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THE FIRST AMENDMENT FREAKOUT CLAUSE

November 28, 2007

Do booksellers enjoy a special first amendment exception to tax enforcement? A federal judge in wisconsin apparently thinks so.

The IRS subpeonad Amazon.com for information on sales through the online retail outlet made by a Robert D'Angelo. The judge is unprepared to enforce the subpeona because, well, because they sell books. The judge wants the government to do more to demonstrate that it really needs the information, or the internet might get chilly enough to boil:

Taken a step further, if word were to spread over the Net — and it would — that the FBI and the IRS had demanded and received Amazon’s list of customers and their personal purchases, the chilling effect on expressive e-commerce would frost keyboards across America. Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil.

Chilling effect causes fiery rhetoric, leading to a furious boil. And boils hurt.

Orrin Kerr sums up the ruling: "Subpoena Ruled Unconstitutional Because Some Bloggers Are Really Freaked Out By the Bush Administration."

This contrasts with a decision in September by the Eighth Circuit Court of Appeals where tax[ protest leader Robert Schulz failed to get a subpoena to e-Bay quashed on First Amendment grounds. The Eighth Circuit panel ignored Mr. Schulz's "chilling effect" arguments.

Furthermore, other than alleging that the disclosure of customer information from PayPal to the IRS would chill his customers right to petition the government or inhibit any other First Amendment speech, Schulz fails to provide any evidence of how the disclosure of the customer information will infringe on his First Amendment rights. Indeed, Schulz does not have a First Amendment right to withold money owed to the government and avoid governmental enforcement actions because he objects to government policy.

I'd put my money on the Eighth Circuit's approach winning out in the end.

Tags: Orrin Kerr.Robert Schulz.We the people.

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