United States v. Marc S. Kelley
56 A.F.T.R.2d (RIA) 5634, 769 F.2d 215, 1985 U.S. App. LEXIS 21878 (1985)
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Rule of Law:
The First Amendment does not protect speech that actively urges and instructs listeners to commit specific, imminent violations of current law, such as filing false tax forms.
Facts:
- The defendant, Kelley, organized and led a group called the Constitutional Tax Association, which charged members dues.
- Kelley's doctrine was that the federal income tax is unconstitutional as applied to wages, and he prepared a 'legal brief' arguing this point.
- In exchange for payment, Kelley provided members with packets containing W-4 forms, detailed instructions on how to fill them out to claim exemption from withholding, and told them to attach his brief.
- He instructed members to report zero wages on their income tax returns and to destroy their credit cards and deal only in cash to avoid a 'paper trail' for the IRS.
- Kelley had a back-up plan where he advised members to claim exactly twelve dependents on a W-4 form, believing this number was below the threshold that would trigger mandatory reporting by an employer to the IRS.
- Kelley offered to speak with any employer who questioned a member's W-4 form.
- While advising his members to engage in these activities, Kelley filed his own personal income tax return for the prior year, properly reporting his wages.
Procedural Posture:
- The United States prosecuted Kelley in federal district court (the trial court).
- Kelley was convicted by a jury of conspiring to defraud the federal government and of aiding and assisting in the preparation of false W-4 forms.
- Kelley, as the appellant, appealed his conviction to the United States Court of Appeals for the Fourth Circuit.
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Issue:
Does the First Amendment's protection of free speech shield an individual from criminal liability for providing detailed instructions and materials to others on how to file false tax forms with the intent that they do so?
Opinions:
Majority - Haynsworth, Senior Circuit Judge
No. The First Amendment does not protect speech which urges listeners to commit violations of current law. Kelley's speech was not an abstract criticism of tax laws or advocacy for congressional reform; rather, it was direct incitement to illegal action. He provided specific instructions, supplied the necessary forms, and intended for his paying members to follow his advice and file false returns. Citing precedents like Brandenburg v. Ohio, the court reasoned that while the First Amendment envelops critical and abstract discussions of law, it offers no protection for speech that directly urges illegal conduct, especially when the advice is heeded and false forms are actually filed. The court also rejected Kelley's other arguments, finding his participation in the preparation of the forms was real even without physically writing on them, and that prosecuting him as the 'ringleader' without his followers was not impermissible selective prosecution.
Analysis:
This decision reinforces the established boundary between protected abstract advocacy and unprotected incitement to illegal conduct under the Brandenburg test. It clarifies that orchestrating a scheme, providing the specific means (forms and instructions), and encouraging imminent illegal action moves speech from the realm of protected political discourse to that of criminal conspiracy and aiding and abetting. The case is significant for its application in the context of tax-protester movements, affirming the government's ability to prosecute the architects of such schemes who cannot use the First Amendment as a shield for what is essentially criminal solicitation.
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