Nos.

08-1312 and 08-1586

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
WILLIAM J. BENSON,
Defendant - Appellant

Appeal From The United States District Court

For the Northern District of Illinois, Eastern Division
Case No. 1:04-cv-07403
The Honorable Samuel Der-Yeghiayan

RESPONSE AND REPLY BRIEF OF APPELLANT

WILLIAM J. BENSON

Jeffrey A. Dickstein
Attorney for the
Defendant-Appellant and Cross-
Appellee William J. Benson

500 W. Bradley Rd., C-208

Fox Point, WI 53217

(414) 446-4264
Table of Contents

Page

Table of Contents.............................................. i
Table of Authorities ........................................... iii
RESPONSE OF APPELLANT ..................................... 1
Arguments the United States Forfeit by Failing to Address ........... 1
Response to Arguments Made by United States .................... 4
Benson has not organized and sold a plan or arrangement within
the meaning of � 6700(a)(1)(A)(iii) ............................ 4
Benson has not made a false statement regarding tax benefits to be
derived from the reliance packages ........................... 8
Benson has no reason to know that 35 is more than 36 ...........11
Benson made no false statements, so materiality of those
statements is immaterial ..................................12
An injunction is necessary to stop the United States from violating
the First Amendment .....................................14
The injunction absolutely infringes on Benson�s First Amendment
rights .................................................15
Conclusion ...............................................22
THE GOVERNMENT�S CROSS APPEAL ............................25
The District Court Did Not Err In Refusing To Order Benson To Provide His
�Customer� List .........................................25

A. The Government�s request for Benson�s customer list does

not fall within the District Court�s authority under I.R.C. � 7402(a) 25

B. Benson has a valid Fifth Amendment right not to admit

the existence of the requested records, much less produce

i
 their contents ........................................29
C.The requested list is privileged under the First Amendment ......31
Conclusion ...............................................37
Certificate of Compliance with F.R.A.P. 28.1(e)(2)(A)(1) .................38
Circuit Rule 31(e)(1) Certificate ..................................39
Proof of Service ..............................................40

ii
Table of Authorities

Page

Cases:

Associated Students v. Attorney General,

368 F.Supp. 11 (C.D.Cal. 1973)................................18

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983) ......................................18, 20

Brandenburg v. Ohio,
395 U.S. 444 (1969) ......................................6, 18

Breard v. City of Alexandria, La.,

341 U.S. 622 (1951) ........................................34

Coleman v. Miller,
307 U.S. 433 (1939) ........................................ 1

Day v. South Park Indep. School Dist.,

768 F.2d 696 (5th Cir.1985) ..................................35

Field v. Clark,
143 U.S. 649 (1892) ........................................ 1

Gibson v. Fla. Leg. Investigation Comm.,

372 U.S. 539 (1963) ........................................32

Heffron v. International Society for Krishna Consciousness,

452 U.S. 640 (1981) ........................................18

Heiner v. Donnan,
285 U.S. 312 (1932) ........................................ 2

In re First Nat'l Bank, Englewood, Co.,

701 F.2d 115 (10th Cir. 1983).................................33

In re Orthopedic Bone Screw Prods. Liab. Litig.,

193 F.3d 781 (3d Cir. 1999). ..................................20

iii
King v. Federal Bureau of Prisons,
415 F.3d 634 (7th Cir. 2005) .................................34

Lamont v. Postmaster General of United States,

381 U.S. 301 (1965) ........................................35

Leblanc-Sternberg v. Fletcher,
781 F.Supp. 261 (S.D.N.Y. 1991)...............................35

Leser v. Garnett,

258 U.S. 130 (1922) ........................................ 1

Maness v. Meyers,
419 U.S. 449 (1975) ........................................30

Marbury v. Madison,
5 U.S. 137 (1803) ..........................................23

Marshall v. Barlow's,
436 U.S. 307 (1978) ........................................25

Mathis v. New York Life Ins. Co.,

133 F.3d 546 (7th Cir.1998) .................................. 1

McDonald v. Smith,
472 U.S. 479 (1985) ........................................35

Miller v. United States,

868 F.2d 236 (7th Cir. 1989) ..............................19, 33

NAACP v. Alabama ex rel. Patterson,

57 U.S. 449 (1958) ......................................32, 33

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ........................................18

Pelfresne v. Village of Williams Bay,

917 F.2d 1017 (7th Cir.1990) ................................. 1

Pollock v. Farmers� Loan & Trust Company,

157 U.S. 429, 574,
aff. reh., 158 U.S. 601 (1895) .................................11

iv
Resistance v. Commissioners of Fairmont Park,

City of Philadelphia, Pa.,

298 F.Supp. 961 (E.D.Penn. 1969) .............................17

Sandstrom v. Montana,
442 U.S. 510 (1979) ........................................ 2

Schlesinger v. State of Wisconsin,

270 U.S. 230 (1926) ........................................ 2

Stanley v. Georgia,
394 U.S. 557 (1969) ........................................36

Stanley v. Illinois,
405 U.S. 645 (1972) ........................................ 2

Tot v.United States,

319 U.S. 463 (1943) ........................................ 2

U.S. Healthcare, Inc. v. Blue Cross of Greater Phila.,

898 F.2d 914 (3d Cir.1990) ...................................20
United States v. Argomaniz,
925 F.2d 1349 (11th Cir. 1991) ................................30

United States v. Ballin,

144 U.S. 1 (1892) .........................................1, 9

United States v. Belgrave,

484 F.2d 915 (3rd Cir. 1973). ................................. 3

United States v. Bell,

414 F.3d 474 (3rd Cir. 2005)...............................21, 33

United States v. Benson,

941 F.2d 598 (7th Cir. 1991)..................................11

United States v. Bowen,

414 F.2d 1268 (3rd Cir. 1969)................................. 3

United States v. Brown,

899 F.2d 677 (7th Cir.1990) .................................. 1

v
United States v. Ernst & Whinney,
735 F.2d 1296 (11th Cir. 1984) ................................28

United States v. Grayson County State Bank,

656 F.2d 1070 (5th Cir.1981),
cert. denied, 455 U.S. 920 (1982) ...............................33

United States v. Hempfling,

Case No. 1:05-CV-00594 (E.D.Cal. 2005) ........................ 4

United States v. Hughes,

Case No. 1:07-CR-0085 (W.D.Mich.S.D. 2007) .....................30

United States v. Kaun,

827 F.2d 1144 (7th Cir. 1987) ...............................5, 33

United States v. Mobil Corp.,

543 F.Supp. 507 (N.D.Tex.1981) ............................ 25-28

United States v. Neff,

615 F.2d 1235 (9th Cir. 1980) .................................30

United States v. Papia,

910 F.2d 1357 (7th Cir.1990) ................................. 1

United States v. Perry,

474 F.2d 983 (10th Cir. 1973) ................................ 3

United States v. Raymond,

228 F.3d 804 (7th Cir. 2000) ...............................5, 33

United States v. Sharp,

920 F.2d 1167 (4th Cir. 1990) .................................30

United States v. Simmons,

476 F.2d 33 (9th Cir. 1973) .................................. 3

Vlandis v. Kline,
412 U.S. 441 (1973) ........................................ 3

Whitney v. California,
274 U.S. 357 (1927) ........................................ 7

vi
Yates v. United States,
354 U.S. 298 (1957) ........................................18

Statutes:

18 U.S.C. � 371 ..............................................30

26 U.S.C. � 6001 ..........................................25, 26
26 U.S.C. � 6700 .....................................4, 14, 15, 22
26 U.S.C. � 6700(a)(1)(A)(iii) ..................................4, 5, 8
26 U.S.C. � 6700(a)(2)(A)-(B) .................................... 9
26 U.S.C. � 7201 .............................................30
26 U.S.C. � 7203 .............................................30
26 U.S.C. � 7402(a) ............................... 15, 25, 26, 28, 37
26 U.S.C. � 7408 .............................................15
26 U.S.C. � 7609 .............................................26
26 U.S.C. � 7609(a) ...........................................27
26 U.S.C. � 7609(a)(3) .........................................27
26 U.S.C. � 7609(f) ...........................................27
26 U.S.C. �� 7602-7610........................................26

United States Constitution:

U.S.CONST. amend. I ............................ 9, 15, 24, 29, 31, 37

U.S.CONST. amend. V ................................10, 29, 31, 37
U.S.CONST. amend. XVI ......................... 9, 10, 12, 19, 20, 22
U.S.CONST, art. V ........................................2, 3, 22

vii
Rules of Court:

FED.R.EVID.803(8) ...........................................17
FED.R.EVID. 902 .............................................17
FED.R.APP.P. 28(a)(4) ......................................... 1

Other Authorities:

ORWELL,GEORGE, 1984, Chapter 20 (1949) ............................12

Practitioner�s Handbook for Appeals,

p. 74 .................................................... 1
viii
RESPONSE OF APPELLANT
Arguments the United States Forfeit by Failing to Address.

The United States does not address any of the eight specific �Statement of
the Issues� raised in Benson�s Opening Brief. This failure violates the Court�s
admonition that: �The appellee�s brief should squarely meet the appellant�s
points.� Practitioner�s Handbook for Appeals, p. 74. FED. R. APP. P. 28(a)(4)
requires litigants to cite to relevant authorities in support of their arguments.
United States v. Papia, 910 F.2d 1357, 1363 (7th Cir.1990). "A litigant who fails
to press a point by supporting it with pertinent authority . . . forfeits the
point.�
Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir.1998). See also
Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990) (the
court will not do a party's research); United States v. Brown, 899 F.2d 677, 679
(7th Cir.1990) (this court has no duty to construct legal arguments for
litigants).

In particular, the United States forfeits Benson�s legal argument that the
federal judiciary is not precluded from resorting to legislative journals to
determine if a law was actually passed by the requisite number of votes, United
States v. Ballin, 144 U.S. 1 (1892), and that with respect to whether a sufficient

number of states voted to ratify the Sixteenth Amendment, the courts have
uniformly misapplied the doctrine of stare decisis by holding Field v. Clark, 143

U.S. 649 (1892), Leser v. Garnett, 258 U.S. 130 (1922) and Coleman v. Miller,
1
307 U.S. 433 (1939) preclude such review. Benson�s argument is set forth at
pp. 13-16 of his Opening Brief and nowhere rebutted by the United States.

The United States also forfeits Benson�s argument that in no case regarding
the Sixteenth Amendment have the issues ever been raised that: 1) some states
intentionally amended the proposed language passed by Congress; 2) that
neither Secretary of State Knox nor the Solicitor ever considered this possibility

because Article V precludes such conduct; 3) that taking into account those
states that did intentionally amend the proposed Sixteenth Amendment less
than the constitutionally mandated thirty-six states voted for ratification; 4)
that Secretary of State Knox relied upon a false presumption; 5) that to the
extent Revised Statute 205 allows the Constitution to be amended by
presumption rather than ratification as required by U.S. CONST. art. V, the
statute is unconstitutional; and 6) that to the extent the �enrolled bill rule�
prohibits the federal judiciary from examining whether U.S. CONST. art. V was
complied with, the �enrolled bill rule� is unconstitutional. (Benson�s Opening
Brief, id.)

The United States also forfeits Benson�s argument that the District
Court�s finding that his statement was false as a matter of law violated the
holdings of Sandstrom v. Montana, 442 U.S. 510, 521-523 (1979); Stanley v.
Illinois, 405 U.S. 645, 654-657 (1972); Heiner v. Donnan, 285 U.S. 312, 325-29
(1932); Schlesinger v. State of Wisconsin, 270 U.S. 230 (1926); Tot v. United
States, 319 U.S. 463, 468-69 (1943); Vlandis v. Kline, 412 U.S. 441, 446 (1973);

2
United States v. Bowen, 414 F.2d 1268, 1273 (3rd Cir. 1969); United States v.
Simmons, 476 F.2d 33, 37 (9th Cir. 1973); United States v. Perry, 474 F.2d 983,
984 (10th Cir. 1973); and United States v. Belgrave, 484 F.2d 915 (3rd Cir.
1973). (Benson�s Opening Brief, pp. 16-17).

The District Court used a conclusive presumption to preclude Benson from

presenting facts as to an essential element to the cause of action; i.e., whether
his statement was true or false. Benson relied on facts contained in documents
certified by the Secretaries of the several States and from the National
Archives. The United States has never asserted those documents do not prove
exactly what Benson contends they prove: 1) Secretary of State Knox relied
upon presumptions which were false; 2) that only forty-two states provided
certificates of ratification to Knox; 3) that six of those states rejected
ratification; 4) that of the remaining thirty-eight states, Oklahoma, Missouri
and Washington intentionally amended the proposed language of the Sixteenth
Amendment and cannot be counted; and 5) that thirty-five is less than the
mandated thirty-six required by U.S. CONST. art. V.

The United States forfeits Benson�s arguments that: 1) the District Court in
essence directed a verdict against Benson as to an essential element of the
government�s cause of action (Benson�s Opening Brief, p. 21); and 2) the record
discloses that Benson did present sufficient evidence to establish the existence
of a genuine issue of material fact whether his statements were true or false,

3
which precluded the issuance of summary judgment against Benson (Benson�s
Opening Brief, p. 23).

Response to Arguments Made by United States.

Benson has not organized and sold a plan or arrangement

within the meaning of � 6700(a)(1)(A)(iii).

The United States argues at p. 33 of its brief that it is undisputed that

Benson offered the 16th Amendment Reliance Package for sale on the Free
Enterprise Society website. What is undisputed is that the 16th Amendment
Reliance Package was offered for sale on the Free Enterprise Society website,
but there is no evidence that Benson offered it for sale there. The United States
makes no distinction whether the �customers� purchased from Benson or from
the Free Enterprise Society, a point that will be critical later when the Internal

Revenue Service asserts penalties for violation of the abusive tax shelter law.
Neither in the court below nor in the section 6700 action brought against the
Free Enterprise Society (United States v. Hempfling, Case No. 1:05-CV-00594
(E.D.Cal. 2005) was any proof presented that Benson received any of the
proceeds of the sales of what the Free Enterprise Society sold on its website.
These were separate lawsuits that were not joined; joint liability is not
appropriate. The case should be remanded to the district court to correct this
error.

The United States argues at p. 33 of its brief that because the Reliance
Defense Package was presented as a �compendium of information� in written,

4
digital, and video form while the 16th Amendment Reliance Package comprised
an array of written materials, each package is thus a �plan or arrangement�
within the meaning of I.R.C. � 6700(a)(1)(A)(iii). Contrary to this bald
assertion,
more is required than the fact of existence. What differentiates protected
political speech from an abusive tax shelter is some affirmative conduct, for
pay, such as the preparation of tax returns by the promoter. (Benson�s Opening
Brief, pp. 21-45).

The United States argues that Benson was �inciting the imminent breaking
of the tax laws� by advertising and selling �preprinted letters with the
purchaser�s name and . . . personal information and �individually tailored form
letters, just as in United States v. Raymond, 228 F.3d 804 (7th Cir. 2000) and
United States v. Kaun, 827 F.2d 1144 (7th Cir. 1987). The allegation is false;
Benson never advertised such letters for sale. (Record as a whole). What
Benson did advertise for sale was a �compendium of information� (Doc. 42, Ex.
A at 7-10, 16, 17) and what Benson urged, rather than the non-filing of tax
returns1 or other imminent breaking of the law, was �political action�:

Let the people answer the question the government refuses to

answer�and let the people preserve our Constitution. We the people

must take political action in an attempt to force the government to

decide a very important question, i.e., �Was the 16th Amendment legally

certified and ratified?� If it was not, there is no law which can be violated

and therefore, the people are being politically prosecuted.

1. The record is barren of any evidence that Benson ever advised anyone not to
file a
tax return.
5
Doc. 40, Exhibit K, pp. 8-9 (emphasis added).
Urging �political action� does not constitute the sale of an abusive tax shelter.
Urging political action is protected speech that cannot be enjoined. (See
Benson�s Opening Brief, pp. 21-45).

The United States argues at p. 35 of its brief that Benson�s supplying

someone with a personalized statement that it is �insanely unrealistic� for that
person to believe that he would be required to file tax forms, and that he �relies

on� Benson�s book �as his state of mind, frame of mind, reliance and belief� is
neither education nor a choice. What Benson believes is �insanely unrealistic�
is irrelevant to the issue. Stating an opinion as to what is insanely unrealistic
comes nowhere close to proscribable "incitement to imminent lawless action."
See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

Relevant here is that Benson does not instruct anyone to copy the letter and
send it to the IRS, does not instruct anyone not to file a tax return, does not
prepare or help in the preparation of tax returns, or do anything else other
than express his opinion that the Sixteenth Amendment was not ratified and
that political action is necessary to restore adherence to the apportionment
requirements for direct taxes. (Record as a whole). Relevant also is that Benson
nowhere advocates that anyone violate the law.

Every denunciation of existing law tends in some measure to increase the

probability that there will be violation of it. Condonation of a breach

enhances the probability. Expressions of approval add to the probability.

... Advocacy of law-breaking heightens it still further. But even advocacy

of violation, however reprehensible morally, is not a justification for

6
denying free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be immediately
acted upon.

Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J.,

concurring).
There is absolutely no proof in the record that any of the purchasers identified
by the United States stopped filing returns because of anything contained in
the information they obtained. The United States chose not to present any
evidence as to when any of the six stopped filing and when those six obtained
the information. The United States� mere inference that the six stopped filing
because of the information hardly rises to proof by any evidentiary standard.

As found by the District Court:

Nor can it be assumed that Benson�s customers did not pay their taxes
merely because they purchased the Reliance Defense Package or related
package.

Memorandum Opinion, Doc. 106, p. 19.

Furthermore, Doc. 74 establishes that one of Benson�s audience, who files

tax returns, used the material to petition for redress of grievance (Doc. 74, p.
4,
� 11). Perhaps Benson�s material incited him to do that, but petitioning for
redress of grievance does not constitute illegal conduct. Doc. 74 also
establishes that one of Benson�s audience, who files tax returns, obtained the
material for the sole purpose of educating himself as to Benson�s opinion, and
has never used the material for any other purpose (Doc. 74, pp. 4-5, � 12). This

7
record belies the United States� argument that the material could not be used
to give one an education or choice.
Benson has not organized and sold a plan or arrangement within the
meaning of � 6700(a)(1)(A)(iii).

Benson has not made a false statement regarding tax

benefits to be derived from the reliance packages.

The United States, at p. 37 of its brief, hits the nail right on the head. The
United States acknowledges that �the crux of Benson�s advise to customers is
that �it is entirely possible to challenge the very foundation� of the federal
taxing
power on the ground of non-ratification of the Sixteenth Amendment.� Benson
nowhere, however, advises anyone on how to make this challenge other than
through �political action.� (Record as a whole).

Although the United States next attempts to assert Benson made other false
statements than what was alleged in the Complaint, there is only one false
statement Benson is charged with making:

Benson falsely tells customers that the federal income tax is

unconstitutional because, according to his legally frivolous theory, the
Sixteenth Amendment to the Constitution�which was adopted in 1913
and permits Congress to impose federal income taxes�was not properly
ratified by the states.

Doc. 1, p. 3, � 8.

Whatever conclusion the readers of this statement may come to, the
statement itself does not meet the conduct proscribed by 26 U.S.C. �
6700(a)(2)(A)-(B) which requires a statement with respect to the allowability of

8
any deduction or credit, the excludability of any income, or the securing of any
other tax benefit by reason of holding an interest in the entity or participating
in the plan or arrangement, or a gross valuation overstatement as to any
material matter. Both the District Court�s findings and conclusions, and the
United States� arguments here, are based upon inference as opposed to actual
facts. Advising people that �political action� is necessary and stating a factual
basis for the challenge is protected by the First Amendment. Such statements
do not constitute any type of tax advice proscribed by the statute.

The United States argues at p. 41 of its brief that because the issue of the
ratification of the Sixteenth Amendment is beyond review, Benson�s statements
must be false as a matter of law. According to the Supreme Court, however, the
issue is not beyond review, even after a bill is properly enrolled. United States
v.
Ballin, 144 U.S. Furthermore, the cases relied upon by the District Court and
the United States do not directly address the precise issue raised by Benson in
the District Court or here. Not only has the United States failed to respond to
the stare decisis issue, it fails to acknowledge the issue raised by Benson is one

of first impression. If only thirty-five states voted to ratify the proposed

Sixteenth Amendment as passed by Congress, Benson�s statement is correct as
a matter of law.

The United States argues that the District Court correctly declined to hold
an evidentiary hearing because there were no disputed facts. The relevant facts
could not be disputed because the legislative journals are indisputable. Benson

9
moved the Court to have the facts deemed admitted. In response, the District
Court relied upon a conclusive presumption in violation of the Due Process
Clause of the Fifth Amendment, thereby committing reversible error. (Benson�s
Opening Brief, pp. 16-21).

The United States next argues the District Court�s refusal to exercise equity
jurisdiction was valid because such determination is based on the court�s
sound discretion. A district court has no discretion, however, to deny a litigant
due process by finding an ultimate issue against him based on a conclusive
presumption. Facts that directly prove or disprove an essential and ultimate
element of the cause of action are never irrelevant or immaterial.

The United States falsely argues at p. 43 of its brief that Benson was not
prevented from �presenting a defense.� The facts, however, are clear. An
element of the cause of action was whether Benson�s statement was true or
false. The United States alleges the statement is false. Benson�s defense is the
statement is true. Benson was not allowed to present this defense. The
argument of the United States is false.

10
Benson has no reason to know that 35 is more than 36.

Another example of the United States refusing to acknowledge the facts is

its repeated assertion, asserted again at p. 44 of its brief, that Benson had
been previously convicted while pursuing the very defense he advocates in the
Reliance Defense Package. Benson�s conviction, as this Court well knows, did
not involve a failure to file based on anything having to do with the Sixteenth
Amendment. See United States v. Benson, 941 F.2d 598 (7th Cir. 1991).

What Benson knew or should have known from the Benson case, and other
cases cited by the United States, was that the courts are closed to the
argument. That he learned what he should have learned is clearly evident
because he does not advocate taking the issue to court, but advocates instead
taking �political action.� It is the United States that failed to learn the courts

are closed, evidenced by the fact it chose to file a court action in which the
ratification of the Sixteenth Amendment issue is an essential element. Benson
challenged the propriety of that conduct below (See Benson�s Motion to
Dismiss, Doc. 11), and does so here.

Equally disturbing is the United States� position, asserted at p. 44 of its

brief, that there is no distinction between cases holding something is non-
justiciable and cases determining a factual issue after full briefing and
considered opinion. Only the latter is entitled to stare decisis precedent.
Pollock

v. Farmers� Loan & Trust Company, 157 U.S. 429, 574, aff. reh., 158 U.S. 601
(1895), and only the latter can be said to give Benson adequate notice. While
11
the United States� position correlates nicely with its refusal to address Benson�s

stare decisis argument, it fails to address the United States� Orwellian

contention that Benson knew, or should have known, that 35 is more than 36.2

Benson made no false statements, so materiality of those

statements is immaterial.

The United States asserts at p. 47 of its brief that it is �undisputed that

Benson�s materials advance the position that U.S. citizens are not required to
file federal income returns or pay federal income taxes and (according to
Benson) may refrain from doing so.� Benson disputes the contention. What is
undisputed is that Benson�s materials advance the position that if the Sixteenth
Amendment was not ratified, U.S. citizens are not required to file federal income
tax returns or pay federal income taxes; that less than the required thirty-six
states voted to ratify the Sixteenth Amendment, the courts refuse to address
the issue, and the people must take political action.

The United States falsely asserts that Benson admitted that Ronald Doyle
used the Reliance Defense Package precisely as it was intended, i.e., as a
purported justification for failing to file returns or pay tax. Benson admitted no

such thing. Benson admitted no more than Doyle presented material to the IRS

2. See, ORWELL, GEORGE, 1984, Chapter 20 (1949).

"You are a slow learner, Winston," said O'Brien gently.
"How can I help it?" he blubbered. "How can I help seeing what is in front of my
eyes? Two and two are four."
"Sometimes, Winston. Sometimes they are five. Sometimes they are three.
Sometimes they are all of them at once. You must try harder. It is not
easy to become sane."
12
after the IRS contacted Doyle and requested information. The United States
continues to bend the facts and its allegations, making contrary assertions at
will. The United States first contends that the material was to be used as a
defense to a criminal prosecution for failure to file. That, of course, does not
amount to a filing with the Internal Revenue Service that would constitute an
abusive tax shelter. The United States next contends that the material was to
be used to incite imminent lawless conduct by convincing people not to file
returns. Here the United States contends the material was to be used to
respond to a direct inquiry by the Internal Revenue Service. As stated
elsewhere, all of these contentions are nothing but inferences drawn by the
United States; the only fact proven by the record, however, is that Benson
intended the information to be used to urge people to take �political action,�
leaving the form of the political action to his audience.

The United States next asserts at p. 48 of its brief that �[i]t strains credulity
to suppose that taxpayers would pay hundreds and even thousands of dollars
for the Reliance Packages unless they were buying into Benson�s promise of
freedom from tax.� Whether it strains the United States or not, the record
discloses that John Doe I, a person who files tax returns and pays tax,
obtained the information to take �political action,� John Doe II, another tax
payer, for purely educational reasons, and Jane Roe would, if she could, obtain
the material to read it. (Doc. 74, pp. 4-5, �� 11-13).

13
The United States observes that the record is devoid of proof as to why the
decisions of Doyle, or any other non-filer, shouldn�t be attributed to Benson�s
material. The burden of proof, however, is on the United States, and as noted
above, it failed to establish when the individuals stopped filing, and whether it
was before or after they obtained the information from Benson or elsewhere.
Even the order of the events would not establish causation; it would merely
establish the order of the events. Furthermore, according to the Supreme
Court, what is protected speech is not to be judged based on the conduct of
those who hear the speech. This issue was fully briefed in Benson�s Opening
Brief, and is pretty much ignored by the United States as shown by its
argument here.

An injunction is necessary to stop the United States from

violating the First Amendment.

The United States, at page 50 of its brief, states Benson has pursued an
extensive campaign to promote �tax defiance,� and that Benson was the prime
mover in his �tax-fraud schemes.� All of the name-calling by the United States
does not convert Benson�s urging �political action� into conduct prohibited at

I.R.C. � 6700, and if it does, I.R.C. � 6700 is unconstitutional in its

application.
(See Benson�s Opening Brief). Protesting the government�s refusal to even look
at whether one of its own committed fraud, i.e., Secretary of State Knox, in
light of the overwhelming evidence that he did, is neither �tax defiance� nor a
�tax-fraud scheme.� Benson�s speaking out on the Internet about what he
14
considers governmental abuse of power is protected by the First Amendment. It
is the very essence of what the First Amendment is designed to protect. To
partially quote the United States, what the United States �fails to grasp� is that

Benson�s protest and call to �political action� is protected from statutory

injunction as a matter of law since Congress is prohibited from passing a law
respecting such speech. (Benson�s Opening Brief, pp. 21-45). Regardless of
whether the injunction proceeds by way of 26 U.S.C. � 7408 or 26 U.S.C. �
7402(a), when used to enjoin Benson�s �political action� speech, the statutes
transcend conduct prohibited by the First Amendment.

The injunction absolutely infringes on Benson�s First

Amendment rights.

The United States, at p. 55 of its brief, states that as an initial matter, it

bears noting exactly what has been enjoined. What has been enjoined is the
distribution of Benson�s speech and documents conclusively showing the
Sixteenth Amendment was not constitutionally passed by the requisite thirty-
six states. Benson�s Opening Brief lists the documents contained in his
material. (See Benson�s Opening Brief, pp. 38-40). It is the distribution of those

documents that has been enjoined on the ground that distributing the
documents constitutes conduct subject to penalty under Section 6700.

Thus, Benson has been enjoined from distributing pages from his criminal
trial transcript, a public record. Benson has been enjoined from distributing
this Court�s opinion in his criminal case, another public record. Benson has

15
been enjoined from distributing correspondence between himself and members
of Congress. Benson has been enjoined from distributing public documents on
file with the National Archives of the United States as well as legislative
journals of the forty-eight States.

Trial transcripts, court opinions, legislative journals, and other similar

documents, whether distributed piecemeal or in a compendium, are not
abusive tax shelters. The government has no legal authority to prohibit
Benson, or anyone else, from distributing those documents or speaking about
their content, or expressing an opinion regarding that content.

The United States argues enjoining the distribution of, and speech
regarding, those documents passes constitutional muster under Raymond,
Kaun and other cases. If so, the United States is just one case away from
controlling the distribution of anything. When the people are prohibited from
reviewing legislative journals and court cases, and discussing their content,
there is no liberty and there is no freedom of speech.

If the injunction, as written, is allowed to stand, then the continued

distribution of public records will subject Benson to criminal contempt. This
result would constitute a perverse violation of the prohibition placed on the
government by our Founding Fathers. The distribution of public records,
regardless of what those records say, cannot be enjoined unless they are
classified and involve national security. The documents at issue here are not

16
classified, do not involve national security, and their authenticity and
trustworthiness are beyond cavil. See FED. R. EVID. 803(8) and 902.

Here, the United States argues not only for the exclusion of such public
records as proof of an ultimate fact in the civil case they instituted, but for a
ban on their entire distribution. The manifest evil of what the United States
seeks is apparent on its face, regardless of how they package it for sale to this
Honorable Court.

The United States argues at p. 58 of its brief that public records sold by
Benson loses First Amendment protection because of the way in which some of
the purchasers use them. The Supreme Court disagrees:

The fact that some misguided participants or spectators at the rally may
�turn in� their draft cards, as symbolic of their disapproval of the Vietnam
War, does not justify the denial of the right of citizens to express views
which may provoke such conduct. Any individual who, by his voluntary
act, surrenders his draft card, can be effectively prosecuted under
existing federal law. That potential provocation may result from heated
debate is not a valid reason to preclude discussion.

Resistance v. Commissioners of Fairmont Park, City of Philadelphia,

Pa., 298 F.Supp. 961, 963 (E.D.Penn. 1969).
The fact that some recipients of Benson�s material may not file income tax
returns does not justify the denial of the right of Benson to express views
which may provoke such conduct, nor the right of others to receive the
material. See Yates v. United States, 354 U.S. 298, 313-322 (1957)(�Throughout
our decisions there has recurred a distinction between the statement of an idea
which may prompt its hearers to take unlawful action, and advocacy that such

17
action be taken. [Citation omitted.] There is nothing in Dennis which makes
that historic distinction obsolete.�); Brandenburg v. Ohio, 395 U.S. 444, 447-49
(1969)(�[t]he mere abstract teaching * * * of the moral propriety or even moral
necessity for a resort to force and violence, is not the same as preparing a
group for violent action and steeling it to such action�). The Brandenburg test
does not rise and fall on the actions of listeners, but on the actual conduct of
the speaker. This principle does not change merely because the issue involves
federal taxation. Furthermore, the record shows some of Benson�s readers take
no action at all, much less dive into imminent lawless action.

The United States next argues Benson�s speech may be enjoined because it
is sold. Here too, the Supreme Court disagrees:
In addition, plaintiffs' distribution of literature does not lose First
Amendment status simply �because the written materials sought to be
distributed are sold rather than given away, or because contributions or
gifts are solicited in the course of propagating the faith.�
Heffron v. International Society for Krishna Consciousness, 452 U.S.
640, 647 (1981). See also Bolger v. Youngs Drug Products Corp.,
463 U.S. 60, 66-67 (1983); New York Times Co. v. Sullivan, 376

U.S. 254, 265-66 (1964); Associated Students v. Attorney General,

368 F.Supp. 11, 24 (C.D.Cal. 1973).
It is impossible to give credence to the United States� argument at p. 59 of
its brief that Benson�s �life�s work�3 is �solely related to the economic interest
of
the speaker and his audience� in not paying taxes. The United States notes at

p. 5 of its Brief that this Court has recognized Benson�s book as the
3. United States� Brief at p. 50.
18
�manifesto� of the �tax protester movement.� The Court itself recognized
Benson and his compatriots are involved in attacking the federal income tax
structure. Miller v. United States, 868 F.2d 236, 241 (7th Cir. 1989). No doubt if

it then existed, the Internal Revenue Service would have attempted to enjoin
our Founding Fathers� protest of being taxed without their consent, or the
protest against a tax on tea from which one of our most cherished blows for
freedom was struck. Labeling Benson and his audience as �tax defyers� does
not, however, turn his protest into commercial speech.

So too, the exorbitant interest and penalties which triple the amount
collected from those who do not file tax returns belie the argument that non-
filing as a protest is motivated by economics. Furthermore, when the Sixteenth
Amendment goes away, Congress will pass a new law, hopefully constitutional,
to replace it, in which the same amount of tax, or more, will be collected. And
finally, the facts before the Court documented by the Applicant Intervenors
below at Doc. 74, conclusively show the issue is protest and education, not tax
evasion.

The United States� argument that Benson�s motives are only or primarily
financial and that he is engaged in nothing more than an advertising plot
cannot be taken seriously. This Court knows, as evidenced by its words in
Miller, that Benson sees himself as a crusader against injustice and an
opponent to governmental oppression. This brings him firmly within the
democratic tradition and within the protection of the Bill of Rights.

19
There is no economic motive involved in Benson�s protest. His motive is to
force the federal government, through political action, to be bound by the
chains of the Constitution. Urging such political action neither constitutes
illegal action or involves speech that is false, unless of course, 35 is
determined
by this Court to be more than 36.

Commercial speech is defined as "expression related to the economic

interests of the speaker and its audience, generally in the form of a commercial
advertisement for the sale of goods and services." U.S. Healthcare, Inc. v. Blue
Cross of Greater Phila., 898 F.2d 914, 933 (3d Cir.1990). To determine whether
speech is commercial, courts should consider whether: (1) the speech is an
advertisement; (2) the speech refers to a specific product or service; and (3) the

speaker has an economic motivation for the speech. Bolger, 463 U.S. at 66-67;
In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 793-794 (3d Cir.
1999). The compendium of information at issue here, consisting of court
transcripts, opinions of courts, government publications and public records of
the National Archives and legislative journals, the distribution of which has
been enjoined, nowhere contains an advertisement or refers to a specific
product or service. These documents do not constitute commercial speech. Any
finding that they do constitute commercial speech is a manifest abuse of
discretion. Yet the injunction of the District Court bans distribution of those
documents.

20
In United States v. Bell, 414 F.3d 474 (3rd Cir. 2005), in concluding the
materials on Bell's website were predominantly commercial speech, the District
Court made a factual finding that his website was the internet version of "a
television infomercial" made to entice visitors to join Bell's organization and
pay
him for tax advice. Bell, 414 F.3d at 479. That is commercial speech.

At note 6 of its opinion, the Third circuit stated:

We are mindful generally of the "difficulty of drawing bright lines that will

clearly cabin commercial speech in a distinct category." City of Cincinnati

v. Discovery Network, Inc., 507 U.S. 410, 419, 113 S.Ct. 1505, 123
L.Ed.2d 99 (1993). We have also noted that "often, speech consists of
complex mixtures of commercial and noncommercial elements." In re
Orthopedic Bone Screw, 193 F.3d at 793 (quoting Bolger, 463 U.S. at 81,
103 S.Ct. 2875 (Stevens, J. concurring)). No such complex mixture exists
here. Customers paid Bell for his advice and services in preparing
fraudulent tax returns, not for his colorful views on the tax code.
Bell, 414 F.3d at 480, n. 6 (emphasis added).

In an ironic twist, after arguing that Benson�s argument regarding the

necessity of finding affirmative conduct for pay, such as preparing tax returns,
is a red herring at p. 57 of its brief, the United States then cites, commencing
at p. 60 of its brief, those cases wherein courts have issued injunctions to
restrain affirmative conduct being offered for pay, such as preparing fraudulent
tax returns. Still missing, however, is the citation to any case where an
injunction was issued when the activity did not involve advertising for, or
receiving compensation for, providing, preparing or assisting in the preparation
of: 1) trusts to protect assets for those evading taxes; 2) false Forms W-4; 3)
false income tax returns or amended income tax returns; 4) letters to harass

21
and impede employees of the IRS; 5) pleadings to file court actions to claim
refunds of taxes paid; 6) FOIA requests; 7) letters and forms to rescind social
security numbers; or 8) inciting the imminent breaking of the tax laws.

Conclusion

The issue in this case is quite simple. Is 35 more than 36? If it is not, the
requirements of Article V were not met; the Sixteenth Amendment was not,
ratified; Benson�s speech is true; and, therefore, the United States did not carry

its burden in establishing a violation of 26 U.S.C. � 6700. In the absence of

such violation, the granting of summary judgment was an abuse of discretion,
as was the issuance of the permanent injunction, and the District Court�s
refusal to alter or amend its judgment.

Self-authenticating, non-hearsay documents, the existence of which is not

denied by the United States or the District Court, establish that several states
intentionally amended the language of the Sixteenth Amendment. Other self-
authenticating, non-hearsay documents, the existence of which is not denied
by the United States or the District Court, establish that Secretary of State
Knox relied on a false presumption that the States did not intentionally amend
the proposed language of the Sixteenth Amendment.

The United States does not contest the Constitution cannot be amended by
presumption, that to the extent the enrolled bill rule stands for the contrary
proposition it is unconstitutional, and that courts have the absolute power,
and duty, Marbury v. Madison, 5 U.S. 137, 177-180 (1803), to review legislative

22
journals when a non-frivolous argument is made that such journals show a
sufficient number of states failed to vote for a law, Ballin, 144 U.S. The sources

of Benson�s facts have not been, and cannot be, challenged; therefore, he has
made a non-frivolous argument.

The United States admits through the Office of Chief Counsel of the Internal
Revenue Service that Benson�s speech and distribution of documents are
protected by the First Amendment. The plethora of case law cited in Benson�s
Opening Brief shows that the admission of the Department of the Treasury is
legally correct.

The District Court deprived Benson of his right to present the only defense
available to him. There is no clearer denial of due process, as shown by the
plethora of case law cited in Benson�s Opening Brief.

Are trials, whether by court or jury, no longer to be the place for impartial
fact finding? Are defendants no longer to have the right to present any defense
when charged with illegal conduct? Are the people now forced to accept that 35
is greater than 36 because whether that is true or not is non-justiciable in the
Courts of this country? Is the First Amendment to be no more than meaningless
words on a worthless piece of paper?

It was reversible error for the District Court to grant the United State�s
motion for summary judgment, to refuse to alter or amend the judgment, and
to issue an injunction prohibiting the distribution of public records. The

23
judgment of the District Court should be reversed and the case remanded with
instructions to dismiss the Complaint.

24
THE GOVERNMENT�S CROSS APPEAL

The District Court Did Not Err In Refusing To Order Benson To Provide

His �Customer� List.

A. The Government�s request for Benson�s customer list does not fall
within the District Court�s authority under I.R.C. � 7402(a).
The United States admits at p. 67 and p. 73 of its brief that the request for
Benson�s customer list is premised on � 7402(a). That section, however, does
not provide authority for the requested release of names. The law requires the
United States to proceed by way of administrative summons.

In United States v. Mobil Corp., 543 F.Supp. 507 (N.D.Tex.1981), the IRS
sought an injunction under � 7402(a) to require an employer to provide records
pertaining to his employees. The IRS argued the requirement to keep records at
26 U.S.C. � 6001 implied the IRS could inspect them at will. Mobil argued the
records could only be inspected by the use of an administrative summons.

The court first noted that the request put into issue whether it was
constitutionally permissible for the IRS to inspect without a warrant or its
equivalent. Mobil, 543 F.Supp. at 509. The Court concluded that if the IRS�s
contention regarding Section 6001 was adopted, it would be giving to the IRS
authority to inspect without the judicial supervision arguably required under
the fourth amendment. The court cited to the Supreme Court�s holding in
Marshall v. Barlow's, 436 U.S. 307 (1978). Mobil, 543 F.Supp. at 517-18.

25
The Court next sought to ascertain congressional intent regarding the right
of the IRS to obtain records by an injunction issued under Section 7402(a). The
Court reasoned a clue to congressional intent was found in the structure of the

I.R.C. because it is a comprehensive code with a logical organizational

structure. That organizational structure, the Court held, mandated the
conclusion that �Section 6001 requires record keeping depending upon its
companion provisions found in Sections 7602-7610 for the procedure for
inspection of those records.� Mobil, 543 F.Supp. at 511.
Continuing its scholarly analysis, the Court reviewed the legislative history
of Sections 7602-7610 and found that Congress intended that those provisions
were to be the sole means under the Code for the IRS to obtain information
regarding taxpayers held by third parties. Mobil, id. In particular, Senator
Haskell, the Chairman of the Senate subcommittee which, in 1976, reported
amendments to the provisions of the Code concerning administrative
summons, remarked on the Senate floor concerning the new provision
governing the issuance of "third party" summons, Section 7609, as follows:

PROTECTION OF THE TAXPAYERS' RIGHTS AND PRIVACY

Mr. Haskell. Mr. President, I rise to briefly clarify a point raised about a

provision in the tax bill, H.R. 10612, which we have just passed. The

provision in question, Sec. 1205, restricts the use of administrative

summons by the IRS to gain access to records held by third parties, such

as banks, brokers, lawyers, and accountants.

The question which has been raised is whether these rules are the

exclusive method of access to these records or whether the IRS can avoid

26
these rules and get the records by informal access without any type of

summons.

As chairman of the Administrative Subcommittee of the Finance

Committee, I studied this issue in depth. Senator Doyle, the ranking
Republican on the subcommittee, and I proposed the provision to the
committee and it was adopted.

We heard much testimony on the abuses of taxpayer's rights by the IRS

in various situations. As a result, the tax bill contains many
administrative provisions designed to protect the taxpayers' rights and
privacy and limit the unbridled power of the IRS to examine a taxpayer's
records. In the future, the use of an administrative summons will require
the person whose records are sought to have notice and the opportunity
to object and require the more formal processes of a court-ordered
summons. We drew these strict rules to protect the right of privacy that
we felt every citizen expects, and rightfully so, in their personal bank
records, lawyer's files, et cetera.

At no time did we discuss the questions of allowing informal access to

these records without a summons of any sort. We carefully defined the
safeguards and spelled out several extraordinary situations in which
these procedures can be avoided where they might jeopardize an
investigation or the safety of a witness. It seems to me absurd to suggest
that the Congress would act so clearly to protect citizens from the
processes of an agency and make those protections optional, binding
only when the agency chose. ... (emphasis supplied). 127 Cong.Rec.
34772 (1976) (Comments of Sen. Haskell, Chairman, Administrative
Subcommittee of Senate Finance Committee.)

Mobil, 543 F.Supp. at 512.

Recognizing that Mobil was not a third party record keeper as defined by

I.R.C. � 7609(a)(3), the Court nonetheless held that the IRS, for purposes of the
notice requirements of 7609(a), would be required to comply with the "John

Doe" summons provisions of 7609(f) because the IRS has not identified "the

27
person(s) with respect to whose liability the summons is issued." Mobil, 543
F.Supp. at 516.

The Court denied the IRS's request for an injunction under � 7402(a)
commanding inspection of records because Congress had provided an
administrative procedure to serve precisely that purpose, and specifically found
that � 7402(a) could not be used to circumvent the required administrative
procedure. Mobil, 543 F.Supp. at 519.

In United States v. Ernst & Whinney, 735 F.2d 1296 (11th Cir. 1984), the IRS
filed a civil suit seeking to enjoin the accounting partnership Ernst & Whinney
from actions allegedly interfering with the administration of Internal Revenue
laws. Ernst & Whinney, 735 F.2d at 1298. Although the Mobil case was raised
for another point, the District Court stated:

The district court's conclusion that � 7402(a) creates no right to inspect

is clearly correct in light of congressional intent that IRS inspection be

carried out pursuant to 26 U.S.C.A. � 7602 et seq., with the procedural

safeguards therein provided.

Ernst & Whinney, 735 F.2d at 1300.

The situation here is closely analogous to Mobil. The IRS is seeking records
from Benson regarding un-named taxpayers for the purpose of investigating
their tax liability. Congressional intent and case law dictates such records
must be sought by administrative summons, not through an injunction issued
under Section 7402(a).

28
Although the United States is able to cite to a number of cases in which
courts have granted its request for records by injunctive order under � 7402(a),
in none of those cases was a direct challenge made that such relief was not
authorized by � 7402(a) and the IRS was required to proceed by administrative
summons.

Subsequent to the District Court�s refusal to require Benson to turn over the
names, the IRS issued an administrative summons, although not a John Doe
summons. After losing his bid to quash the summons in the District Court
(Doc. 158), Benson, through his undersigned attorney, sent a letter to the
agent who issued the summons not only asserting his right to remain silent
under the Fifth Amendment, but claiming the list sought by the IRS was
privileged under the First Amendment. To date, the IRS has not seen fit to
bring a summons enforcement action, although that remedy is still available to
it. Hence the United States loses no rights by the denial of its requested
injunctive relief and the people are served by requiring the United States to
comply with the law. Because the United States cannot prevail on this issue as
a matter of law, it has not shown it is entitled to the injunction, and the
District Court did not abuse its discretion in failing to order injunctive relief.

B. Benson has a valid Fifth Amendment right not to admit the existence
of the requested records, much less produce their contents.
29
The United States, at p. 5 of its brief, states: �Benson has not filed a federal
income tax return since 1976.� The United States asserts Benson sold Reliance
Packages for �hundreds and even thousands of dollars.� Brief at p. 48.

Benson is under criminal investigation by the Internal Revenue Service

regarding the distribution of his opinion that the Sixteenth Amendment was
not in fact ratified. See Exhibit A to Doc. 6. Not only did the District Court
opine that some customers may be potential co-conspirators with Benson and
tax cheats (Doc. 106, pp. 19-20), but Benson is specifically named in a four
count indictment of Charles Evans Hughes for wilful evasion of federal income
tax for purchasing Benson�s Reliance Package. See Indictment, p. 2, � 8 in
United States v. Hughes, Case No. 1:07-CR-0085 (W.D.Mich.S.D. 2007).4

These facts establish there is a substantial and real hazard of self-

incrimination if Benson admits he has records regarding customers and/or
produces those records. See Maness v. Meyers, 419 U.S. 449, 461 (1975);
United States v. Sharp, 920 F.2d 1167, 1170 (4th Cir. 1990); United States v.
Neff, 615 F.2d 1235, 1239 (9th Cir. 1980); United States v. Doe, 465 U.S. 605,
612-613 (1984); and United States v. Argomaniz, 925 F.2d 1349 (11th Cir.
1991). Prosecution for wilful failure to file income tax returns, 26 U.S.C. �
7203, wilful tax evasion, 26 U.S.C. � 7201, conspiracy to assist others to
commit those crimes and conspiracy to defraud, 18 U.S.C. � 371, are just a few

4. The Court is requested to take judicial notice of this document, available on

Pacer.
30
of the potential crimes for which Benson could be charged. Benson has an
absolute right to refuse to provide a link in the chain of evidence, whether that
link be the names of potential co-conspirators, an admission of income
sufficient to require the filing of tax returns, a substantial tax liability due
and
owing and/or an overt act establishing an evasion charge.

Benson�s right to claim protection from self-incrimination under the Fifth

Amendment is clear. Not only does the United States allege here that Benson
and his customers have criminally violated, or are currently criminally
violating, the tax laws, but one prosecutor has made receiving Benson�s
material an overt act of income tax evasion. The information requested is
incriminatory on its face. The District Court did not abuse its discretion in
refusing to grant the injunctive relief because such an order would violate
Benson�s right, under the Fifth Amendment, not to be compelled to be a
witness against himself.

C. The requested list is privileged under the First Amendment.

The United States argues at p. 76 of its brief that the interests of Benson�s
customers do not outweigh the Government�s need for his customer list. The
United States is mistaken.5

5. The United States may argue in reply that Benson is precluded from raising here

the Constitutional rights of his audience. Those rights, however, were directly
put
into issue by the United States inclusion of those rights in its brief.
Furthermore,
those rights may be properly argued here under NAACP v. Alabama ex rel.
Patterson, 357 U.S at 459-460.
31
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) involved a suit

against an association to enjoin it from conducting further activities, wherein

the association was adjudged in contempt for noncompliance with a court

order requiring it to produce records including the names of its members. In

refusing to require the production of the requested records, the Supreme Court

held:

It is hardly a novel perception that compelled disclosure of affiliation with

groups engaged in advocacy may constitute as effective a restraint on
freedom of association as the forms of governmental action in the cases
above were thought likely to produce upon the particular constitutional
rights there involved. This Court has recognized the vital relationship
between freedom to associate and privacy in one's associations. When
referring to the varied forms of governmental action which might interfere
with freedom of assembly, it said in American Communications Ass'n v.
Douds, supra, 339 U.S. at page 402, 70 S.Ct. at page 686: `A
requirement that adherents of particular religious faiths or political
parties wear identifying arm-bands, for example, is obviously of this
nature.' Compelled disclosure of membership in an organization engaged
in advocacy of particular beliefs is of the same order. Inviolability of
privacy in group association may in many circumstances be
indispensable to preservation of freedom of association, particularly
where a group espouses dissident beliefs. Cf. United States v.
Rumely, supra, 345 U.S. at pages 56-58, 73 S.Ct. at pages 550-551
(concurring opinion).

NAACP, 357 U.S. at 462 (emphasis added).

See also Gibson v. Fla. Leg. Investigation Comm., 372 U.S. 539, 544 (1963)

(holding compelled disclosure of affiliation with groups engaged in advocacy

may constitute an effective restraint on freedom of association). Other courts

recognize that the chilling effects of a summons served by an IRS agent to

obtain membership records of a tax protester group is "readily apparent."

32
United States v. Grayson County State Bank, 656 F.2d 1070, 1074 (5th
Cir.1981), cert. denied, 455 U.S. 920 (1982). The same conclusion was reached
regarding a subpoena issued by a grand jury. In re First Nat'l Bank, Englewood,
Co., 701 F.2d 115, 118 (10th Cir. 1983). There is little, if no, distinction
between these cases and the case here. Miller, 868 F.2d, identifies Benson and
�his compatriots� as people engaged in protest activities, thereby establishing
them as a group espousing dissident beliefs. The nature of the protest is
immaterial. NAACP, 357 U.S. at 460-61.

A critical fact here is that the record discloses that not every recipient of
Benson�s material failed to file tax returns or pay the tax. (See Doc. 74 and
Memorandum Opinion, Doc. 106, p. 19). People who participate in protester
type abusive tax shelters and commit federal tax crimes most typically send
forms or documents to the IRS in which they specify the grounds, whether
claiming lack of citizenship, the source argument, wages are not income, etc.
This is well documented in the cases cited by the United States, such as
Raymond, Kaun and Bell. The IRS is well equipped with their Abusive Tax
Shelter and Illegal Tax Protester divisions to identify those who violate the tax
laws. The record discloses, furthermore, that Benson both posted the
permanent injunction on his website and filed a declaration stating he mailed a
copy of the injunction to every person for whom he has a mailing address. (See
Docs 138 and 162). The United States� argument that it needs the names to
monitor continued compliance and to notify past customers is false on its face.

33
Benson has complied with the permanent injunction and stopped selling his

Reliance Package shortly after the United States filed its complaint.

In addition to infringement on the right to associate, there are additional

First Amendment rights held by Benson�s audience subject to being violated by

the issuance of the requested injunction. One of those rights is the freedom to

receive, possess, and read, what they desire to receive, possess and read:

�Freedom to distribute information to every citizen wherever he desires to

receive it is so clearly vital to the preservation of a free society that,
putting aside reasonable police and health regulations of time and
manner of distribution, it must be fully preserved.� Martin v. Struthers,
319 U.S. 141, 146-147 (1943).

Breard v. City of Alexandria, La., 341 U.S. 622, 628 (1951).

The refusal to allow King to obtain a book on computer programming

presents a substantial First Amendment issue. Freedom of speech is not
merely freedom to speak; it is also freedom to read. Stanley v. Georgia,
394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Lamont v.
Postmaster General, 381 U.S. 301, 306-07, 85 S.Ct. 1493, 14 L.Ed.2d
398 (1965); Conant v. Walters, 309 F.3d 629, 643 (9th Cir.2002). Forbid a
person to read and you shut him out of the marketplace of ideas and
opinions that it is the purpose of the free-speech clause to protect.

King v. Federal Bureau of Prisons, 415 F.3d 634, 638 (7th Cir.

2005) (Posner, J.).

The right to receive the information also includes the right not to be put on

a list:

The addressee carries an affirmative obligation which we do not think the

Government may impose on him. This requirement is almost certain to
have a deterrent effect, especially as respects those who have sensitive
positions. Their livelihood may be dependent on a security clearance.
Public officials like school teachers who have no tenure, might think they
would invite disaster if they read what the Federal Government says
contains the seeds of treason. Apart from them, any addressee is likely to

34
feel some inhibition in sending for literature which federal officials have
condemned as �communist political propaganda.� The regime of this Act
is at war with the �uninhibited, robust, and wide-open debate and
discussion that are contemplated by the First Amendment. New York
Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d

686.
Lamont v. Postmaster General of United States, 381 U.S. 301, 307

(1965).

So too, the recipients of Benson�s message, such as Mr. Doyle, have a

protected First Amendment Right to petition the government for redress of

grievance:

Resort to administrative, legislative, political or judicial processes is

protected by the first amendment so long as the petitioner is concerned
with obtaining relief afforded by the system. City of Columbia v. Omni
Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382
(1991); California Motor Transport. Co. v. Trucking Unlimited, 404 U.S.
508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Noerr, 365 U.S. 127, 81 S.Ct.

523. Even if the seeking of relief is animated by malevolence or

self-interest, the first amendment protects the right to petition of the
person whose activities are genuinely aimed at procuring favorable
government action. Omni, 111 S.Ct. at 1354 (quoting Allied Tube &
Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 n. 4, 108 S.Ct.
1931, 1937 n. 4, 100 L.Ed.2d 497 (1988)).
Leblanc-Sternberg v. Fletcher, 781 F.Supp. 261, 266 (S.D.N.Y.

1991).

The right to petition is inseparable from the right to speak. See McDonald v.

Smith, 472 U.S. 479, 482 (1985) (characterizing right to petition as �an

assurance of a particular freedom of expression�); Day v. South Park Indep.

School Dist., 768 F.2d 696 (5th Cir.1985) (right to petition is governed by

�public concern� analysis of Pickering), cert. denied, 474 U.S. 1101 (1986).

35
The IRS�s contemplated investigation of citizens for the mere possession of

Benson�s literature also violates perhaps the greatest liberty of all, the right
to

be let alone by government:

It is now well established that the Constitution protects the right to

receive information and ideas. This freedom (of speech and press) * * *
necessarily protects the right to receive * * *.� Martin v. City of Struthers,
319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943); see
Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14
L.Ed.2d 510 (1965); Lamont v. Postmaster General, 381 U.S. 301,
307-308, 85 S.Ct. 1493, 1496-1497, 14 L.Ed.2d 398 (1965) (Brennan, J.,
concurring); cf. Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct.
571, 69 L.Ed. 1070 (1925). This right to receive information and ideas,
regardless of their social worth, see Winters v. New York, 333 U.S. 507,
510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948), is fundamental to our free
society. Moreover, in the context of this case-a prosecution for mere
possession of printed or filmed matter in the privacy of a person's own
home-that right takes on an added dimension. For also fundamental is
the right to be free, except in very limited circumstances, from unwanted
governmental intrusions into one's privacy.

�The makers of our Constitution undertook to secure conditions favorable

to the pursuit of happiness. They recognized the significance of man's
spiritual nature, of his feelings and of his intellect. They knew that only a
part of the pain, pleasure and satisfactions of life are to be found in
material things. They sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations. They conferred, as against
the government, the right to be let alone-the most comprehensive of
rights and the right most valued by civilized man.� Olmstead v. United
States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928)
(Brandeis, J., dissenting). See Griswold v. Connecticut, supra; cf. NAACP

v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488
(1958).
Stanley v. Georgia, 394 U.S. 557, 564 (1969).

Conclusion

36
Contrary to the United States� assertion, the District Court did not abuse its
discretion in not granting the injunctive relief. Not only is such relief not
authorized under Section 7402(a), but release of the names violates both the
First and Fifth Amendments. The District Court did not err, but correctly
followed the law. The cross-appeal of the United States should be denied

Respectfully submitted,

JEFFREY A. DICKSTEIN
Attorney for Defendant-Appellant
and Cross-Appellee
William J. Benson

37
Certificate of Compliance with F.R.A.P. 28.1(e)(2)(A)(1)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 9,451 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it
has been prepared in a proportionally spaced typeface using Word Perfect
Version 12, Bookman Old Style typeface, 12 point size font in the main text,
and 11 point size font in the footnotes.
Jeffrey A. Dickstein
Attorney for Defendant-Appellant
and Cross-Appellee
William J. Benson

Dated: July 25, 2008.

38
Circuit Rule 31(e)(1) Certificate

IT IS HEREBY CERTIFIED than on July 25, 2008, a .pdf version of the Brief
of Defendant-Appellant, William J. Benson, generated from Word Perfect, was
posted via the Internet to the web-site of the Seventh Circuit Court of Appeals
and was e-mailed to counsel for the United States at the following address:

Richard.L.Parker@usdoj.gov
Andrea.R.Tebbets@usdoj.gov

Jeffrey A. Dickstein
Attorney for Defendant-Appellant
and Cross-Appellee
William J. Benson

39
Proof of Service

IT IS HEREBY CERTIFIED that two copies of the RESPONSE AND REPLY

BRIEF OF APPELLANT WILLIAM J. BENSON was placed in the United States

Mail, postage pre-paid, on July 25, 2008, addressed to counsel for the United

States as follows:

Richard L. Parker
Andrea R. Tebbets

U.S. Dept. of Justice, Tax Division

Appellate Section
P.O. Box 502
Washington, D.C. 20044
IT IS FURTHER HEREBY CERTIFIED than on July 25, 2008, a .pdf version

of the foregoing, generated from Word Perfect, was e-mailed to the following

address:

Richard.L.Parker@usdoj.gov
Andrea.R.Tebbets@usdoj.gov

Jeffrey A. Dickstein
Attorney for Defendant-Appellant
and Cross-Appellee
William J. Benson

40