Court Battles Over Hate and Anti-Hate Speech by Exempt Organizations

As reported by the New York Times last week, both the Southern Poverty Law Center and the Anti-Defamation League have issued separate reports discussing the rise in hate groups around the country.  The SPLC report is nearly 100 pages, while the ADL report is about half as long.  According to the ADL report, right wing extremists are responsible for 73% of the 427  ideologically motivated killings in the United States during the ten year period from 2009-18; Islamist extremist have been responsible for about 23%, with left wing extremist responsible for about 3%.  No mention about the number of hyper-dangerous Mexican mothers with children in tow.  But I digress.  A substantial number of the domestic extremist groups are tax exempt under IRC 501(c)(3) and the unsatisfying, though not universally held consensus, is that tax exemption cannot be withheld from extremist groups without violating the First Amendment to the United States Constitution.  I have been thinking about that consensus for some time now and hopefully by the end of the summer I can articulate a defensible theory to deny tax exempt status to hate groups.  In the meantime, I want to report on some legal guerrilla warfare going on in the Courts.  Ironically, it involves hate groups -- who insist on the right to tax exemption to support hate speech [and the inevitable consequences, in my view] --  attacking groups like SPLC and ADL for using speech to call out those hate groups.   

Consider, for example, Glen K. Allen v. Heidi Beirich, Mark Potok, and The Southern Poverty Law Center, Inc.  SPLC is a long-time 501(c)(3) civil rights organizations that uses the courts to fight the consequences sometimes shown to be supported or provoked by hate groups.  One of its main tools, of course, is public exposure.  Here is where the plaintiff, Mr. Allen comes in.  According to a Baltimore Newspaper:

The lawyer, Glen K. Allen, has had a long career as a Maryland civil litigator. He has represented various clients ranging from the giant cigarette company Philip Morris, to the Afro-American newspaper. He recently retired from the giant firm DLA Piper and was hired as a contract attorney by the city for its Litigation and Claims Practice Group, the largest division within the Law Department. Allen's financial support of the National Alliance, a neo-Nazi organization, and his work for The American Eagle Party, a fringe political party based in Tennessee, were brought to light yesterday by the non-profit  Southern Poverty Law Center.  "Allen may well be a skillful attorney," the SPLC's expose says. "But at a time when Baltimore and its police department are facing devastating criticism over their policing practices, and a crisis over their treatment of minority residents, the hiring of a known neo-Nazi to litigate for them surely raises questions."

One can only wonder how Mr. Allen survived at DLA Piper for so long.  In any event, the City of Baltimore fired him shortly after SPLC started speaking out about his record.  That led to Mr. Allen filing a federal lawsuit in the District Court for the District of Maryland.  Neither the IRS nor the Treasury Department are named as defendants but here is the interesting part.  The 81 page complaint uses a whole lot of ink to discuss the proper role of a 501(c)(3) in an effort to show that the SPLC is not acting properly and should have its 501(c)(3) status revoked.  The complaint, by the way, is part of a larger "vast right wing conspiracy" in which right wing groups attack the exempt status of groups that monitor and speak out against hate groups and those affiliated with them.  None of the suits name Treasury or the Service.  And you are just gonna have to skim through the entire complaint yourself if you want to see the ad hominem allegations supporting the plaintiff's demand that the federal court revoke tax exempt status even without the Treasury or Service's involvement.  After the fold, though, you can read the count wherein Allen specifically alleges his right as a citizen to demand the revocation of SPLC's 501(c)(3) status (based on things I never thought applicable to the determination of exempt status!).  I suppose anybody can sue ya!

Darryll K. Jones

 

COUNT I
(DECLARATORY JUDGMENT CLAIM AGAINST SPLC)

122. The SPLC’s status as an assumed 501c3 public interest law firm has contributed and continues to contribute greatly to its ability to accomplish its goals of conducting close
surveillance on and destroying Allen and others, in that this 501c3 status facilitates the SPLC’s access to media, imparts to the SPLC the undeserved status of a respectable civil rights organization, enhances donations to its already massive operating funds and net assets, and contributes to a general willingness among the public to ignore or excuse the SPLC’s violations  of the rights of free expression and freedom of association of its victims.

123. Allen has been directly injured by the SPLC’s abuse of its 501c3 status. Among other things, the SPLC’s assumed 501c3 status facilitated its ability to generate massive publicity relating to the SPLC’s August 17, 2016 article and thus to successfully pressure the City of Baltimore to fire Allen. The SPLC’s assumed 501c3 status has also enhanced its ability to reach wide audiences with its false characterization of Allen as “infiltrating” the City of Baltimore Law Department in its 2016 “Hate Map.”

124. Under Internal Revenue Service Code 4.76.9.3 [sic], which defines the Public Interest Criteria a public service law firm must adhere to to receive or maintain 501c3 tax status:

        2. The organization can not attempt to achieve its objectives by illegal activity or through a program of disruption of the judicial system.

        3. The organization can not violate any canons of legal ethics.

125. Allen asserts that the SPLC has contravened and violated the Public Interest Criteria for 501c3 status described in the prior paragraph by, among other violations, those summarized in Paragraph 24 of this Complaint, including: knowingly receiving stolen property, namely the Dilloway Stolen Documents; participating in the theft of the Dilloway Stolen Documents by paying for them or otherwise benefitting Dilloway; multiple instances of mail and wire fraud; menacing with a shotgun; making a false statement on its IRS Form 990; violating attorney client privilege; engaging in conduct prejudicial to the administration of justice; and violating Rules of Professional Conduct 1.2(b), 1.15(b), 4.1(a), 4.2(a), 4.4(a), 4.4(b), 5.3, 6.2, 8.4(b), 8.4(c), and 8.4(d).     

126. The SPLC disputes Allen’s assertions in the prior paragraph. An actual and concrete dispute as to this issue, therefore, exists between the parties.

127. The SPLC’s 501c3 status is also based on the requirement that it has not engaged in partisan political campaigning. As set forth in Paragraphs 25, 117, and 118 of this complaint, Allen asserts that the SPLC has repeatedly and flagrantly contravened and violated this requirement.

128. The SPLC disputes Allen’s assertions in the prior paragraph. An actual and concrete dispute as to this issue, therefore, exists between the parties.

129. The SPLC’s 501c3 status is also based on the requirement that its actions remain within its educational mission. As set forth in Paragraph 94 of this complaint, the concept of “education” and the privilege of tax exemption impose some degree of obligation for fair balance in its articles. See 26 C.F.R. Section 1.501(c)(3) – 1(d)(3)(b) (“An organization may be educational even though it advocates a particular position or viewpoint so long as it presents a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion.”) https://www.law.cornell.edu/cfr/text/26/1.501%28c%29%283%29-1; Rev. Proc. 86-43, 1986-2 C.B. 729 (“The presence of any of the following factors in the presentations made by an organization is indicative that the method used by the organization to advocate its viewpoints or positions is not educational. (1) The presentation of viewpoints or positions unsupported by facts is a significant portion of the organization's communications. (2) The facts that purport to support the viewpoints or positions are distorted. (3) The organization's presentations make substantial use of inflammatory and disparaging terms and express conclusions more on the basis of strong emotional feelings than of objective evaluations.”) https://www.irs.gov/pub/irstege/rp_1986-43.pdf.

130. Allen asserts that the following aspects of the SPLC’s conduct with respect to him and others contravene and violate the SPLC’s required educational mission: its avowed purpose of destroying entities and persons it describes or monitors as so-called hate groups or hateful persons; its practice of ritual defamation; its disregard of even a semblance of balance in its August 17, 2016 article about Allen and in other articles it has published about other entities and persons it describes or monitors as so-called hate groups, hateful persons, or extremists; its tactics of orchestrating violations of the constitutional rights of Allen and other entities and persons it describes or monitors as so-called hate groups or hateful persons; its manifest primary focus on fundraising, which, among aspects, leads it to adopt sensationalist supermarket tabloid style journalism; and its massive surveillance operations, which include a multitude of informants and spies.

131. The SPLC disputes Allen’s assertions in the prior paragraph. An actual and concrete dispute as to this issue, therefore, exists between the parties.

132. A declaratory judgment stating that the SPLC’s improper and illegal actions as set forth above contravene and violate requirements for its 501c3 status will serve the useful
purpose of clarifying the legal relations between the SPLC and Allen. Among other things, the declaratory judgment will restrain the SPLC from continuing to engage in these improper actions, against Allen and others.

WHEREFORE, Allen requests a declaratory judgment against Defendant SPLC, plus costs, reasonable attorney’s fees, and such other and further relief as the Court deems just and appropriate, that the SPLC contravened and violated requirements for 501c3 status by its following actions:

• Receipt of stolen property, namely the Dilloway Stolen Documents, in or about May 2015, in violation of Alabama law and Rules of Professional Conduct 1.15(b), 4.2(a), 4.4(a), 8.4(b), and 8.4(c)

• Payment of money or other consideration to Randolph Dilloway for the Dilloway Stolen Documents in or about May 2015, in violation of Alabama law and Rules
of Professional Conduct 1.15(b), 4.2(a), 4.4(a), 8.4(b), and 8.4(c)

• False statements and mail fraud by using inflated “hate group” tallies in the SPLC’s 2014 “Hate Map,” published in February 2015, in violation of federal law and Rule of Professional Conduct 4.1(a)

• False statements and mail fraud by use of an amorphous, self-serving definition of “Hate Group” at odds with its widely-accepted connotation in the SPLC’s  2010-2016 “Hate Maps,” in violation of federal law and Rule of Professional Conduct 4.1(a)

• False statements and mail or wire fraud by deliberate inaccurate statements regarding Majid Nawaz on the SPLC’s list of “anti-Muslim extremists,” a list prominently displayed on the SPLC’s website in 2016 and 2017, in violation of federal law and Rule of Professional Conduct 4.1(a)

• False statements and mail fraud by falsely stating that Allen had “infiltrated” the Baltimore City Law Department in the SPLC’s 2016 “Hate Map,” in violation of
federal law and Rule of Professional Conduct 4.1(a)

• Improperly participating in partisan political campaigns against announced candidates in the 2016 electoral cycle in violation of federal law applicable to
501c3 organizations

• False statements and mail fraud by falsely stating on the SPLC’s 2016 IRS Form 990 that it had not participated in partisan political campaigns, in violation of
federal law and Rule of Professional Conduct 4.1(a)

• Menacing or harassment with a shotgun by Morris Dees acting for the SPLC, as described in Dees’ 1991 and 2003 autobiographies, in violation of Alabama law
and Rules of Professional Conduct 8.4(b) and 8.4(c)

• Engaging in conduct prejudicial to the administration of justice by submitting documents before a judicial tribunal replete with smears, name-calling, and invective, in 2015, in violation of Rule of Professional Conduct 8.4(d)

• Disclosure of confidential and /or privileged documents in the SPLC’s May 20, 2015 “Chaos at the Compound” article written by Beirich, in violation of Rule of
Professional Conduct 4.4(b)

• Disclosure of confidential and / or privileged documents in its August 17, 2016 article about Allen written by Beirich, in violation of Rule of Professional
Conduct 4.4(b)

• Failure to properly train and supervise Beirich and Potok in legal matters such as attorney client privilege, breaches of confidentiality agreements, receipt of stolen
property, and commercial bribery, in violation of Rule of Professional Conduct 5.3

• Seeking to destroy organizations the SPLC describes or monitors as so-called “hate groups” and persons it describes as hateful or “extremist”

• Advocating and / or orchestrating violations of the constitutional rights of Allen and other entities and persons it describes or monitors as so-called “hate groups,” hateful persons, or “extremists”

• Disregard of even a semblance of balance or objectivity in its August 17, 2016 Article about Allen and in other articles it has published about other entities and persons it describes or monitors as so-called “hate groups,” hateful persons, or “extremists”

• Disregard of the Rule of Professional Conduct 1.2(b) that a lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views

• Disregard of the Rules of Professional Conduct admonition that lawyers should  accept a fair share of unpopular matters or unpopular clients

• A primary focus on fundraising, which, among aspects, leads it to adopt sensationalist supermarket tabloid style journalism

• Massive surveillance operations, which include numerous informants and spies.