U.S. v. Phipps: Fifth Circuit Upholds Conviction for Tax Evasion Advice

In US v. Phipps, 2010 WL 254983, the defendant was convicted of a variety of crimes on account of running an illegal pyramid scheme that included advice to participants on how to avoid paying an income tax.  On appeal, the defendant claimed that the income tax advice he provided was protected under the First Amendment because it did not qualify as "incitement" as that term was define in Brandenburg v. Ohio.  The Fifth Circuit rejected that claim, in an opinion that reads in relevant part: 

Telling his adherents that he did not report his LWD income to the IRS and encouraging them to do the same places 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.

This seems strange to me.  Without having read the cited cases, it's hard to tell why the court thought this particular type of advocacy was likely to promote "imminent" illegal action in the form of failing to declare income on a tax return.