[Noisebridge-discuss] Should NB mirror WikiLeaks?

[Dr. Jesus]

On Tue, Dec 7, 2010 at 11:32 AM, Sai <sai at saizai.com> wrote:
> On Tue, Dec 7, 2010 at 1:03 PM, Shannon Lee <shannon at scatter.com> wrote:
>> First, due to Wikileaks' nature, I believe that in this case, adding a
>> Wikileaks mirror cannot be seen as anything but a political statement -- a
>> vote in favor of WIkileaks, essentially.
>
> Wikileaks is not a political party in the United States and is not a
> party to any contest for elected office. Like the IRS site clearly
> states, only *partisan* political speech is relevant—and only (TTBOMK)
> when it has to do with US politics.
>
> *Anything* can be interpreted as merely *political* speech - for
> instance, saying that people should have freedom of speech *is
> political speech*, and advocating for it (as NB implicitly does
> through things like 5MoF) is especially so. But it's not *partisan*
> speech; it's not saying which party or politican ought to be elected.
>
> If you still disagree with me, please either
> a) explain why mirroring wikileaks might be partisan speech, or
> b) cite how the IRS prohibits non-partisan political speech.
>
>> Second, this is a charged enough environment that this sort of regulation is
>> likely to be interpreted extremely loosely.

Putting the issues of classified material distribution and people
being Wrong On The Internet aside for the moment, I had to look at 26
USC §501 today for something else today and noticed it said a few
things relevant to this thread.  So, I'm posting this to make sure it
ends up in the historical record.  Disclaimer: I'm not a lawyer, but I
can read law.  Here's what it says:

26 USC §501(c)(3):

(3) Corporations, and any community chest, fund, or foundation,
organized and operated exclusively for religious, charitable,
scientific, testing for public safety, literary, or educational
purposes, or to foster national or international amateur sports
competition (but only if no part of its activities involve the
provision of athletic facilities or equipment), or for the prevention
of cruelty to children or animals, no part of the net earnings of
which inures to the benefit of any private shareholder or individual,
no substantial part of the activities of which is carrying on
propaganda, or otherwise attempting, to influence legislation (except
as otherwise provided in subsection (h)), and which does not
participate in, or intervene in (including the publishing or
distributing of statements), any political campaign on behalf of (or
in opposition to) any candidate for public office.

There's two prohibitions to consider here: intervening in a political
campaign, and influencing legislation.

IRS has internal guidance which points out that political intervention
doesn't have to be for or against a *specific* candidate, and that
distributing statements which affect *incumbents* is also a prohibited
activity:

http://www.irs.gov/pub/irs-wd/9907021.pdf

"The prohibition against participation or intervention in a political
campaign is absolute. Therefore, it is not material that the
intervention is an insubstantial part of an organization's activities
or that other activities would, by themselves, support exemption..."

IRS has two revenue rulings, 78-248 and 80-282, which make it clear
that even implying things in opposition to an incumbent or incumbents
is a good way to get your 501(c)(3) status revoked.  There's a healthy
list of IRS rulings involving religious corporations which had their
tax exemption yanked because they tried to get around the political
campaign prohibition by pretending they were being neutral about
broadcasting selective information about incumbents.  IRS probably has
better things to do than pounce on us using similar logic, but should
they do so the potential consequences and impact to innocent members
implies that those risks must be solemnly considered.

Unlike the issue of political campaign involvement, influencing
legislation is not absolutely prohibited.  It is possible for a
501(c)(3) to involve themselves in influencing legislation without
penalty, given this definition in 29 USC §4911(d)(1): "...the term
“influencing legislation” means—
(A) any attempt to influence any legislation through an attempt to
affect the opinions of the general public or any segment thereof..."

If less than a "substantial" amount of the organization's activity is
involved in influencing legislation, it can choose to subject itself
to the rules of 26 USC §501(h) to do so without negative consequences.
 Determining what "substantial" is can be somewhat complicated, but
the short version is that it's a low threshold and it's too risky for
an organization which is worried about paying rent in March.

There is no question that the wikileaks cables will influence
legislation.  It is also clear that they could be used to interfere
with the political campaigns of incumbent officials.  I offer no
conclusions from these facts, but there they are should you choose to
draw your own.