 F.2d 130, 144 (7th Cir.1982)(emphasis added)
- reviewing issuance of injunction under 26 U.S.C. § 7408 and noting that “[i]n an action for a statutory injunction, once a violation has been demonstrated, the moving party need only show that there is a reasonable likelihood of future violations in order to obtain relief.”
- holding that the First Amendment does not protect speech encouraging listeners to avoid income taxes in a situation where they are likely to do so
- holding that the definition of a tax shelter in I.R.C. § 6700 is “clearly broad enough to include a tax protester group”
Written by the judges who cited it.
The opinion
RIPPLE, Circuit Judge,
concurring in the judgment.
The threat posed to the efficient and fair enforcement of our revenue laws by contemporary tax protester groups is well-established. Indeed, that threat has been explicitly recognized by the Congress and legislation has been enacted to combat that threat. I have no doubt that the Congress has the authority to take such action, even when that action results in a necessary limitation on the free speech rights of certain individuals.
*1154 A
In my view, the district court, in granting the injunction, quite properly relied on both IRC section 7408 and IRC section 7402(a). While I agree with my brothers that section 7408 can be construed to permit injunctive relief against tax protester groups, I do not believe that section 7408, standing alone, provides adequate authority for an injunction as broad as the one issued by the district court in this case. Section 7408 is limited, by its terms, by section 6700. While I have no difficulty joining my brothers in determining that a tax protester organization is a “plan or arrangement” within the meaning of section 6700(a)(l)(A)(iii), I find it difficult to stretch the language of section 6700(a)(2) to cover all of the activity that the government seeks to enjoin here. For instance, I find it difficult to stretch this statutory language to cover such activity as filing frivolous Freedom of Information Act claims in an effort to disrupt government collection of taxes.
B
One other aspect of the district court’s decision requires additional commentary. As the majority opinion points out, the injunction in this case includes within its ambit the value at the very heart of the first amendment — political speech. It also involves the government’s use of its most potent weapon to curtail free expression— prior restraint. In Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 , 96 S.Ct. 2791, 2803 , 49 L.Ed.2d 683 (1976), after reviewing prior restraint analysis in earlier cases, the Supreme Court wrote:
The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.
A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time, (footnote omitted).
The judiciary has very special responsibilities in this area. It is quite easy to sympathize with the position of the Internal Revenue Service in a case such as this one. Enforcement of the revenue laws is a very important undertaking. Those who undertake this responsibility demonstrate great dedication and, at times, courage. However, this reality hardly allows us to relax our guardianship of the first amendment. As Justice Brandeis wrote in1 Olmstead. v. United States, 277 U.S. 438, 479 , 48 S.Ct. 564, 572 , 72 L.Ed. 944 (1938) (dissenting opinion):
Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding, (footnote omitted).
The fulfillment of this responsibility requires that the trial judge examine critically evidentiary submissions — especially when those submissions relate to the degree of disruption that the speech in question has allegedly caused. Conclusory statements by government witnesses must be supported by hard facts. I believe that the experienced district judge was sufficiently cognizant of this obligation to warrant affirmance of the judgment. Yet, I do find disturbing the district court’s partial reliance on statements of opinion and conclusions of the government witnesses. It is for the court, not the witnesses, to determine whether the defendant’s speech caused disruption to the collection of taxes and, if so, to what degree.
In short, I believe it would be a mistake for the government or for the district courts in this circuit to interpret this case as signaling any diminution in our scrutiny *1155 of government submissions aimed at curtailing first amendment rights.