-- 

From: Chye-Ching Huang 

To: Bowdler, Janis; Somani, Aditi; TACRE 

Cc: Samuel Knowles 

Subject: Audits below $400k, Tax Law Center recommendations, and equity implications 

Date: Wednesday, April 26, 2023 1:42:00 PM 

Attachments: Examining IRS Commissioner Werfel"s remarks on audit rates_04.26.2023.pdf 

** Caution: External email. Pay attention to suspicious links and attachments. Send 

suspicious email to suspect@treasury.gov ** 

Dear Janis, Aditi, and TACRE team, 

I wanted to flag for you this Tax Law Center piece containing our recommendations for how 

the IRS should operationalize the Administration's pledge about audit rates for filers with 

incomes below $400k. As the piece explains, there are significant racial equity implications 

for some of the choices that the IRS must make about how to do so, including how to allocate 

audits below the $400,000 threshold. 

I hope this is helpful, and we are happy to discuss if useful. 

Kind regards, 

Chye-Ching 

Chye-Ching Huang 

Executive Director 

The Tax Law Center at NYU Law 

Website | Mailing list 

Twitter @TaxLawCenterNYU and @dashching 
 

 

 

 

 

 

April 26th, 2023 

Examining IRS Commissioner Werfel’s remarks on audit rates -- and what the IRS 

should do next 

By: Chye-Ching Huang and Kathleen Bryant 

The Inflation Reduction Act (IRA) provides $80 billion to rebuild and improve the tax system 

after more than a decade of deep cuts to the IRS budget. Treasury Secretary Janet Yellen and IRS 

Commissioner Daniel Werfel have pledged that the IRA’s funding stream will “not be used to 

increase the share of small businesses or households below the $400,000 threshold that are 

audited relative to historical levels.” The Administration has understandably made that pledge to 

help assure Americans that the investment in tax enforcement will be focused on “high-income 

and high-wealth individuals, complex partnerships, and large corporations that are not paying the 

taxes they owe.” 

In a hearing on April 19th before the Senate Finance Committee, Commissioner Werfel provided 

additional detail on audit rates for those making less than $400,000 as the IRS puts the funding to 

use. While he indicated that the IRS might eventually bring audit rates for that group toward 

historical levels, he suggested that, as an operational matter and “for the next number of years” 

the IRS is “going to be so focused on increasing capacity for high wealth taxpayers, individuals, 

corporations, and partnerships” that, for tax filers falling below the threshold, there will be “no 

change [...] to the most recent audit rate,” which is for tax year 2018 since that is the last year 

with complete data available. 

Werfel’s remarks indicate that in the near term and as an operational matter, the IRS will 

maintain audit rates on filers with incomes below $400,000 at 2018 levels. Commissioner Werfel 

and Deputy Treasury Secretary Adeyemo describe this as a practical constraint, noting the 

primary immediate enforcement focus on high-income, high-wealth taxpayers, along with the 

fact that “it takes time to train a good auditor.” But audit rates for 2018 tax returns are a bad 

guide for what fair, effective tax enforcement should look like given the effects of IRS 

underfunding and an unprecedented global pandemic. Instead, the IRS should aim to return to 

representative historical levels of audit rates as quickly as possible. This would be entirely 

consistent with the administration’s pledge and its goal of focusing enforcement efforts from the 

new funding on high-income Americans and large, complex business entities. 

Below we explain why this is the case and the steps that the IRS should take next. 

Audit rates for 2018 tax returns were exceptionally low due to a decade of budget cuts and 

a pandemic 

Audit rates in tax year 2018 are abnormally low. The overall audit rate for individual income tax 

returns is almost 30 percent lower than for just the previous year of 2017. In fact, the overall 

audit rate for 2018 is more than 50 percent lower than the average from 2010 to 2017. The very 

low audit rates for 2018 likely reflect the combined effects of years of funding cuts as well as the 

significant effects of the pandemic on IRS operations. 

1 
 

 

 

Funding cuts led to a substantial reduction in audit rates after 2010. Between fiscal years 2010 

and 2021, the IRS’s overall budget was cut by about a fifth and the part of the budget dedicated 

to tax enforcement was cut by about 23%, after adjusting for inflation. Over the same time 

frame, the number of tax enforcement staff declined by about 30%. These resource constraints 

caused the overall audit rate for individual income tax returns to fall from 1.0% in tax year 2010 

to 0.5% in tax year 2017. The overall audit rate fell even further to just 0.3% in tax year 2018. 

Audit rates have fallen most steeply for filers with very high incomes, but they also dropped 

sharply for upper-middle income tax filers. The audit rate on tax filers reporting incomes 

between $100,000 and $500,000 fell from 1.2% in 2010 to 0.4% in 2017, and plummeted to just 

0.2% in 2018. 

Low audit rates in 2018 reflect, at least in part, the cumulative damage of more than a decade of 

IRS budget cuts. However, dramatic changes in audit rates between 2017 and 2018 cannot be 

explained by the effects of IRS funding cuts alone. 

The audit rate for tax year 2018 is also likely “artificially depressed” because of the effects of the 

COVID-19 pandemic, as we have previously noted. Tax returns for 2018 were typically filed in 

2019, and then would have been processed and audited in subsequent years. But the IRS 

suspended virtually all compliance activities between March and July 2020, and even once 

enforcement programs resumed, the agency faced significant backlogs of correspondence and 

staffing shortages that delayed opening new cases. Since the IRS generally has a three-year 

statute of limitations for audits and assessment after a tax return is filed, the suspension of 

compliance activity fell squarely during the audit period for the 2018 tax year. Moreover, 

throughout the pandemic, the IRS had to reshuffle staff and resources to meet other urgent needs, 

including delivering economic impact payments, advance child tax credit payments, and more. 

This may have also reduced audit rates in subsequent tax years, although complete audit data for 

tax years 2019 and beyond are not yet available. 

As a result, 2018 is an outlier year in terms of audit rates and sustaining such low audit rates for 

those with incomes below $400,000 may have several undesirable consequences. Taxes that are 

owed but not paid will not be discovered and recovered. Furthermore, audits encourage 

voluntary compliance among filers more generally, and to the extent that unscrupulous actors – 

including certain paid tax preparers and other would-be tax cheats – start to expect that the 

extremely low audit rates of 2018 are the “new normal,” they may be more willing to cheat and 

play the “audit lottery” by underreporting income to fall below the $400,000 threshold. This risk 

is particularly acute for those filers – often with higher incomes – who, unlike typical wage 

earners, are not subject to substantial third-party reporting that makes it easier for the IRS to 

double check that income is reported correctly without conducting an audit. 

To be fair, the IRS is so depleted after a decade of funding cuts that increasing audit rates on tax 

filers making below $400,000 to representative historical levels would be impossible in the short 

term, and Commissioner Werfel’s comments may, in part, reflect this. The IRS faces serious 

practical limits on how many replacement enforcement staff it can hire in the near-term, 

especially given that the IRS faces other immediate priorities for hiring in other areas like 

taxpayer services, IT modernization, and more. Furthermore, it will take some time to train new 

2 
 

 

 

 

enforcement staff, and any time that existing revenue agents must spend onboarding new hires 

will likely reduce some of their time spent auditing returns and on other compliance activities. 

These types of constraints are reflected in official estimates from the Congressional Budget 

Office, which projected that it would take about three years for staff to “become trained and fully 

productive” and for the IRS to generate “peak return-on-investment” in terms of tax revenue 

collected per dollar of enforcement funding from the IRA. 

However, as an operational matter and even as new hiring is focused on building capacity to 

audit high-income tax filers, it is possible that audit rates would – absent artificial constraints – 

rise above abnormally low 2018 levels as IRS operations normalize in the wake of the pandemic. 

That would still leave audit rates at or below representative historical levels as the 

Administration pledged. 

What the IRS should do now 

Looking ahead, we have several recommendations for the IRS as it operationalizes the pledge to 

not increase audit rates below $400,000 above historical levels: 

1. Set a quick path to an appropriate and more representative historical average. 

The IRS should allow enforcement operations to immediately normalize as the agency recovers 

from the effects of the pandemic. That would likely still leave audit rates well below their 

historical levels, and the IRS should then move to restore audit rates for filers with income below 

$400,000 to levels that better represent historical trends, even as they immediately focus on 

expanding enforcement for those with the highest incomes and for complex business entities. 

In normalizing operations and then returning audit rates to historical levels, the administration 

will likely need to choose a specific benchmark that represents “historical levels.” There are 

several reasonable options but using 2018 as a benchmark is not one of them. For example, the 

IRS could set historical levels based on audit rates from 2010, which is the most recent year 

before its budget began declining in inflation-adjusted terms. Another option is to use a multiyear historical average spanning the 2000s, or potentially going back even further. 

The IRS should also commit to a specific timeline for adopting this more representative 

historical benchmark. The agency has set detailed goals, timelines, and initiatives for many other 

difficult operational challenges in its Strategic Operating Plan (SOP), and should do so with 

respect to these audit rates. In any event, the IRS should not maintain 2018 audit rates any longer 

than is necessary to address immediate limitations around hiring and training. 

Such an approach would: 

• Be consistent with the IRA’s goals to rebuild and improve the IRS after a decade of 

disinvestment. 

• Build trust in IRS stewardship of the $80 billion funding. The IRS should not set goals 

that require “bare minimum” effort to achieve, and nothing in the IRA’s statutory text or 

prior Administration commitments (including Commissioner Werfel’s statements during 

his nomination hearing) require audit rates to be held to artificial lows for any group of 

filers. 

3 
 

 

 

 

 

 

 

 

 

• Further the IRS’s duty to faithfully apply the law and ensure that all filers follow the law. 

The SOP lays out several laudable goals to improve tax compliance across the income 

distribution by ensuring that more filers have access to “front end” assistance with filing 

and guidance that will help them comply with their tax obligations. The SOP also reflects 

that the IRS will concentrate on increasing audit rates and compliance activity for the 

high-income filers and large businesses that contribute the most to the tax gap. 

These are sound decisions, but they are not inconsistent with allowing audit rates for 

filers with incomes below $400,000 to reach levels that are more representative of 

historical trends than 2018. 

It is important to understand that, by the terms of the Administration’s own pledge, the historical 

audit rates for filers below $400,000 are a ceiling. If the IRS can show through the research and 

evaluation efforts promised in the SOP that maintaining low audit rates on filers earning less 

than $400,000 is the most effective and efficient way to reduce the tax gap because enforcement 

resources are better used elsewhere, it will remain free to continue doing so. 

But the IRS should not prematurely and unnecessarily constrain itself now to a 2018 audit rate 

ceiling for longer than is needed, because doing so could lead to inefficient use of the $80 billion 

and a failure to faithfully ensure tax compliance across the income spectrum. 

2. Change how audits are distributed under the $400,000 threshold to advance equity 

and shrink the tax gap. 

Regardless of how the IRS chooses to approach setting an overall audit rate for those earning less 

than $400,000, it should take immediate steps to examine and rebalance audit rates within the 

income groups falling below that threshold. The IRS should do so in ways that further its goals 

of both addressing the tax gap efficiently and taking swift action to address the stark racial 

disparities in audit rates revealed by recent work from academic and Treasury researchers. As we 

have previously explained, a recent working paper found that Black tax filers are 2.9 to 4.7 times 

more likely to be selected for audits than non-Black tax filers and provided some possible 

explanations for these disparities (which exist even after controlling for factors like income and 

household composition). 

For instance, the IRS should consider rebalancing the following: 

• Audits rates on tax filers claiming the Earned Income Tax Credit (EITC) versus those 

who do not. Currently, EITC claimants are audited at about four times the rate of certain 

upper-middle-income tax filers, even though the latter group is responsible for a higher 

share of unpaid taxes. In tax year 2018, low-income tax filers claiming the EITC were 

audited at a rate of 0.9%, while tax filers with incomes between $100,000 and $500,000 

were audited at a rate of 0.2%. The IRS has estimated that EITC filers account for 10% of 

the individual income tax under-reporting gap. There is no official estimate of the tax gap 

share for filers earning between $100,000 and $500,000, but research finds that a roughly 

comparable group of tax filers (those falling into the 80th to 98th percentiles of the 

income distribution) accounts for about 44% of that gap (when filers are ranked by their 

“true” incomes rather than reported incomes). 

4 
 

 

 

There was not always such a stark disparity in audit rates between EITC filers and uppermiddle income tax filers. In tax year 2010, the audit rate on EITC filers was 1.8% and the 

audit rate on filers earning between $100,000 and $500,000 was 1.2%. As audit rates 

have fallen across the board over the last decade, audits on EITC filers have fallen by 

much less than audits on higher-income filers, largely because audits of EITC claims are 

generally cheaper and faster for the IRS to conduct. The IRS should not continue to 

subject EITC filers to harsher scrutiny than upper-middle income tax filers that are 

responsible for a substantially larger share of tax non-compliance. 

Furthermore, the working paper by Treasury and academic experts found that disparate 

audit rates between EITC and non-EITC filers are responsible for about a fifth of the 

overall audit rate disparity between Black and non-Black filers, so raising audit rates on 

non-EITC returns relative to EITC returns is likely one necessary (though not sufficient) 

step for addressing racial audit disparities. 

• Audit rates on tax filers reporting business income versus those without it. Within the 

population of tax filers making less than $400,000, the IRS should reallocate tax 

enforcement resources to the higher-income tax filers and business entities that contribute 

substantially to the tax gap. Pass-through business income and other types of income 

earned by more affluent tax filers are often not subject to significant third-party 

information reporting requirements, and income without information reporting tends to 

have higher rates of false or erroneous reporting. 

The recent working paper by Treasury and academic researchers explained that returns 

with business income require more expertise and cost more for the IRS to conduct than 

returns that do not report business income. For example, audits on EITC claimants 

reporting business income cost nearly $400 per audit to complete while audits on EITC 

claimants without business income only cost about $30 per audit. The paper suggests that 

given the potentially higher dollar amounts of non-compliance among returns with 

business income, increasing audits on such returns may both be efficient and reduce 

racial audit disparities (because non-Black EITC claimants are more likely to have 

substantial business income on their returns than Black EITC claimants). 

Shifting focus towards partnerships and S-corporations for filers across the income 

spectrum is especially important because these entities are audited at rates that are now 

dramatically out of step with their contributions to the tax gap. Pass-through businesses 

currently account for about half of individual income tax under-reporting, but in tax year 

2018, only 0.1% of partnerships and S-corporations were selected for audits. While the 

IRS should rightly focus tax enforcement resources and attention on the highest-income 

partnership and S-corporation owners, it should also consider addressing audits on such 

businesses across the income distribution. 

In a previous report, we set out steps that the IRS should take to examine its audit selection 

processes across the income distribution to address racial audit disparities. For example, 

targeting large dollar amounts of under-reported tax when selecting tax filers for audits (instead 

of targeting the mere presence of any under-reported tax) may be able to improve the efficiency 

5 
 

 

 

 

 

 

of enforcement activity and reduce racial audit disparities. Such steps would help the 

Administration to deliver on President Biden’s recent Executive Order (released on February 16, 

2023) that directs federal agencies to “prevent and remedy discrimination, including by 

protecting the public from algorithmic discrimination” and with implementation of the Executive 

Order (released on December 13, 2021) requiring federal agencies to “transform federal 

customer experience and service delivery to rebuild trust in government.” 

3. Follow through on the Administration’s commitments to implement the pledge 

based on actual income. 

The Treasury Department has suggested repeatedly that the pledge will only apply to filers with 

less than $400,000 in actual income, or income that has been adjusted for under-reporting. 

Coming out of the hearing, there has been some confusion around whether the Treasury 

Department will follow through on the approach of using actual income. That is because 

Commissioner Werfel referred to “total positive income” in the hearing, which is based on 

reported income. It is possible he did so only because audit rates are currently reported using that 

approach, and that he did not intend to imply that the IRS will use this measure of income going 

forward. In any case, it is critical that the IRS follow through on implementing the pledge using 

actual income, rather than reported income. 

Using true or real income to implement the pledge will mean that the IRS will be able to ensure 

that tax cheats falsely reporting they earned less than $400,000 on their tax returns, even though 

their actual incomes exceeded that threshold, are not protected from increased audit risk and 

from their existing legal obligations to pay tax. Previous research indicates that many highincome filers substantially underreport their incomes on their tax returns. When tax filers are 

ranked based on their reported income, filers in the top 1% of the income distribution appear to 

be responsible for only about 6% of income tax under-reporting. But when they are ranked based 

on their true incomes, filers in the highest-income 1% account for about 28% of income tax 

under-reporting. 

Of course, operationalizing this definition of income is a challenge because the IRS only knows 

the real incomes of tax filers selected for audits after those audits have been closed (which, as 

described above, can take several years given the IRS’s statute of limitations). But the IRS 

should take on this analytical challenge to make the pledge meaningful and consistent with the 

agency’s obligations under the IRA and the tax code. 

For instance, the IRS should be able to estimate, based on its audit selection algorithms and 

historical audit results, how many filers that it chooses to audit with reported income below 

$400,000 will in fact turn out to have true income above that level. Those filers – including 

deliberate tax cheats that are underreporting their true incomes to falsely state on their tax returns 

that they earned less than $400,000 – should not be counted towards the audit rate ceiling for 

those falling below that threshold. Eventually, as early audits for any tax year are closed and 

audit results come in, the IRS may also be able to adjust how many further filers it selects for 

audit – and which types of filers to prioritize – based on those results (taking into account how 

audits closed earlier in the statute of limitations period may differ systematically from those 

closed later). 

6 
 

The IRS could aim to refine these analyses over time. As the Tax Policy Center has noted, the 

IRS can invest in improving its data analytics and evaluation of the effectiveness of different 

compliance activities. We have previously explained why IRS investment in reviewing and 

evaluating audit selection processes should be a priority, and the SOP commits to improving IRS 

research and evaluation capacity. 

7 
 

From: Jimmy Pan (Charter) 

To: TACRE 

Subject: TACRE Meeting Recordings 

Date: Tuesday, April 18, 2023 2:29:55 PM 

** Caution: External email. Pay attention to suspicious links and attachments. Send 

suspicious email to suspect@treasury.gov ** 

Good afternoon, 

Are there plans to make recordings of the TACRE meetings available? 

Also, we’ve just launched an advisory board on implementation of racial justice ballot measures here 

in NYC, and we are honored to count Michael Nutter and Michael McAfee among the members. 

Best, 

Jimmy 

Jimmy Pan (pronouns: he/him/his) 

Policy Director & Special Counsel, (former) Racial Justice Commission 

C: 347-374-0729 | nyc.gov/racialjustice 
 

 

 

 

 

 

 

 

 

March 8, 2023 

Mr. Michael Nutter Ms. Felicia Wong 

Chair Vice-Chair 

Treasury Advisory Committee on Racial Equity Treasury Advisory Committee on Racial Equity 

U.S. Department of the Treasury U.S. Department of the Treasury 

Dear Chairman Nutter and Vice-Chair Wong, 

Congratulations on your appointments to the inaugural Treasury Advisory Committee on Racial Equity 

(TACRE). This is a first-of-its-kind committee, representing a historic opportunity to center racial equity 

in our nation’s economic agenda. As you consider the advice and recommendations the committee will 

provide to Secretary Janet Yellen and Deputy Secretary Wally Adeyemo on efforts to advance racial 

equity in the economy and address acute disparities for communities of color, we urge you to support 

“Baby Bonds,” a bold vision for racial and economic justice. This policy would provide every child in 

America with unprecedented opportunity for financial security. 

The last three years of the COVID-19 pandemic have only further exposed vast economic inequities 

along racial lines. Today, the median white family has eight times the wealth held by Black families, 

and the 400 wealthiest Americans hold more wealth than all Black families in the U.S. combined.1 To 

be clear, these disparities are the result of intentional policymaking. For generations, federal, state, and 

local policy stripped wealth and opportunity from Black and Brown people while embedding bias in 

our tax code to reward the affluent families over working class and poor people. We have an 

opportunity to ensure an economic recovery that addresses the injustices of the past and present and 

moves us towards an economic future that leaves no family behind. 

The American Opportunity Accounts Act would address these wrongs by establishing a national “Baby 

Bonds” program, providing a federally-funded savings account to every American child. This proposal, 

crafted in partnership with leading academics, researchers, and policymakers, represents a once-in-ageneration opportunity to close the racial wealth gap and unleash economic opportunity for every 

American. 

The American Opportunity Accounts Act would represent the most ambitious federal effort to directly 

1 Members Of The Forbes 400 Hold More Wealth Than All U.S. Black Families Combined, Study Finds, Forbes (2019, 

January 14) https://www.forbes.com/sites/noahkirsch/2019/01/14/members-of-forbes-400-hold-more-wealth-than-all-usblack-families-combined-study-finds/?sh=192b31b46771 
 

 

 

 

 

 

 

 

_____________________________ ______________________________ 

combat wealth inequality. At birth, every child would be given an “American Opportunity Account”

seeded with $1,000. Every year thereafter, children would receive between a $0 and $2,000 deposit, 

depending on family income, with funds sitting in a low-risk account managed by the Treasury 

Department. Beginning at age 18, account holders would be able to access and utilize the funds for 

wealth-building activities including homeownership, higher and continuing education, and 

entrepreneurship—the kind of investments that change life trajectories and break generational cycles of 

poverty. 

The impact would be transformative: at a cost of approximately $60 billion annually, less than 10 

percent of what we currently spend to subsidize wealth-building through the tax code, we can give 

every American a stake in our economy and agency over their future. We can also begin to address 

persistent inequities: recent studies by Columbia University2 and Morningstar3 have found that Baby 

Bonds would substantially close the racial wealth gap. 

In several states and localities, including Connecticut, District of Columbia, California, and New York, 

legislative proposals inspired by Baby Bonds have passed or are pending.4 While some details vary, 

each proposal ensures that money would go into an account and gain returns for 18 years before an 

individual can access the funds for a specified purchase, such as college tuition or a down payment on a 

home. These proposals by cities and states highlight the growing momentum and support for this 

legislative proposal across the country, paving the way for eventual federal passage. 

As TACRE begins its tenure, we urge you to study the merits of this legislative proposal and consider 

including it in your reports to the Department of Treasury. When it comes to racial justice, we cannot 

afford to wait. Baby Bonds is exactly the type of bold, comprehensive program necessary to advance 

racial equity in the economy and address acute disparities for communities of color. 

Sincerely, 

Cory A. Booker Ayanna Pressley 

United States Senator United States Representative 

2 Universal Baby Bonds Reduce Black- White Wealth Inequality, Progressively Raise Net Worth of all Young Adults, The 

Review of Black Political Economy (2019, November 6) https://doi.org/10.1177/0034644619885321 3 Baby Bonds: Income-Based Program Designs Show Promise for Closing the Racial Wealth Gap, Morningstar, (September 

2020) https://www.morningstar.com/content/dam/marketing/shared/pdfs/Research/wp_Policy_Baby_Bonds_final.pdf?utm 

_source=eloqua&utm_medium=email&utm_campaign=&utm_content=25079 

4 Baby bonds: States plan their own 'trampoline into the middle class', Yahoo Finance (2022, February 4) 

https://news.yahoo.com/baby-bonds-states-enact-their-own-trampoline-into-the-middle-class-153138941.html 
From: Jo Lowrey 

To: TACRE 

Subject: Baby bonds 

Date: Wednesday, April 5, 2023 9:19:18 PM 

** Caution: External email. Pay attention to suspicious links and attachments. Send 

suspicious email to suspect@treasury.gov ** 

Dear Ms. Bowdle, 

Please support the Baby Bonds legislation. 

Best Regards, 

Josephine Lowrey 
From: Jo Lowrey 

To: TACRE 

Subject: Baby Bonds 

Date: Monday, April 24, 2023 2:18:48 PM 

** Caution: External email. Pay attention to suspicious links and attachments. Send 

suspicious email to suspect@treasury.gov ** 

Please support the Baby Bonds legislation. 

Thank you, 

Joséphine Lowrey 

26 Marvin Street 

Monpelier, VT 05602 
 

From: Jones, Darryll K. 

To: TACRE; db609@georgetown.edu 

Subject: Tax Exempt Hate Groups 

Date: Tuesday, May 9, 2023 12:08:01 PM 

Attachments: StochasticTerrorismandTaxExemptionfinalfirstdraft.docx 

** Caution: External email. Pay attention to suspicious links and attachments. Send 

suspicious email to suspect@treasury.gov ** 

Dear Counselor Bowdler and Member Brown: 

I write to suggest an important topic of discussion for the Treasury Advisory Committee on Racial 

Equity. As you are no doubt aware, a gunman killed 8 people in a Texas mall last weekend. Today, 

the NY Times reports that the gunman maintained a white supremacist social media presence. 

Without having yet seen the online pages the Times reports about, I can almost certainly predict the 

gunman will have referenced “educational” materials distributed by a tax exempt hate group 

somewhere in his online rants. He will have been influenced to hate by educational organizations 

subsidized by tax exemption. Scientists describe what those groups “teach” as “stochastic 

terrorism.” The same was true when a gunman attended Bible study in 2015 at Mother Emanuel 

Church and killed 9 African American worshippers. That gunman’s manifesto relied on “educational” 

materials distributed by a tax exempt organization. Likewise, the 2017 killing of Heather Heyer in 

Charlottesville Virginia was precipitated and facilitated by tax exempt organizations advocating that 

Jews seek world domination via the Replacement Theory, and shouting “Jews will not replace us.” 

The Southern Poverty Law Center reports there are about 60 tax exempt hate groups. CBS stated 

there were approximately 90 tax exempt hate groups. Nobody disputes that the tax code should not 

subsidize stochastic terrorism. Some assert, though, the government may not deny tax exemption 

because to do so would be to violate the groups’ right to free speech. 

I propose that the Committee study the issue. I have obsessed about it, quite frankly, for about 6 

years and my article on the topic will be published this fall in the New Mexico Law Review. I am 

attaching a working draft in hopes your Committee might take an interest. You can download an 

earlier version from SSRN here. I become more passionate about the topic every time another mass 

shooting happens. I know almost instinctively, having immersed myself for so long, whether the 

shooter had a racial, gender, orientation, or religious animus and whether that animus was stoked 

by an tax exempt “educational” organization. I don’t make the assertion until I see the proof, but 

increasingly the proof is as inevitable as the next mass shooting. The Texas shooter a few days ago 

was stoked by at least one tax exempt hate group, masquerading as “educational.” 

I understand, as well, the First Amendment implications. People have a right to hate speech, and 

even to associate with haters; Treasury should be reluctant to tread on First Amendment rights, but 

then, people are dying at the hands of “students” taught by tax exempt “educational” organizations. 

Regardless, the right to hate speech does not require the government subsidize those groups 
 

through tax exemption, as a few well known constitutional scholars have asserted. Justice Stevens 

and Scalia, from opposite corners, have both said so in passing dicta. 

Did I mention that I’ve obsessed over this topic for years? I would suggest a subcommittee address 

this topic, meet, and public hearings with tax and constitutional law specialists. The late civil rights 

warrior John Lewis held hearings on this very topic in 2019. You can watch the hearings from my 

blog post here. Though I applaud the initiative, I was disappointed in the outcome. The hearing was 

unproductive as a legal matter because the witnesses hardly put forth an effort to find the legal basis 

for denying tax exemption to hate groups. They were lazy and sanguine; staff who organized the 

hearings did the issue a disservice by allowing the unchallenged assertion that government must 

subsidize hate groups. Staff should have sought more experts, though I would not have been of use 

at that time. It was only after I watched the hearing that I evolved into the obsessed creature that I 

am now about the issue. There is no doubt that government must tolerate (so far) hate speech, but 

it most certainly need not subsidize it and indeed is constitutionally prohibited from doing so (I am 

now working on the secondary issue of standing and will publish on that next spring in the Pittsburgh 

Tax Review). I prove my assertions in the attached article. 

Your committee could revise the issue and, having found a legal basis, advise Treasury accordingly. I 

would love to be a worker bee in that effort and though I am biased, I would be willing to let the 

chips fall. If the truth is that government must subsidize stochastic terrorists than let the truth 

prevail. I challenge someone to prove that to me. I am including my friend Dorothy Brown in this 

email because she might confirm that while I might be “different,” (let’s say), this is not a phishing 

email. I really really really hope to hear from you. 

Haver a great day, both of you! 

Darryll 

Darryll K. Jones 

Professor of Law 

Florida A&M University College of Law 

201 Beggs Avenue 

Orlando, Florida 32825 

Office: 407.254.3236 
 

 

STOCHASTIC TERRORISM, SPEECH INCANTATIONS 

AND FEDERAL TAX EXEMPTION 

Darryll K. Jones 

Stochastic terrorists demonize and dehumanize groups of people through propaganda to incite “lone 

wolf” violence against those groups.1 

 Their demonization and dehumanization is explicit, but their 

solicitation of murder is implicit and sufficiently ambiguous that most listeners will not perceive their call. 

But a few will perceive, fewer still will act.

2 

 The resulting murder, legally attributable to the killer but not 

1 Molly Amman and J. Reid Meloy, Stochastic Terrorism, 15 PERSPECTIVES ON TERRORISM 2 (2021); G2geek, Stochastic 

Terrorism: Triggering the Shooters, https://www.dailykos.com/stories/2011/1/10/934890/- (Jan 10, 2011 · 8:37 

p.m.). 

1. A leader or organization uses rhetoric in the mass media against a group of people. 

2. This rhetoric, while hostile or hateful, doesn’t explicitly tell someone to carry out an act of 

violence against that group, but a person, feeling threatened, is motivated to do so as a result. 

3. That individual act of political violence can’t be predicted as such, but that violence will happen is 

much more probable thanks to the rhetoric. 

4. This rhetoric is thus called stochastic terrorism because of the way it incites random violence. 

What is Stochastic Terrorism and Why it is it trending? https://www.dictionary.com/e/what-is-stochasticterrorism/ (Aug. 8, 2019). 

Public speech that may incite violence, even without that specific intent, has been given a name: 

stochastic terrorism, for a pattern that can’t be predicted precisely but can be analyzed 

statistically. It is the demonization of groups through mass media and other propaganda that can 

result in a violent act because listeners interpret it as promoting targeted violence — terrorism. 

And the language is vague enough that it leaves room for plausible deniability and outraged, 

how-could-you-say-that attacks on critics of the rhetoric. 

Juliette Kayamm, There are no lone wolves, WASH. POST, 

https://www.washingtonpost.com/opinions/2019/08/04/there-are-no-lone-wolves/ (Apr. 4, 2019 at 1:48 pm). 2 The novelist Greg Olear describes stochastic terrorism with appropriately dystopian darkness: 

Violent rhetoric is pumped into the discourse by cynical politicians, conservative influencers, 

retrograde church leaders, and far-right provocateurs. The ugly, mendacious narratives saturate 

the airwaves, the social networks, the fringe channels. Over and over and over, the hate speech is 

repeated. And someone, somewhere, snaps. Enough is enough, he decides. (It’s almost always a 

“he.”) He picks up his gun—there are always plenty of guns lying around—and takes action. 

Greg Olear, Death Groomers, PREVAIL, Nov. 29, 2022, https://gregolear.substack.com/p/death-groomers. Of course, 

the phrase, “lone wolf,” is precisely the characterization the phrase, “stochastic terrorism,” disputes. Implicit in the 

latter is that the perpetrator is not acting alone, but in concert with those using their platform to dehumanize and 

demonize. “The ‘lone wolf’ metaphor is based on the image of a wolf alone in the wild. But this is incorrect, as my 

studies on terrorists reveal. Wolves never hunt alone — in nature or in terrorism.” Gabriel Weimann, There’s no 

such thing as a lone wolf in cyberspace, REUTERS, June 25, 2015, 

https://www.reuters.com/article/idIN14450041820150625. 

1 
 

 

the stochastic terrorist, is random and unpredictable by time, place, or manner.3 Researchers theorize 

that stochastic terrorism is nevertheless capable of statistical analysis, the results of which show positive 

correlation between stochastic speech and violence;

4 murders increase even if it cannot be determined 

when, where or how a particular murder will occur.

5 

 Hate groups are definable by stochastic terrorism. 

It is their raison d’etre. 

Stochastic terrorism6 is protected speech so far; it does not constitute fighting words, incite imminent 

lawlessness, or provoke a stampede to the exits. The law is not yet enlightened. I accept but do not rely 

on the inevitability of murder in my analysis. Whether stochastic terrorists are successful is not essential 

to my conclusion. Nevertheless, we should be explicit about what hate groups seek and the murders they 

incite before discussing their claim to tax exemption under IRC 501(c)(3).

7 

 It diminishes the analysis not 

to be explicit. I do not allow for any other possibility than that hate groups seek the death of those they 

3 Indeed, scientist have shown that stochastic actors find “randomization [of otherwise predictable outcomes] 

desirable since it reduces responsibility and regret after the state of uncertainty [regarding when and where 

violence will occur, for example, not whether] is resolved.” Pedram Heydari, Regret, Responsibility, and 

Randomization: A Theory of Stochastic Choice, (January 30, 2023), 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4343566. 4 Philosophical and Public Security Law Implications of ‘Stochastic Terrorism,’ Max Planck Institute for the Study of 

Crime, Security, and Law, https://csl.mpg.de/en/projects/philosophical-and-public-security-law-implications-ofstochastic-terrorism?c=204475 5 

In recent years, a term has begun to circulate to capture this phenomenon — “stochastic 

terrorism,” in which mass communications, including social media, inspire random acts of 

violence that according to one description are statistically predictable but individually 

unpredictable. In other words, every act and actor is different, and no one knows by whom or 

where an act will happen — but it’s a good bet that something will. 

Eyal Press, This Week's Mail Bombs Are No Surprise, N.Y. Times (Oct. 25, 

2018), https://www.nytimes.com/2018/10/25/opinion/terrorism-bombs-democrats-deniro-biden-soros.html 6 For an excellent analysis of stochastic terrorism as a linguistic and psychological construct, see Molly Amman and 

J. Reid Meloy, Stochastic Terrorism: A Linguistic and Psychological Analysis, 15 Perspectives on Terrorism, 

https://www.universiteitleiden.nl/binaries/content/assets/customsites/perspectives-on-terrorism/2021/issue5/amman-and-meloy.pdf. 7 IRC 501(c)(3) exempts from corporate tax: 

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. 

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hate. they would neither settle for subjugation 

Church (known locally as

For 45 minutes, he read and discussed the Bible with 12 African American church 

As the participants bowed their heads for closing prayer, Roof brandished a Glock 

45 caliber pistol he carried in a fanny pack and began shooting.12 

8 Stochastic terrorists are genocidal;9 or forced 

expatriation, nor concede reparations even if those were acceptable alternatives. I disprove the argument 

that because their speech is protected, stochastic terrorists are entitled, as an exercise of their free 

speech, to tax exemption under IRC 501(c)(3). The opposite is true. Government is required to deny tax 

exemption to stochastic terrorists. 

Prologue 

At 8:16 pm on June 17, 2015, 21-year-old Dylann Roof entered the Emanuel African 

Methodist Episcopal “Mother Emanuel”) in Charleston, South 

Carolina.10 

members.11 

The pistol held 11 of the 88 

hollow point bullets Roof had purchased in preparation.

13 The worshippers tried to dissuade 

8 Stochastic terrorism is not just associated with hate groups. Although the term is of recent vintage, it has been 

used to explain murders committed by anti-abortionists during the 1990s. Eyal Press, This Week's Mail Bombs Are 

No Surprise, N.Y. Times (Oct. 25, 2018), https://www.nytimes.com/2018/10/25/opinion/terrorism-bombsdemocrats-deniro-biden-soros.html (discussing the role of stochastic terrorism in the murder of a doctor who 

provided abortion services). 

9 “Facebook's inability to police hate speech from Myanmar military officials is likely a primary inciting factor in the 

Myanmar genocide against the country's Muslim minority Rohingya. This included false stories of rape perpetrated 

by Muslim men against Buddhist women, a common propaganda tactic to demonize minorities and justify 

genocide. The social media campaign against the Rohingya should bring to mind similar radio campaigns against 

Tutsis in the lead up to the Rwandan genocide. Andrew Moshirnia, Countering Pernicious Images: Memetic Visual 

Propaganda and the 2018 Elections, 50 SETON HALL L. REV. 79, 96 (2019) 10 United States of America v. Dylann Storm Roof, 10 F.4th 314, 332 (4th Cir. 2021). 11 Roof actively participated in the discussion, at times disagreeing with others who commented on Biblical 

scripture. Nick Corasaniti, Richard Perez-Pena and Lizette Alvarez, Church Massacre Suspect Held as Charleston 

Grieves, N.Y. TIMES, June 18, 2015, https://www.nytimes.com/2015/06/19/us/charleston-church-shooting.html. 12 Kevin Sack and Alan Blinder, Heart-Rending Testimony as Dylann Roof Trial Opens, N.Y. TIMES, DEC. 7, 2016, 

HTTPS://WWW.NYTIMES.COM/2016/12/07/US/DYLANN-ROOF-TRIAL.HTML. Although described as a “fanny pack” in the 

popular media, the container was a 5.11 Tactical Pouch, often used by police and the military. See Bill of 

Particulars, United States of America v. Dylann Storm Roof, No. 2:15-cr-00472-RMG, 2016 WL 4011126 (D. S.C. July 

25, 2016). 13 Roof “had loaded eight clips of hollow-point ammunition for his Glock .45 semiautomatic handgun because, 

[Assistant U.S. Attorney] Richardson implied, he wanted to have eighty-eight bullets; the number is whitenationalist code for “Heil Hitler” [because “H” is the 8th letter in the English alphabet]. Jelani Cobb, Inside the Trial 

of Dylann Roof, THE NEW YORKER, Feb. 6, 2017, HTTPS://WWW.NEWYORKER.COM/MAGAZINE/2017/02/06/INSIDE-THE-TRIALOF-DYLANN-ROOF. 

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him,

14 but Roof declared that he “had to do it. You rape our women, and you are taking over our 

country. And you have to go.”15 Roof shouted racial slurs as he continued firing.16 “Y’all want 

something to pray about? I’ll give you something to pray about!”17 Over the next six minutes, 

Roof reloaded his pistol five times, ultimately killing 9 church members.18 At his federal trial, a 

forensic pathologist testified that Roof shot the victims at least 60 times altogether;

19 he shot the 

oldest victim, 87-year-old Susie Jackson, 11 times – emptying an entire magazine of bullets into 

her body.

20 He then told another member, 72-year-old Polly Shepard – lying in the fetal position, 

still praying aloud – to “shut up,” and that he would spare her life because he wanted her to “tell 

the story.”21 He put the gun to his head and pulled the trigger.

22 But there were no more bullets 

so Roof survived.

23 He left the church and police apprehended him the next morning as he was 

driving to Nashville, Tennessee.24 

14 Sari Horwitz, Chico Harlan, Peter Holley and William Wan, What we know so far about Charleston church 

shooting suspect Dylann Roof, WASH. POST, June 20, 2015, https://www.washingtonpost.com/news/postnation/wp/2015/06/20/what-we-know-so-far-about-charleston-church-shooting-suspect-dylann-roof/. 15 Id. 16 Kurt Braddock, WEAPONIZED WORDS 35 (Cambridge Univ. Press 2020) 17 Sari Horwitz, Chico Harlan, Peter Holley and William Wan, supra note 12. 18 Id. 19 Alan Blinder and Kevin Sack, Dylann Roof Found Guilty in Charleston Church Massacre, N.Y. TIMES, Dec. 15, 2016, 

https://www.nytimes.com/2016/12/15/us/dylann-roof-trial.html. 20 Dustin Waters and Kevin Sullivan, Dylann Roof guilty on 33 counts of federal hate crimes for Charleston church 

shootings, WASH. POST, Dec. 15, 2016, https://www.washingtonpost.com/national/dylann-roof-guilty-on-33-countsof-federal-hate-crimes-for-charleston-church-shooting/2016/12/15/0bfad9e4-c2ea-11e6-9578-

0054287507db_story.html. 21 Rachel Kaadzi Ghansah, A Most American Terrorist: The Making of Dylann Roof, GQ, Aug. 21, 2017, 

https://www.gq.com/story/dylann-roof-making-of-an-american-terrorist. 22 Timothy M. Phelps, Dylann Roof tried to kill himself during attack, victim’s son says, L.A. TIMES, June 20, 2015, 

https://www.latimes.com/nation/nationnow/la-na-dylann-roof-suicide-attempt-20150620-story.html. 23 Id. 24 “At the time of his arrest, Defendant was using the GPS device to navigate to Nashville, Tennessee.” Bill of 

Particulars, United States of America v. Dylann Storm Roof, No. 2:15-cr-00472-RMG, 2016 WL 4011126 (D. S.C. July 

25, 2016). 

4 
 

 

 

 

 

 

Days later, investigators found a website registered under Roof’s name.25 The website 

contained Roof’s “manifesto.”26 The manifesto relates Roof’s discovery of a web page owned 

and published by the Council of Conservative Citizens (CCC), an organization exempt from federal 

taxation under IRC 501(c)(4).27 Roof describes his outrage that white people were, according to 

statements made on the CCC website, increasingly the victims of violent crimes at the hands of 

African Americans. “There were pages upon pages of these brutal black on White murders. I was 

in disbelief. At this moment I realized that something was very wrong.”28 The “brutal black on 

White murders” Roof referred to were detailed in a pseudo-scientific report prepared by another 

25 “Defendant also used the internet to describe his motivation for his offenses. Defendant posted a manifesto 

online, via a web site that was hosted by a Russian webhost company.” Id. at 2. 26 Id. What purports to be Roof’s manifesto can be found via the Internet Archive (“Wayback Machine”) at 

https://web.archive.org/web/20150623162250/http://lastrhodesian.com/data/documents/rtf88.txt. (hereinafter 

“Roof Manifesto”). An easier-read version can be found at http://media.thestate.com/static/roofmanifesto.pdf. 27 IRC 501(c)(4). I.R.S. Publication 78, 

https://apps.irs.gov/app/eos/detailsPage?ein=363354434&name=COUNCIL%20OF%20CONSERVATIVE%20CITIZEN 

S%20INC&city=Blackwell&state=MO&countryAbbr=US&dba=&type=EPOSTCARD,%20COPYOFRETURNS&orgTags=E 

POSTCARD&orgTags=COPYOFRETURNS. 28 Roof Manifesto, http://media.thestate.com/static/roofmanifesto.pdf. 

5 
 

 

 

501(c)(3) organization known as the New Century Foundation.29 Roof embarked on his rampage 

after reading a CCC webpage based on that report.

30 

The Council of Conservative Citizens (CCC) was founded in 1985 by former members of 

the White Citizens Council (WCC),

31 a federally tax-exempt organization founded by white 

29 Alex Kotch, Nation’s Biggest Charity Is Funding Influential White Nationalist Group, SLUDGE, 

https://readsludge.com/2019/11/22/nations-biggest-charity-is-funding-influential-white-nationalist-group/. 

But it wasn’t the Council of Conservative Citizens that birthed the black-on-white crime myth. It 

was a nonprofit called the New Century Foundation, a hate group founded in 1990, along with its 

American Renaissance magazine, by the prominent white nationalist Jared Taylor. On the pages 

of his magazine and those of the conservative National Review, Taylor laid out his false 

argument: “The United States has neither a unique ‘culture of violence’ nor inadequate gun laws. 

It has a high rate of violent crime because it has a large number of violent black criminals.” 

Other white nationalist groups pounced at Taylor’s racist propaganda, including the Council of 

Conservative Citizens, which has had a long and collaborative relationship with Taylor and his 

organization. 

Id. The Sludge article goes on to report that the New Century Foundation received substantial funding from a taxexempt Donor Advised Fund (DAF), contributions to which are deductible: 

Soon after the Roof massacre, the largest charitable nonprofit in the United States began funding 

the New Century Foundation, Sludge has discovered. Fidelity Investments Charitable Gift Fund, 

a donor-advised fund sponsor and the philanthropic arm of financial giant Fidelity Investments, 

gave increasing amounts to the New Century Foundation from the 2016-18 fiscal years. In 

FY2016 (July 2015 through June 2016), it gave $13,000. In FY2017, $31,000. In FY2018, its giving 

rose to $56,350. In total, it gave over $100,000 to the New Century Foundation. 

Id. See New Century Foundation, THE COLOR OF CRIME (1999). For a report exposing the myths espoused by the New 

Century Foundation and CCC regarding black on white crime see Southern Poverty Law Center, The Biggest Lie in 

the White Supremacist Propaganda Playbook: Unraveling the Truth About ‘Black-on-White Crime' 

https://www.splcenter.org/20180614/biggest-lie-white-supremacist-propaganda-playbook-unraveling-truthabout-%E2%80%98black-white-crime#4. 30 Roof Manifesto supra note 24. Alex Kotch, Nation’s Biggest Charity Is Funding Influential White Nationalist 

Group, Sludge, https://readsludge.com/2019/11/22/nations-biggest-charity-is-funding-influential-whitenationalist-group/. 31 Josh Sanburn, Inside the White Supremacist Group that Influenced Charleston Shooting Suspect, 

TIME, June 22, 2015, https://time.com/3930993/dylann-roof-council-of-conservative-citizens-charleston/. (“For 

years, CCC was one of the most prominent white supremacist organizations in the U.S. Today, however, the group 

exists primarily online. CCC started in the 1950s in Mississippi as the Citizens’ Councils of America (also known as 

White Citizens’ Councils), which formed to fight against the integration of public schools following the Brown v. 

Board of Education ruling.”). The White Citizens Council formed on July 11, 1954, almost two months after the 

Supreme Court issued its opinion in Brown v. Board of Education, 347 U.S. 483 (1954). Association of Citizen’s 

Councils of Mississippi, 4th Annual Report July 1958. 

https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1006&context=citizens_pamph at 1. (“The fourth 

anniversary of the birth of your Citizens’ Council movement was quietly observed on July 11, 1958.”). 

6 
 

 

 

 

 

Mississippians in response to the Supreme Court’s opinion in Brown v. Board of Education.

32 The 

WCC is sometimes described as a refined version of the Ku Klux Klan,

33 the most famous hate 

group in American history. The WCC reportedly disdained outright violence in favor of economic 

oppression and disenfranchisement of African Americans. Nevertheless, WCC publications 

attributed all manner of rape, murder, and other violence to African American men.

34 Before the 

32 347 U.S 483 (1945) (declaring segregation in public education unconstitutional). Prior to the enactment of IRC 

508 in 1969, organizations claiming tax exemption were not required to apply for official recognition from the 

government. David Brennen, Darryll K. Jones, Beverly I. Moran, and Steven J. Willis, THE TAX LAW OF CHARITIES AND 

OTHER EXEMPT ORGANIZATIONS 253 (4TH ED. 2021). The White Citizens Council claimed tax exemption since at least 

November 15, 1956: 

The [White Citizens Council] Education Fund was incorporated November 15, 1956. The reason 

for the Educational Fund was that we were not sure that contributions to the Citizen’s Council 

were tax exempt. We believe that since the Educational Fund of the NAACP is tax exempt, the 

Educational Fund of the Citizens’ Council is tax exempt. So far the exemption has not gone 

through, but we have had no kick backs on former deductions. We believe that the Internal 

Revenue department must declare it tax exempt. We wanted a fund so those people who can 

contribute in large amounts could get tax exemptions, as this means a great deal to many 

people. We are very careful how we handle the money in the Educational Fund, and there is 

simply no way for the government to declare it other than tax exempt. 

Association of Citizen’s Councils of Mississippi, 4th Annual Report July 1958. 

https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1006&context=citizens_pamph at 1. 33 David Halberstam, The White Citizens Councils: Respectable Means for Unrespectable Ends, COMMENTARY, 

October 1956. https://www.commentary.org/articles/david-halberstam/the-white-citizens-councilsrespectablemeans-for-unrespectable-ends/. 

The [White Citizens] Councils have an almost self-conscious desire for respectability. They 

struggle to achieve a constitutionally illegal purpose by “all legal means.” They shun both the 

Klans’ reputation for violence, and their haberdashery; their members are respectable citizens of 

the community, the quintessence of the civic luncheon club. At their meetings there is emphasis 

on speakers from the ministry and the universities. 

Id. David A. Graham, The White-Supremacist Group That Inspired a Racist Manifesto, THE ATLANTIC, June 22, 2015, 

https://www.theatlantic.com/politics/archive/2015/06/council-of-conservative-citizens-dylann-roof/396467/. 

(“The CCC’s roots lie in an older, now-defunct organization called the Citizens Councils of America (also known as 

White Citizens Council), which aimed to be a (somewhat) more respectable alternative to the Ku Klux Klan for 

white southerners who opposed integration; the group was sometimes called the ‘uptown Klan.’”) 34 See, e.g., American Womanhood Needs Tough U.S. Anti-Rape Law, THE CLARION-LEDGER AND JACKSON DAILY NEWS, 

May 3, 1959, https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1069&context=citizens_clip. (editorial 

against a proposed federal anti-lynching law stating “The rape rate is soaring and Negroes commit the vast 

majority of them . . .”) 

7 
 

 

 

WCC, the Klan also enjoyed federal tax exemption under IRC 501.35 Today, the CCC demonizes 

African American no less than either of its predecessors.36 Like approximately 9037 other 

organizations variously described as “hate groups,”38 the CCC and the New Century Foundation 

continue to enjoy federal tax exemption to this day.

39 

I. INTRODUCTION 

Constitutional law is only occasionally, if not sensationally, concerned with taxation. The 

daily presence of taxes in the lives of American citizens is even less occasionally troubled by 

35 Samuel D. Bronson, Addressing Hate: Georgia, The IRS, and The Ku Klux Klan, 41 Va. Tax Rev. 45, 55 - 60 (2021) 

(asserting that the Ku Klux Klan claimed tax exemption as a charity or a fraternal beneficiary association.) 

36 Supra notes 26-27 and accompanying text. 37 One source estimated that there were about 55 tax exempt hate groups. Eden Stiffman, Dozens of ‘Hate Groups’ 

Have Charity Status, Chronicle Study Finds, CHRONICLE OF PHILANTHROPY, Dec. 22, 2016, 

https://www.philanthropy.com/article/dozens-of-hate-groups-have-charity-status-em-chronicle-em-study-finds/. 

A more recent report estimates that there are 90 tax exempt hate groups. Steve Axelrod, Kristin Steve, and Megan 

Towey, Alleged hate groups get tax breaks as registered charities, Dec. 1, 2020, 

https://www.cbsnews.com/news/alleged-hate-groups-tax-breaks-registered-charities/ 38 The Southern Poverty Law Center’s defines a “hate groups” as: 

An organization or collection of individuals that – based on its official statements or principles, 

the statements of its leaders, or its activities – has beliefs or practices that attack or malign an 

entire class of people, typically for their immutable characteristics. An organization does not 

need to have engaged in criminal conduct or have followed their speech with actual unlawful 

action to be labeled a hate group. 

Southern Policy Law Center, What is a hate group? (March 18, 2020) 

https://www.splcenter.org/20200318/frequently-asked-questions-about-hate-groups#hate%20group. The SPLC 

definition is perhaps broader than the implicit definition of “hate groups” adopted by one donor advised fund to 

regulate its grant-making decisions: 

Specifically, the Foundation prohibits any support of organizations engaged in “hateful activities” 

defined to mean activities that incite or engage in violence, intimidation, harassment, threats, or 

defamation targeting an individual or group based on their actual or perceived race, color, 

religion, national origin, ethnicity, immigration status, gender, gender identity, sexual 

orientation, or disability. These activities are contrary to the Foundation’s mission and its 

charitable status. 

Amalgamated Foundation, Special Note: Grants Activity Policy, 

https://www.amalgamatedfoundation.org/grants-activity-special-note. 39 Supra note 25. 

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constitutional principles present nevertheless, lurking in the dense thicket of overwrought tax 

statutes and regulations. When an issue arises the resolution of which requires the application 

of constitutional rules to federal taxes, it is often a momentous occasion.

40 That might be the 

case regarding the question whether government may deny tax exemption and charitable 

contributions to hate groups.41 By “hate group” I mean stochastic terrorist organizations. Those 

that (1) “attack or malign an entire class of people, based on immutable characteristics”42 or (2) 

“incite . . . violence, intimidation, harassment, threats, or defamation targeting an individual or 

group based on their actual or perceived race, color, religion, national origin, ethnicity, 

immigration status, gender, gender identity, sexual orientation, or disability.”43 People, 

especially those targeted by hate groups, might be surprised to know that we all help pay hate 

groups’ costs.

44 We do so indirectly via tax exemption45 and the charitable contribution 

deduction,46 both of which are characterized as public subsidies.

47 Constitutional and tax issues 

collide at the intersection of free speech and public subsidization of hate groups. 

40 Thus, an early indication that the Constitution mandated equal dignity before the law for LGBTQ persons and 

same-sex marriages occurred in a case regarding a taxpayer’s right to claim an estate tax exemption for surviving 

spouses. See United States v. Windsor, 570 U.S, 744 (2013). Similarly, the nation’s tortuous path towards 

universal health care was greatly assisted by the Supreme Court’s reliance on Congress’ constitutional taxing 

power to uphold Obama-care’s individual mandate and its related penalty. National Federation of Independent 

Business v. Sebelius, 567 U.S. 519 (2013). Of course, the Supreme Court is more often called upon to provide 

definitive interpretations of tax statutes than it is to address the constitutionality of tax statutes or regulations. 

See Jasper I. Cummings, THE SUPREME COURT'S FEDERAL TAX JURISPRUDENCE (2ed. 2016). 41 Charitable organizations may be granted exemption from tax under IRC §501(c)(3). Organizations exempt under 

IRC 501(c)(3) may receive contributions generating tax deductions to the donor. IRC §170. Unless otherwise 

indicated, I refer to those organizations as “exempt” or “tax exempt.” 

42 Supra note 36. 43 Id. 44 “When the Government grants [tax] exemptions or allows [charitable contribution] deductions all taxpayers are 

affected; the very fact of the exemption or deduction for the donor means that other taxpayers can be said to be 

indirect and vicarious ‘donors.’” Bob Jones University v. 461 U.S. 574, 591 (1983). 45 I.R.C. §501. 46 I.R.C. §170 47 Regan v. Taxation With Representation, 461 U.S. 540,544 (1983). (“Both tax exemptions and tax deductibility are 

a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash 

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Constitutional scholars blithely assert that the collision is not serious.48 They point to a 

doctrine known as “unconstitutional conditions” to conclude that government may not deny tax 

exemption because it condemns the ideas propagated by hate groups. To do so, the argument 

goes, would grant the government the right to do indirectly what it may not do directly;49 

government may not punish hate speech directly, and thus may not do so indirectly through 

discriminatory [by speech content] use of its taxing or spending power. I prove the simple and 

obvious fallacy.50 The unconstitutional conditions doctrine, taken to its logical end, must also 

prohibit the government from indirectly subsidizing stochastic terrorism. Government may not 

itself engage in hate speech.

51 It follows, so long as that is true, that government may not 

subsidize hate groups because to do so would accomplish indirectly what may not be 

accomplished directly. In any event, the unconstitutional conditions doctrine is hardly convincing 

either way. It is a doctrine comprising situational ethics, and thus neither predictable nor 

expository.

52 The Supreme Court rather obviously strains credulity to sidestep the doctrine when 

grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are 

similar to cash grants of the amount of a portion of the individual's contributions.”) 48 Professor Eugene Volokh is probably the most prominent first amendment scholar too easily dismissing the 

notion that government may deny subsidy to hate groups. Eugene Volokh, No, the IRS may not deny tax 

exemptions on the grounds that a group is a supposed ‘hate group,’ WASH. POST: VOLOKH CONSPIRACY (Dec. 29, 2016, 

8:37 a.m.), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/29/no-the-irs-may-not-denytax-exemptions-on-the-grounds-that-a-group-is-a-supposed-hate-group/. But first amendment jurisprudence is far 

too “incoherent” to conclude as Volokh does. At the very least, one must address Justice Scalia’s sentiment that it 

is “preposterous to equate the denial of taxpayer subsidy,” however much an activity or purpose is imbued with or 

dependent on speech, with government’s direct and unconstitutional prohibition of that same speech. National 

Endowment for the Arts v. Finely, 524 U.S. 569, 596 (1998). 

49 Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1415 (1989) (“The doctrine of 

unconstitutional conditions . . . reflects the triumph of the view that government may not do indirectly what it 

may not do directly.”) 50 Supra note ____ and accompanying text. 51 See supra note _____ and accompanying text. 52 Supra note ____ and accompanying text. Leading constitutional scholars are perhaps more polite in their 

description of the unconstitutional conditions doctrine. See, e.g., Cass Sunstein, Why The Unconstitutional 

Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion) 70 B.U. L. REV. 

593 (1990) (arguing that the doctrine should be abandoned). Louis W. Fisher, Contracting Around the Constitution: 

10 
 

 

 

 

 

 

 

 

 

 

 

 

to do otherwise would result in an undesirable outcome.53 After showing that the 

unconstitutional conditions doctrine cannot and need not require subsidization of hate groups, I 

consult First Amendment incantations54 – government speech,55 private speech,56 subsidized 

speech,57 limited [metaphysical] public fora,58 unconstitutional speech,59 and government’s right 

to regulate speech within its “managerial domain.”60 The incantations require tax exemption be 

granted but also that they be denied to hate groups, ambiguously in either case. They go either 

way. My bias favors the conclusion that government may and must deny tax exemption to hate 

groups. After demonstrating that speech incantations are hopelessly indeterminate,

61 I rest that 

case on constitutional normality. 

An Anticommodificationist Perspective on Unconstitutional Conditions, 21 U. PA. J. CONST. L. 1167, 1168 - 69 (2019) 

(“The doctrine of unconstitutional conditions is notoriously complex, convoluted, and inconsistent.”) 53 Compare Rust v. Sullivan, 500 U.S. 17 (1991) (Congress decision to condition federal funding on recipient’s 

refraining from discussing abortion held constitutional) with Legal Services Corp. v. Valazquez, 531 U.S. 533 (2001) 

(Congress’s decision to condition federal funding on recipient’s refraining from challenging constitutionality of 

federal statute held unconstitutional). 

54 An incantation is “a written or recited formula of words designed to produce a particular effect.” Incantation, 

Merriam-Webster’s Collegiate Dictionary (11th ed. 2022). My intent is to convey that the analytical labels 

employed to resolve free speech issues are ultimately unhelpful. See Robert L. Tsai, Fire, Metaphor, and 

Constitutional Myth-Making, 93 GEO. L.J. 181, 196 (2004) (describing a judicial incantation as a “brief, catchy, 

jargon-free statement that itself [becomes] a quotable conception of law.”). 55 See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460 (2009); Walker v. Texas Division, Sons of Confederate 

Veterans, 576 U.S. 200 (2017); Matal v. Tam, 582 U.S. 218 (2017) (all discussing the government’s right to engage 

in content or viewpoint discrimination regarding its own speech). See generally, Abner Greene, Government of the 

Good, 53 VAND. L. REV. 1 (2000). 56 Rosenberg v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); Matal v. Tam, 582. U.S. 218 

(2017). Legal Services Corp v. Velazquez, 531 U.S. 533 (2001). (both finding private speech, despite government 

funding) 

57 See generally Robert Post, Subsidized Speech, 106 YALE L. J. 151 (2006); Martin H. Redish and Daryl I. Kessler, New 

Problems for Subsidized Speech, 56 WM & MARY L. REV. 1083 (2015). 58 See Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995) (forum analysis of 

university's funding of printing for student publications); Perry Education Ass’n v. Perry Local Educator’s 

Association, 460 U.S. 37 (1983) (forum analysis of school mail system); Cornelius v. NAACP Legal Defense & 

Education Fund, 473 U.S. 788 (1985) (forum analysis of charitable contribution program). 59 Richard C. Schragger, Of Crosses and Confederate Monuments: A Theory of Unconstitutional Government 

Speech, 63 Ariz. L. Rev. 45 (2021). 

60 See generally Robert Prost, Subsidized Speech, 106 YALE L. J. 151 (2006); 61 Professor Post’s observations almost 20 years ago are still valid today: 

11 
 

 

 

 

 

 

 

 

 

The few tax scholars who have defended government’s right to deny tax exemption to 

hate groups are correct,

62 in my view, but insufficiently convincing. If their goal is to convince 

the tax collector that she may safely deny tax exemption, they have failed only because they do 

not confront resolvable but nevertheless troubling constitutional issues about which she may 

harbor significant doubt given an incoherent free speech jurisprudence.

63 The tax collector must 

be convinced that the Constitution does not prohibit the denial of tax subsidies; she doesn’t have 

the luxury of the moral certitude with which people know that hate is not charitable.

64 Tax 

scholars prefer instead to simply define “education” for purposes of tax exemption in a way that 

excludes stochastic terrorism, either by limiting tax exemption to formal education taking place 

In recent years something seems to have gone seriously amiss with the Supreme Court's ability 

doctrinally to elucidate its First Amendment decisions. In fact, its First Amendment doctrine has 

begun to display an insouciance so pronounced as to mark a virtual divide between the language 

of doctrine and the resolution of cases. Although the pattern of the Court's recent First 

Amendment decisions may well be (roughly) defensible, contemporary First Amendment 

doctrine is nevertheless striking chiefly for its superficiality, its internal incoherence, its 

distressing failure to facilitate constructive judicial engagement with significant contemporary 

social issues connected with freedom of speech. Oliver Wendell Holmes once remarked how 

difficult it was to “think accurately--and think things not words.” Our First Amendment 

jurisprudence has become increasingly a doctrine of words merely, not of things. 

Robert Post, Recuperating First Amendment Doctrine 47 STAN. L. REV. 1249, 149-50 (1995). 62 See Samuel D. Brunson, Addressing Hate: Georgia, The IRS, and The Ku Klux Klan, 41 VA. TAX REV. 45 (2021); Eric 

Franklin Amarante, Why Don’t Some White Supremacist Groups Pay Taxes?, 67 EMORY L.J. ONLINE 2045 (2018); Alex 

Reed, Subsidizing Hate: A Proposal to Reform The Internal Revenue Service’s Methodology Test, 17 FORDHAM J. 

CORP. & FIN. L. 823 (2012). All these articles assume the problem solved by better enforcement of current law or 

restating the tax definition of “education.” 

63 Professor Mayer is one of the few tax scholars to address the unconstitutional conditions doctrine with 

reference to exempt organizations, though he doesn’t specifically address tax exemption for hate groups. See 

Lloyd Hitoshi Mayer, Nonprofits, Speech, and Unconstitutional Conditions, 46 CONN. L. REV. 1045 (2014) 64 In 2013, IRS workers found themselves mired in “a firestorm of criticism” when it was alleged that its Exempt 

Organizations Division sought to suppress speech by targeting conservative social welfare organizations for special 

enforcement and delaying their applications for tax exempt status. Donald B. Tobin, The Internal Revenue Service 

and A Crisis of Confidence: A New Regulatory Approach for a New Era, 16 FLA. TAX REV. 429, 462 - 466 (2014). The 

allegation resulted in a Treasury Department report essentially confirming the allegation – though not determining 

what the motives were. Treasury Inspector General for Tax Administration, 2013-10-053, Inappropriate Criteria 

Were Used to Identify Tax-Exempt Applications for Review (May 14, 2013), 

www.treasury.gov/tigta/auditreports/2013reports/201310053fr.pdf [hereinafter Treasury inspector]. The Treasury 

Report precipitated congressional hearings and several lawsuits. Donald B. Tobin, infra. 

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in schools (“schooling”),

65 or by simply interpreting the term “education” in a manner that 

excludes teaching hate. 66 The former approach throws the proverbial baby out; much of what 

is good about education occurs outside schools. Restricting educational exemption to schooling 

implies that the distinction between education and its denigrated cousin – indoctrination – 

cannot be articulated in a way that meets constitutional muster. I do not concede that 

implication. Instead, I rely on epistemology and philosophy to show that education and 

indoctrination can be distinguished so that the education is subsidized, and indoctrination is not. 

Just as I believe stochastic terrorists want those they hate never to exist, I also assume that hatred 

of a people based on an immutable characteristic must be indoctrinated. Adequately defining 

indoctrination, and then distinguishing indoctrination from education necessarily denies tax 

exemption to hate groups. The second proposal is the better one, but its proponents thus far 

rely on a constitutionally suspect (because it is content-based and too subjective) analysis known 

as the “methodology test.” I prove that while government may not prohibit hate speech, it may 

constitutionally deny exemption for hate groups without dancing around the First Amendment 

elephant. In other words, exemption for hate groups can be denied not only because hate groups 

are not charitable, as that term is now adequately defined, or that hate groups indoctrinate 

instead of educate, but precisely because we hate the ideas they teach. 

Tax scholars necessarily agree with the definitional reasons for denying tax exemption to 

hate groups. They perhaps disagree with denying tax exemption precisely because of hateful 

65 See Eric Franklin Amarante, Why Don’t Some White Supremacist Groups Pay Taxes? 67 EMORY L.J. ONLINE 2045 

(2018). (proposing to limit educational tax exemption to formal schools) 66 See Alex Reed, Subsidizing Hate: A Proposal to Reform The Internal Revenue Service’s Methodology Test, 17 

FORDHAM J. CORP. & FIN. L. 823 (2012) (advocating a more “robust” enforcement of current law definition of 

“educational” organizations). 

13 
 

 

 

 

charity excludes racial discrimination,

68 but that precedent is so thoroughly sui generis as to 

almost occupy the status of dicta, inapplicable to all but the context in which it was first 

articulated.69 What is lacking is a discussion of the normative basis from which to conclude that 

hate groups do not pursue charitable purposes, irrespective of whatever words they use for their 

purpose. I articulate that basis in support of my conclusion that “charity” explicitly excludes 

stochastic terrorism – not because of their words or sentences, but because hatred is the desired 

result. 

As regards “education,” scholars and the IRS have essentially relied on a faulty effort at 

epistemology, the results of which cannot be confidently applied. The law’s current definition of 

“education” is epistemological to an extent, but it is not entirely without precise reference to 

particular words - words that “inflame” or “disparage,”70 for example” - that lack objective 

meaning. To the extent government is sensitive to free speech concerns, it should rather avoid 

the issue instead of defending the current definition. The definition needs a deeper and more 

ideas.67 The definitional reasons for denying tax exemption remain sorely in need of elaboration, 

particularly regarding the meaning of “charity,” and the epistemology of “education.” First, 

there is a legitimate, if not uneasy, reliance on Supreme Court precedence to the effect that 

67 Professor Mayer, the only other tax scholar who has addressed free speech in this context, is clearly 

uncomfortable with the notion that tax exemption can be denied precisely because most people hate stochastic 

terrorism. Lloyd Hitoshi Mayer, supra note 60. 68 Bob Jones University v. 461 U.S. 574 (1983). 69 “In the decades since Bob Jones, no additional [fundamental national public policy] . . . has yet emerged, despite 

advances in civil rights protection, for example, for same-sex marriage under the Fourteenth Amendment, and for 

transgender rights under Title VII.” Lynn D. Lu, Who’s Afraid of Bob Jones? Fundamental National Public Policy’ 

and Critical Race Theory in a Delicate Democracy,” 25 CUNY L. REV. 93, 103-04 (2022). 70 See Rev. Rul. Rev. Proc. 86-43, 1986-2 C.B. 729; Supra notes ___ through ___ and accompanying text. 

14 
 

 

 

 

 

My contention is that teaching hate requires certain techniques collectively described as 

“indoctrination” and by defunding that technique, hate groups will necessarily be denied tax 

exemption. Here, I should quickly address a common retort. One that assumes hate groups may 

easily disguise indoctrination as education by including a few objectively non-biased sources or 

materials in their “curriculum.”71 I do not dispute the assumption; I object to the assertion’s 

intellectual blindness. The disguise can only be successful, despite the enduring presence of 

haters in the curriculum, if it adopts objectively non-biased sources sufficient that the process be 

deemed educational though still biased or delivered by unrepentant haters. The law will never 

entirely exclude racism or even implicit bias from education; it can only insist that subsidized 

educators employ a degree of objectivity sufficient that students may come to conclusions 

different from those held by the educator. So if the only way to avoid the label, “indoctrination,” 

is by adhering to even a minimum level of objectivity, the battle will have been won as a matter 

of educational tax exemption. That is the best that can be hoped for and indeed the most that 

thorough epistemological elaboration so that it lends credence to the notion that “education” 

excludes methods necessary to teach people to hate other people. 

ought to be demanded. Throwing up one’s hands in realization that people will routinely avoid 

71 Professor Volokh made this thoughtless assertion before a Congressional panel as sort of a last reason (after a 

faulty free speech analysis) why it is scarcely worth the effort to deny tax exempt status to stochastic terrorist: 

It's also not clear that much would be gained from requiring hate groups to support their views 

using factual arguments (which could easily be based on pseudoscience) or pressuring them to 

add the patina of "reasoned development" to their claims. Advocates of any position, however 

wrong-headed, can always cherry-pick some facts that they could use to buttress their 

arguments. 

The Volokh Conspiracy, Reason, https://reason.com/volokh/2019/09/19/the-first-amendment-and-taxexemptions-for-hate-groups/. September 19, 2019. 

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an ideal outcome is to make the perfect the enemy of the good. And without an 

epistemologically based definition the law does not even achieve the good.72 

After establishing definitional points and thus the first two bases upon which hate groups 

should be denied tax exemption, I confront the constitutional concerns, starting with the 

vagueness doctrine and then addressing speech incantations. I note that government may pick 

and choose the activities it will fund even if doing so disadvantages speech that government could 

not directly prohibit.73 The constitutional problem arises not by the government’s selective 

subsidization of activities or outcomes dependent on speech, but when a subsidized activity or 

outcome is so inadequately defined that it “chills” speech or allows government discretion to 

punish speech under the guise of regulating activity.

74 I easily conclude that the terms “charity” 

and “education” (whether used to denote an activities or outcome) are or can be defined clearly 

enough to deny exemption to hate groups without chilling speech or leaving government with 

discretion to deny exemption based on speech. 

72 I dare say that where there is objective debate regarding whether an organization is truly educational or merely 

a disguised indoctrinator, organizations will be deemed educational for tax exemption purposes. I cannot 

legitimately demand that government prohibit teaching ideas I hate, but I can legitimately demand that ideas I 

hate be taught with regard for objective truth if it is to be taught with my subsidy. See Karl Zinsmeiste, 

Roundtable, Some People Love to Call Names, Philanthropy Roundtable, Dec. 23, 2021, 

https://www.philanthropyroundtable.org/?s=Some+People+Love+to+Call+Names. (taking issue with The Southern 

Poverty Law Center’s labeling of some organizations as “hate groups,” and setting forth objective reasons against 

the designation). 

73 United States v. American Library Association, Inc. 539 U.S. 194 (2003) (conditioning federal funds on libraries’ 

blocking of pornographic internet sites was valid exercise of Congress’ power to define the funded activity); Rust v. 

Sullivan, 500 U.S. 173 (1991) (“But we have here not the case of a general law singling out a disfavored group on 

the basis of speech content, but a case of the Government refusing to fund activities, including speech, which are 

specifically excluded from the scope of the project funded.”). 74 Big Mama Rag, Inc. v. United States, 631 F.2d 1030 (DC Cir. 1980) (definition of “education” is unconstitutionally 

vague). 

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exemption to hate groups, there is another that suggests government may not deny tax 

exemption to hate groups so long as tax exemption is an available benefit. The incantations are 

guides, but even the most experienced guide can lead followers astray if he gazes only at his feet 

along their way. This is not to admit of an escape from my conclusion that hate groups must be 

denied tax exemption. I contend that incantations obscure the resolution not because I cannot 

articulate them in support of my bias, but because I can articulate them in support of and in 

opposition to my bias. In the end, I rely on constitutional norms to show that government may 

and, indeed, must deny tax exemption to hate groups. 

II. CHARITY 

Scholars confronting whether hate groups qualify for tax exemption pay insufficient 

attention to a foundational requirement.75 They blithely agree that teaching and advocating hate 

is as uncharitable, in the popular and contemporary sense of the word, as can be. Both 

Speech incantations present the more difficult problems. The incantations do not 

determine whether government may or must deny tax exemption to hate groups because of their 

ideas. For every First Amendment incantation supporting government’s right and duty to deny 

constitutional and tax scholars, however, dismiss the contemporary notion of charity as if that 

notion is irrelevant precisely because it is popularly held.

76 Constitutional scholars conflate 

75 Brunson, supra note 60 (addressing whether hate groups are educational but not whether they are charitable); 

Eric Franklin Amarante, supra note 60 (analyzing whether hate groups are educational but not whether they are 

charitable); Alex Reed supra note 60 (addressing whether hate groups are educational but not charitable) 76 See, e.g., Eugene Volokh, supra note 69 (asserting that the IRS may not deny tax exemption to hate groups even 

though “millions of Americans” find their views abhorrent ); Michael Kunzelman, White nationalists have raised 

millions thanks to tax-exempt charities, Salon, (Dec. 23, 2016, 12:46 pm), 

https://www.salon.com/2016/12/23/white-nationalists-raise-millions-with-tax-exempt-charities/. (quoting various 

tax scholars, one of whom notes that “it should make people uncomfortable that the government is subsidizing 

17 
 

 

 

 

speech and purpose, causing them to ignore that Congress may define an “activity” to be funded 

even if enforcing the definition defunds certain opinions77 For their part, tax scholars analyze 

the issue with what seems a distinct lack of rigor derived from moral certitude. Instead of 

explicating hate groups’ genocidal purposes vis-à-vis the meaning of charity or education, tax 

scholars implicitly, if not unknowingly, concede that hate groups are charitable and then address 

whether hate groups are “educational” within the literal confines of IRC 501(c)(3).78 This is all 

well and good, but by forgetting that all exempt organizations must first do no harm – which is 

to say, their purpose (i.e., their desired outcome) must be “charitable” whatever else 

organizations claim to be – those scholars render charitable tax exemption an amoral concept, 

ultimately conceding false equivalence between love and hate.

79 They necessarily render the 

word “charity” meaningless if even a hate group has the requisite purpose. 

We might concede, just for the sake of argument, that hate groups are educational in a 

very literal sense of the word. They teach something, after all. Tax scholars rightly insist, though, 

that pedagogy is important and that hate groups’ pedagogy prove they are merely 

propagandistic, rather than educational.

80 Something about that assertion is not quite 

groups that espouse values that are incompatible with most Americans.”); Eden Stiffman, Dozens of ‘Hate Gourps’ 

have Charity Status, Study Finds, THE CHRON. OF PHILANTHROPY., Dec. 22, 2016 at ____, 

https://www.philanthropy.com/article/dozens-of-hate-groups-have-charity-status-em-chronicle-em-studyfinds/?cid2=gen_login_refresh&cid=gen_sign_in (“The idea of tax exempt organizations devoted to hate speech is 

just corrosive of everything that the tax-exempt sectors says it stands for.”). 77 Eugene Volokh, No, the IRS may not deny tax exemptions on the grounds that a group is a supposed ‘hate group,’ 

Wash. Post: Volokh Conspiracy (Dec. 29, 2016, 8:37 a.m.), https://www.washingtonpost.com/news/volokhconspiracy/wp/2016/12/29/no-the-irs-may-not-deny-tax-exemptions-on-the-grounds-that-a-group-is-a-supposedhate-group/. 78 Supra note 72. 79 “This simplistic reading of the statute, however, tears section 501(c)(3) from its [charitable] roots.” Bob Jones 

University vs. U.S. 639 F.2d 147, 151 (4th Cir. 1980), aff’d Bob Jones University v. U.S. 461 U.S. 574 (1983). 80 Supra note 60. See also Tommy F. Thompson, The Availability of the Federal Educational Tax Exemption for 

Propaganda Organizations, 18 U.C. Davis L. Rev. 487 (1985) (discussing the IRS’s efforts to deny tax exemption to 

groups whose methods constitute propaganda rather than education). 

18 
 

 

 

convincing so long as “education” is stripped of the requirement that all exempt organizations 

must first meet an evolving definition of charity. That evolution over at least 400 years,81 it 

should be noted, has not yet progressed to the point that charity includes outright hatred of 

certain human people because of their human characteristics. To date, though, tax scholars have 

ignored the first and overriding requirement that hate groups, even if they might be described as 

educational, must be charitable in both the popular and legal sense of the word to be tax exempt. 

Which is to say that the layperson’s suspicion that there is something entirely absurd about 

calling a hate group “charitable,” and therefore deserving of tax exemption, is not unworthy of 

jurisprudential exploration. 

The foregoing begs the question, what is “charity?” Bob Jones University v. 

Commissioner82 is often cited for its discussion of what is not charity. There, the Supreme Court 

articulated the proposition that racial discrimination violates “established,”83 “settled,”84 

“fundamental,”85 or “firm”86 public policy.87 But Bob Jones is most important for its conclusion 

that charity and racial discrimination are mutually exclusive, and its conclusion that every 

educational organization must be charitable to gain tax exemption. The analysis leading to that 

81 The meaning of charity in American law is derived from the English Statute of Charitable Uses. Charitable Uses, 

1601, 43 Eliz., ch. 4 (Eng.). Bob Jones v. United States, 461 U.S. 574 (1983). 

82 461 U.S. 574 (1983). 83 Id. at 591 (“A corollary to the public benefit principle is the requirement, long recognized in the law of trusts, that 

the purpose of a charitable trust may not be illegal or violate established public policy.”) 

84 Id at 585 (“to qualify for a tax exemption pursuant to 501(c)(3), an institution must show, first, that it falls within 

one of the eight categories expressly set forth in that section, and second, that its activity is not contrary to settled 

public policy.”) 85 Id. at 592 (“a declaration that a given institution is not “charitable” should be made only where there can be no 

doubt that the activity involved is contrary to a fundamental public policy.”) 

86 Id. at 598 (“Indeed, it would be anomalous for the Executive, Legislative and Judicial Branches to reach 

conclusions that add up to a firm public policy on racial discrimination, and at the same time have the IRS blissfully 

ignore what all three branches of the Federal Government had declared.”) 

87 That the required “public policy” is explained with at least four different modifiers – established, settled, 

fundamental, and firm – only adds uncertainty to an already imprecise phrase – “public policy.” 

19 
conclusion is useful for present purposes. First, Bob Jones makes public morality an entirely 

relevant and appropriate barometer by which to determine whether an activity is charitable.88 

The meaning of charity is infused, though perhaps not thoroughly prescribed by prevailing 

societal consensus.

89 And even though tax exemption encourages pluralism90 in the delivery of 

public goods and services, Bob Jones teaches that charity is not so pluralistic that even an 

extremely minoritarian concept of charity demands tax exemption. Second, Bob Jones reasoned 

that an organization explicitly enumerated in IRC 501(c)(3) – educational or scientific, for example 

– must nonetheless be charitable within contemporary meaning to be tax exempt, else tax 

exemption would be divorced from charity.

91 Third, Bob Jones reasoned that charity gathers its 

continuous meaning from the law of charitable trusts established in and inherited from the 

88 Id. at 593 n. 20 (“Yet contemporary standards must be considered in determining whether given activities provide 

a public benefit and are entitled to the charitable tax exemption. Charitable trust law also makes clear that the 

definition of “charity” depends upon contemporary standards.”). 89 Hence Bob Jones’s admission that discrimination was at one time thought not inconsistent with charity. Id. 90 In his concurrence in Bob Jones, Justice Powell worried that the majority’s insistence that charities comply with 

established, settled, fundamental and firm public policy worked against the idea of pluralism underlying tax 

exemption: 

Even more troubling to me is the element of conformity that appears to inform the Court's 

analysis. The Court asserts that an exempt organization must “demonstrably serve and be in 

harmony with the public interest,” must have a purpose that comports with “the common 

community conscience,” and must not act in a manner “affirmatively at odds with [the] declared 

position of the whole government.” Taken together, these passages suggest that the primary 

function of a tax-exempt organization is to act on behalf of the Government in carrying out 

governmentally approved policies. In my opinion, such a view of 501(c)(3) ignores the important 

role played by tax exemptions in encouraging diverse, indeed often sharply conflicting, activities 

and viewpoints. As Justice BRENNAN has observed, private, nonprofit groups receive tax 

exemptions because “each group contributes to the diversity of association, viewpoint, and 

enterprise essential to a vigorous, pluralistic society.” Far from representing an effort to reinforce 

any perceived “common community conscience,” the provision of tax exemptions to nonprofit 

groups is one indispensable means of limiting the influence of governmental orthodoxy on 

important areas of community life. Given the importance of our tradition of pluralism,4 “[t]he 

interest in preserving an area of untrammeled choice for private philanthropy is very great.” 

Id. at 609-10 (Powell, J. concurring) (citations omitted). 91 Bob Jones, 461 U.S. 574 (1983). 

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conception of charity. After Bob Jones, it is possible to know whether hate groups are charitable 

in a formal legal sense as well. 

One thing is certain. Charity is a concept resting on love of all humankind and the 

universal dignity and equality of all men and women.93 Hatred of one group of humans is the 

antithesis of charity; nor is hatred of one group offset by love of one’s own. A hate group cannot 

avoid the mutually exclusive relationship between hate and charity, by asserting it is only 

celebrating its own culture.94 The assertion is axiomatic and need not be belabored. 

Still, doubt and disbelief regarding the legal definition of charity thrive on uncertainty. 

While it is a matter of the highest judicial finding that racial discrimination is contrary to the 

contemporary meaning of charity, reliance on nondeliberative consensus expressed as “public 

policy” is not entirely satisfactory if only because consensus is difficult to determine except in the 

rarest of cases, apparently.

95 Doubt and disbelief dissipate, though, when consensus is arrived at 

United Kingdom.

92 We already knew that hate groups do not meet the contemporary non-legal 

92 Id. 93 “Charitable organizations originate from the great command to love thy neighbor as thyself.” Lars Gustafsson, 

The Definition of “Charitable” For Federal Income Tax Purposes: Defrocking the Old and Suggesting Some New 

Fundamental Assumptions, 33 HOUS. L. REV. 587, 589 (1996). 94 A hate group that asserts it does not hate other groups, but merely loves its own, gets no pass if it implies a 

necessity to hate another group to love its own. 

95 Thus, Bob Jones University has not resulted in any subsequent recognition of a public policy sufficient to deny tax 

exemption to an otherwise qualifying entity. The American Law Institute cautions against the use of public policy: 

one still often-quoted statement was that "public policy is an unruly horse," and the other that it 

"seems to me extremely dangerous to limit the power of disposition on any general notion of 

impolicy, without some definite rule or principle being shown to apply to the case . . . The danger 

of relying on general notions of public expediency or policy, which varies so much from time to 

time . . . [is that] such a rule of decision may lead . . . to the greatest uncertainty as to individual 

rights in each particular case, if Courts of justice are to decide upon nice speculations . . . without 

some definite mischief to the public being clearly shown to apply to the case." 

RESTATEMENT (THIRD) OF TRUSTS §29 General Notes on Clause (c) and Comments i through i(2) (AM. L. INST. 2012). 

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processes resulting in statutory or regulatory determinations provide a sense of certainty not 

provided by consensus expressed as a sort of public policy cloud drifting over jurisprudential 

landscape.

97 

The Internal Revenue Service perhaps doubts or does not believe its authority to deny tax 

exemption to hate groups, but that authority exists in articulated form, not just abstract public 

policy. Treasury Regulation 1.501(c)(3)-1(d) defines charity: 

Such term includes: relief of the poor and distressed or of the underprivileged; 

advancement of religion; advancement of education or science; erection or 

maintenance of public buildings, monuments, or works; lessening of the burdens 

of Government; and promotion of social welfare by organizations designed to 

accomplish any of the above purposes, or (i) to lessen neighborhood tensions; (ii) 

to eliminate prejudice and discrimination; (iii) to defend human and civil rights 

secured by law; or (iv) to combat community deterioration and juvenile 

delinquency.98 

If charity includes efforts “to eliminate prejudice and discrimination,” it cannot also mean efforts 

to perpetuate prejudice and discrimination. Likewise, if charity means defending “human and 

civil rights secured by law,”99 it cannot also mean efforts to deny or resist human and civil rights 

deliberatively and then articulated in statutes or rules.96 Not that legislative or regulatory 

articulation proves forever that articulated consensus is always right. But the deliberative 

96 See David A. Brennen, The Power of the Treasury: Racial Discrimination, Public Policy, and “Charity” in 

Contemporary Society, 33 U.C. DAVIS L. REV. 389, 426-27 (asserting that Congress is better able to utilize its 

legislative investigatory powers, and is more responsive to the democratic process, in the determination of public 

policy). 

97 See Id. at 426, note 193 (“This is not to suggest that Congress would necessarily come to the correct conclusion. 

However, given the passion voters generally have about racial issues any conclusion arrived at by Congress would, 

ideally, be reached only after thoughtful and careful consideration.”) 98 T.D. 6391, 24 FR 5220, June 26, 1959. 99 Hence, the White Citizens Council, formed to resist desegregation after Brown v. Board of Education, 346 U.S. 

886 (1954) would not have been “charitable” had the regulation been in place when the group formed. See supra 

notes 29 – 32 and accompanying text. 

22 
 

 

 

 

 

 

 

secured by law. Hate, as a purpose, is clearly contrary to a considered regulatory definition of 

charity, not just a definition based on abstract public policy. 

Recall, too, that the Supreme Court accepts charitable trust law as the underlying 

definitional authority for charitable tax exemption.100 Charitable trust law eliminates whatever 

doubt or disbelief might still linger by defining charity to exclude discrimination: 

It is particularly common, however, for provisions to be included in various types 

of charitable trusts, especially those created for educational or health purposes or 

for the relief of poverty, limiting the direct benefits or eligibility to persons of a 

particular national origin, religion, gender, sexual orientation, age group, political 

affiliation, or other characteristics or background . . . The issue for present 

Thus, it can hardly be doubted that an organization, even one that teaches something is 

nevertheless disqualified from federal tax exemption if its purpose can be described as 

perpetuating discrimination or denying human or civil rights. 

purposes, however, remains what provisions of this general type may, as a matter 

of trust law and policy, be inconsistent with the nature of charitable purposes. 

Provisions of these types in charitable trusts are not valid if they involve invidious 

discrimination. . . When a scholarship or other form of assistance or opportunity 

is to be awarded on a basis that, for example, explicitly excludes potential 

beneficiaries on the basis of membership in a particular racial, ethnic, or religious 

group, the restriction is ordinarily invidious and therefore unenforceable. Thus, a 

trust to provide land and maintenance for a playground from which Black children 

are excluded, or a trust to support a scholarship program for which no Roman 

Catholic may apply, is not enforceable under those terms as a charitable trust. 

Similarly, although the exclusions are not explicit, a trust to provide research 

grants for which only "white, Anglo-Saxon Protestants" may apply is invidious and 

noncharitable.101 

I am confident that the foregoing is accurate to the extent it relates how the word 

“charity” excludes hate groups under current law. But a descriptive understanding of charity 

100 Bob Jones University vs. 461 U.S. 574, 588-92 (1983). 101 RESTATEMENT (THIRD) OF TRUSTS §28 cmt. f (Am. L. Inst. 2012) 

23 
 

 

 

 

 

 

ultimately rests on the notion that charity excludes hate groups simply because we say it does 

(even if we said so by regulation adopted a long time ago). This is nonetheless appropriate 

because as Bob Jones teaches, charity reflects public policy and ultimately public policy is what 

we say it is. We should admit though that “public policy . . . is a very unruly horse, and when 

once you get astride it you never know where it will carry you. It may lead you from the sound 

law. It is never argued at all but when other points fail.”102 Public policy cannot provide all the 

confidence we desire because it is sort of a “last ditch” effort appeal. 

A normative understanding of charity mitigates the suspicion that the definition espoused 

above is appropriate only because it is convenient to a desired outcome. Here again, Bob Jones 

is illuminating because the justices – primarily Justices Burger, Powell, and to a lesser extent, 

Rehnquist -- took up an interesting debate regarding the normative basis of charity as that term 

relates to tax exemption. The justices emphasized different norms but ultimately agreed that 

the norms were not necessarily mutually exclusive. 

They each began from the accepted premise that government is burdened with the 

obligation to pursue the general welfare through the dispensation of public goods and services. 

Public goods and services are paid for, of course, primarily through taxation. Burger theorized 

that tax exemption is appropriate when the recipient alleviates government of the costs of doing 

that which the government would otherwise have to do.103 In a quid pro quo transaction, 

government pays exempt organizations in exchange for their doing what government would 

otherwise do. Hence, government – we, the people – loses nothing.104 The public is compensated 

102 Richardson v Mellish (1824), 2 Bing 229 at 252, 130 ER 294. 103 Bob Jones, 461 U.S. at 590. 104 Id. 

24 
 

 

 

 

for the exemption granted certain organizations by reduction of the amount people are required 

to contribute via taxation. An important elaboration on this point, one which I think entirely 

reasonable, is that government pays exempt organizations for doing things that government 

could do itself, but for whatever reason decides to outsource or not do at all. In other words, 

government subsidy is appropriate only when government, itself, is permitted to do whatever 

the exempt organization is doing with government subsidy. It follows that government may not 

subsidize an activity that it is prohibited from performing itself. 105 

Justice Powell stressed a different normative rationale, one based on diversity and 

pluralism. He worried, unnecessarily as I explain below, that Burger’s emphasis on the alleviation 

of government burdens imposed a conforming “orthodoxy”106 on efforts by grassroots 

organizations who advocate or pursue goals alternative to those pursued by government. In 

Powell’s view, exemption encourages a diversity of thought and action appropriate to a “vigorous 

pluralistic society.”107 Here, I would offer yet another elaboration. Exemption allows groups 

without a voting majority to follow an alternative priority with which public goods or services are 

pursued. Where government might think it unimportant to focus on environmental protection 

or endangered species, grassroots organizations might differ and direct their financial and human 

resources exclusively to preservation of wetlands or bald eagles. It is hard to know whether 

105 The important exception is tax exemption for religious organizations. Government is precluded from 

subsidizing religion. But in Walz v. Tax Commission of City of New York, the Supreme Court allowed government 

exemption of religious organizations because denying tax exemption would cause a greater constitutional harm – 

via government tax regulation of religious organizations – than does tax exemption. 397 U.S. 664 (1970). 106 “Far from representing an effort to reinforce any perceived “common community conscience,” the provision of 

tax exemptions to nonprofit groups is one indispensable means of limiting the influence of governmental 

orthodoxy on important areas of community life. Given the importance of our tradition of pluralism, “[t]he interest 

in preserving an area of untrammeled choice for private philanthropy is very great.” Bob Jones, 461 U.S. at 609-10 

(Powell, J. concurring). 

107 Id. 

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Powell’s view represents a diversion from Burger’s public benefit rationale or just a clarification. 

I tend to think that Powell is asserting the right of individuals to differ with the government as to 

public priorities and the methods by which to accomplish those priorities, but not to define for 

themselves, without any limitation, what is intended by “public benefit.”108 Significantly, Powell 

did not argue that the pluralism and public benefit rationale were mutually exclusive, and he 

even conceded that one may take precedence over another.

109 

A third rationale, one not raised by the Court, is less convincing but nevertheless worth 

discussing. Two scholars have argued, and Congressional tax researchers110 apparently agree, 

that one justification for tax exemption is that certain organizations are “morally 

commendable.”111 The earliest expression argued that it was “simply wrong” to tax organizations 

that “relieved the burdens of government, but also helped to form the moral fiber of the young 

108 Powell agrees that government may define those things that are not conducive to the public good. “In this case 

I agree with the Court that Congress has determined that the policy against racial discrimination in education 

should override the countervailing interest in permitting unorthodox private behavior.” Id. at 610. (Powell, J. 

concurring). 

109 Id. at 610-612. (Powell, J. concurring). “As a matter of trust law, one of the main sources of the general law of 

charity, no trust can be created for a purpose which is illegal. The purpose is illegal if the trust property is to be 

used for an object which is in violation of the criminal law, or if the trust tends to induce the commission of crime.” 

Rev. Rul. 75-384, 1975-2 C.B. 204. Thus, “Fagin’s School for Pickpockets” is not denied tax exemption because it 

counsels the commission of illegal activity, but because teaching students how to engage in illegal activities is not 

charitable. Green v. Connally, 330 F. Supp. 1150, 1160 (1971). See also Bob Jones v. United States, 461 U.S. 574, 

619 (“I have little doubt that neither the ‘Fagin School for Pickpockets’ nor a school training students for guerrilla 

warfare and terrorism in other countries would meet the definitions contained in the regulations.”). The more 

important point is that teaching people how to commit crime is a speech activity undeserving of tax exemption, 

not just because teaching people how to commit crime is unprotected speech, but because teaching people how 

to commit crimes is not an activity within the public’s moral conception of charity even if teaching people how to 

commit crimes constituted protected speech. Similarly, hate speech is protected speech, but teaching people to 

hate other people is not within the public’s moral conception of charity. 

110 For a comprehensive summary of the rationale for charitable tax exemptions see, Joint Committee on Taxation, 

Historical Development and Present Law of The Federal Tax Exemption for Charities and Other Tax-Exempt 

Organizations Scheduled for a Public Hearing Before the House Committee on Ways and Means on April 20, 2005 

17 – 20 (JCX- 29-05 No. 4) (April 19, 2005). 111 Id. Dean Pappas, The Independent Sector and the Tax Law: Defining Charity in an Ideal Democracy, 64 S. CAL. 

REV. 461, 466 (1991). (“This policy may therefore place an initial qualification on the distribution of tax exemption 

that the organization serve some purpose that is morally commendable.”) 

Id. at 466-67. 

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nation.”112 A later assertion claimed that “charitable organizations provide important moral and 

social functions that deserve support.”113 Because of their “selfless service for the public benefit 

. . .” it might be immoral to tax them.114 Paying homage to summum bonum does little to 

normatively distinguish deserving from undeserving organizations. But I do not mean to entirely 

dispense with morality as a normative rationale. Even if as a philosophical matter morality cannot 

be objectively determined, the notion of rewarding good or moral activities is nevertheless a 

worthy pursuit. The weakness of morality as a rationale occurs at the margins, rather than in the 

main, when people debate the ethics of harvesting stem cells or providing sanctuary for illegal 

immigrants for example. The morality of those purposes is legitimately debatable, but I contend 

that even haters admit that racial, ethnic, religious or gender-based hatred is always immoral.115 

To say that Congress seeks to limit tax exemption to organizations that are moral, even if it can 

hardly know, ex ante, the entire universe of those organizations, is hardly saying more than that 

Congress is pursuing the public good but not the public bad. 

Still, it is unnecessary to inject amorphism into the analysis. The relatively objective 

rationales – public benefit and pluralism – aren’t even in conflict regarding whether stochastic 

terrorism is conducive to a charitable outcome. Under the public benefit rationale, hate groups 

don’t deserve tax exemption. Not only do they fail to provide a public good or service the 

112 Id. 113 Id. at 466 (1991). Pappas quoted an earlier commentary: “A basic consideration underlying the concept of 

exemption is that of morality. In framing the income tax law, certain value judgments were made by Congress that 

it was simply wrong to tax certain types of organizations. It seemed anomalous to discourage the growth of 

educational, civic, charitable, or other similar organizations which . . . helped to form the moral fiber of the young 

nation.” Id. quoting James J. McGovern, The Exemption Provisions of Subchapter F, 29 TAX LAW. 523, 526 (1976). 114 Id. 115 For example, those who defend the appropriateness of government’s display of the confederate battle flag 

typically disclaim any malevolent motivation and instead assert that doing so merely recognizes and celebrates 

cultural heritage. See generally, Deborah R. Gerhardt, Law in the Shadows of Confederate Monuments, 27 MICH. J. 

RACE & LAW, 1 (2021). 

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government would or could otherwise provide, but they also tend to increase government 

burdens and hence the cost to the rest of us. The subsidy is not repaid by reduction in everybody 

else’s tax bill because the costs of hate presumably outweigh any benefits derived. And although 

diversity is essential to a vigorous pluralistic society, hate groups necessarily work in political 

opposition to diversity and pluralism. Hate groups seek exclusion and concentration of socioeconomic power. Thus, there is no accepted normative rationale for including hate groups in the 

universe of charities, however vast and otherwise undefined that universe may be. 

 III. EPISTEMOLOGY 

This section begins with broad discussion of the value of education in socio-economic 

terms. It relates the philosophical value and goals of education, and then describes the 

epistemological methods that achieve those values and goals. I distinguish education from 

indoctrination, a teaching activity with different values, goals, and methods than education, and 

prove that exemption is appropriate for education but not indoctrination. 

Two efficiency related points should be made. First, if teaching activities are ubiquitous 

perhaps their occurrence or increase need not be subsidized at all. Second, and as a rejoinder to 

the first point, certain teaching activities are considered essential to self- or societalactualization. Universal exposure to – indeed, an oversupply of – that sort of teaching is 

desirable. Universal exposure would not occur without subsidy because teaching might be 

insufficiently profitable to occur in sufficient supply. It follows that some teaching activities or 

experiences are, as a matter of efficiency, more worthy than others. Some teaching activities are 

28 
 

entirely unworthy of public support because (1) there is sufficient supply without public subsidy, 

or (2) the activities work in opposition to self- or societal-actualization. 

Here, it is helpful to summarize the analysis. Government should subsidize those teaching 

activities that encourage self- or societal-actualization. To assist in distinguishing activities 

worthy of subsidization from unworthy activities, I use the word “education” to refer to worthy 

teaching and “unmitigated indoctrination” to refer to unworthy teaching. Education and 

indoctrination are both teaching activities, though indoctrination is of the pejorative form. As a 

normative matter, indoctrination is unworthy when it is not mitigated by democratic controls 

that minimize negative effects on self- or societal-actualization. Tax exemption is thus 

appropriate to subsidize education and mitigated indoctrination. To be more precise, 

government should subsidize education whether it occurs in formal or informal settings; 

government should subsidize, or rather tolerate indoctrination only when it occurs in formal 

settings. In formal settings, indoctrination is mitigated by democratic oversight – e.g., elected 

school boards, accrediting bodies, regulatory agencies, or academic freedom – all forms of which 

are ultimately responsive to the public and not entirely insensitive to individualism expressed as 

dissent or unorthodoxy. Hence the harm of indoctrination in formal schooling is mitigated. In 

informal settings, indoctrination is less effectively subject to democratic oversight, if at all, and 

thus more often harmful to self- or societal-actualization. Unmitigated indoctrination, though it 

may not be prohibited, is therefore unworthy of public subsidy. 

It is nearly impossible to overstate the value of benefits derived from education. Still, it 

is worth reciting the most common benefits because doing so exposes the normative reasons for 

educational tax exemption and helps identify teaching activities that do not generate those 

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benefits. Economists treat education as investment in human capital.

116 Returns are classified 

as either private or public, and then market or nonmarket.117 Private returns are those enjoyed 

by individuals, with market returns measured almost exclusively by changes in productivity and 

earnings.118 Private nonmarket returns are measured by changes in social well-being and include 

such things as differences in health and lower infant mortality, relative to health and infant 

mortality in the absence of education.

119 Public market returns are those not exclusively inuring 

to an individual and include changes in gross domestic product, for example.120 Public nonmarket 

returns include such things as changes in crime rates, impact on public health, and changes in the 

rate of political and civic engagement.121 

Along with higher earnings, private market returns to education include more fringe 

benefits and better working conditions.122 Private nonmarket returns include lower divorce 

rates, better health and longer life expectancy, higher cognitive development amongst children 

of educated parents, increased high school graduation rates amongst children of educated 

parents, better child health, lower rates of teenage pregnancy, better physical health, lower 

prevalence of severe mental illness, more efficient consumer behavior, and higher “marital 

choice efficiency.”123 Public market returns include higher gross domestic product, lower 

116 Barbara L. Wolfe & Robert H. Haveman, Social and Nonmarket Benefits in an Advanced Economy, in EDUCATION IN 

THE 21ST CENTURY 97, 103-04 (Yolanda K. Kodrzycki ed., 2002). See also, Lochner, Lance, “Nonproduction Benefits of 

Education: Crime, Health, and Good Citizenship, in 4 Handbook of the Economics of Education, Ch. 2 (E. Hanushek, 

S. Machin, and L. Woessmann eds., AMSTERDAM: ELSEVIER SCIENCE, 2011.) 117 Barbara L. Wolfe & Robert H. Haveman, supra note 114 at 103-14. 118 Id. 119 Id. 120 Id. 121 Id. 122 Id. 123 Id. 

30 
 

 

 

 

 

unemployment, and a better economy overall. Public nonmarket returns include higher rates of 

charitable giving and volunteer engagement, reduced social alienation and inequalities, higher 

rates of opposition to government repression, higher rates of membership in community 

organizations, lower crime rates, highervoter engagement and turnout, increased 

democratization, better public health (due to improved diet, fewer smokers, and reduced spread 

of contagious diseases), and less poverty and welfare dependency.124 

To the foregoing it might be added that education is valuable without regard to 

exogenous consequences. The assertion is probably most accurate as it relates to the aims or 

goals of education. A purist might argue that the highest value of education is its impact on the 

mind and on individual autonomy, without regard to private market or public returns. Education 

should expand the mind, thereby allowing the educated to imagine, conceive, and bring to reality 

wholly new ideas, free of intellectual constraint.

125 To inquire about the aims of education is to 

inquire what the finished person ought to be. As a broad general matter, educational aims exhibit 

a duality where the outcomes are perhaps both mutually exclusive and mutually dependent. 

Educational traditionalism focuses on formation, “a process of impressing external standards on 

124 Id. 

Some of these public benefits are felt within the classroom and school: One student's better 

education facilitates her classmates' learning. Others accrue to the neighborhood: Education 

inculcates “behavior norms” in neighbors' children. Other benefits are felt locally: Education 

reduces crime and promotes participation. Still others impact the region: Education levels predict 

a metropolitan area's success. Finally, education generates some externalities that are 

experienced by society as a whole: Schooling is associated with lower probabilities of receiving 

welfare benefits, with technological development, and with economic growth. Perhaps most 

fundamentally, education promotes a “stable and democratic society.” 

Nadav Shoked, The New Local, 100 VA. L. REV. 1323, 1368 (2014). (citations omitted). 125 Education should be “designed to free the whole personality of the learner for the fullest living, for the best and 

most independent exercise of all his powers, for the control of his own destiny. William Heard Kilpatrick, 

Indoctrination and respect for persons, in CONCEPTS OF INDOCTRINATION at 47 (I.A. Snook ed., ROUTLEDGE, 2010) 

31 
 

 

 

 

 

 

students in order to supplant their natural inclinations with prescribed standard behaviors.”126 

Progressivism, on the other hand, seeks to cultivate individual talents with the goal that the 

student attains her own highest potential.127 While traditionalism stresses conformity, by the 

transmission of knowledge previously discovered and adherence to certain social values, 

progressivism encourages individuality by inviting students to expand the universe of knowledge 

through curiosity, inquiry, and imagination. The mutual exclusiveness of these approaches is 

more apparent than real because one must know what is already known before one can 

intentionally expand knowledge. The combination of these two approaches results in what one 

philosopher, relying on Aristotle, calls “education as completion:” 

Education as completion, then, is the process by which humans are instilled with 

the virtues they need in order to realize their nature, perform their function well, 

and thereby lead a flourishing life. Education as completion does not aim at 

making students into something other than what they truly are, but instead uses 

methods of formation to help them realize the capacity they have to become what 

they already essentially are by nature, but while in the process of being educated 

are only in an undeveloped, incomplete way.

128 

Hence, traditionalism and progressivism work together to complete the individual. 

The discussion thus far is useful for a high-minded understanding of what education’s 

finished person should be, but its metaphysical nature makes it hardly useful to an exact 

126 William B. Cohen, Dewey, Aristotle, and Education as Completion, 28 PHIL. EDUC. 669 (2019). 127 

Two schools of thought have governed pedagogical thinking for almost one hundred years: 

traditionalism and progressivism. Traditionalism generally aims at instilling old knowledge in 

young minds—a transmission process best facilitated by enforcing strict rules of conduct for all 

students to follow uniformly. Progressivism, by contrast, generally aims at the gradual 

development of each individual student through project work and the construction of certain 

environments designed to enable students themselves to have direct experiences of what is to 

be learned. 

Id. 

128 Id. at 674. 

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definition of education as it relates to tax exemption. We have a general idea that education 

seeks to cultivate and grow human intellectual capacity -- that source from which all discoveries 

and social advancements proceed. My goal is to better articulate the aims of education towards 

the goal of defining the educational process entitled to tax exemption. Philosophers continue to 

debate the matter, but the debate is largely semantic: 

Many aims have been proposed by philosophers and other educational theorists; 

they include the cultivation of curiosity and the disposition to inquire; the 

fostering of creativity; the production of knowledge and of knowledgeable 

students; the enhancement of understanding; the promotion of moral thinking, 

feeling, and action; the enlargement of the imagination; the fostering of growth, 

development, and self-realization; the fulfillment of potential; the cultivation of 

“liberally educated” persons; the overcoming of provincialism and closemindedness; the development of sound judgment; the cultivation of docility and 

obedience to authority; the fostering of autonomy; the maximization of freedom, 

happiness, or self-esteem; the development of care, concern, and related 

attitudes and dispositions; the fostering of feelings of community, social solidarity, 

citizenship, and civic-mindedness; the production of good citizens; the “civilizing” 

of students; the protection of students from the deleterious effects of civilization; 

the development of piety, religious faith, and spiritual fulfillment; the fostering of 

ideological purity; the cultivation of political awareness and action; the 

integration or balancing of the needs and interests of the individual student and 

the larger society; and the fostering of skills and dispositions constitutive of 

rationality or critical thinking.129 

Ultimately, all these lead to a conclusion that education aims for the betterment of individuals 

and of the society those individuals occupy. 

As a more pragmatic matter, education aims to transmit produced knowledge and to 

transform the educated into a knowledge producer, whose knowledge may, in turn, be 

transmitted.130 Epistemologists define knowledge in a manner very similar to the means 

129 Siegel, Harvey. Philosophy of Education," Encyclopedia Britannica, 27 Sep. 2022, 

https://www.britannica.com/topic/philosophy-of-education. (Accessed 30 October 2022). 130 “It’s common to regard students not only as consumers of expert information but also as apprentices to the 

cognitive communities that produce knowledge.” Emily Robertson, The Epistemic Aims of Education, in THE OXFORD 

HANDBOOK OF PHILOSOPHY OF EDUCATION 11, 12 (Harvey Siegel ed. OXFORD UNIV. PRESS, 2009). 

33 
 

 

 

 

 

 

 

 

employed in law to distinguish between reliable and unreliable evidence from which triers of fact 

may know things. For epistemologist, to know something means to have a justified belief. In 

other words, someone who claims knowledge is ultimately asserting belief and must produce 

evidence such as observation, testimony, memory, reason and the absence of countervailing 

evidence if the belief should be elevated from opinion to knowledge.131 As knowledge stores 

increase, so too does self-132 and societal actualization.133 

 What, then, are the processes by which knowledge is produced and transmitted 

conducive to self- or societal-actualization? If government is for the purpose of producing those 

values, it is only those processes that should be subsidized. The law should not subsidize 

processes that preclude self- or societal-actualization. 

First, subsidized education should require “epistemic virtues and cognitive emotions.”134 

Education should instill in students the desire “to seek good reasons for one’s beliefs . . . 

Associated virtues include open-mindedness, willingness to entertain the views of others, 

responsiveness to criticisms of others, reasonableness, and self-reflectiveness.”135 Second, 

education should instill a desire to know how a belief is justified, and to state the basis of 

justification – testimony, memory, observation, reason, and the absence of countervailing 

evidence.

136 I believe, for example, that planes can travel through the air – I have observed them, 

my observation is corroborated by the testimony of others, and there is no countervailing 

131 Id. at 14 – 19. 132William B. Cohen, supra note 124 at 674. 133 See generally, John Dewey, DEMOCRACY AND EDUCATION: AN INTRODUCTION TO THE PHILOSOPHY OF EDUCATION (NEW YORK: 

MCMILLIAN, 1916). 134 Emily Robertson, supra note 128 at 21. 135 Id. 136 Id. at 16 – 22. 

34 
evidence. Therefore, I know that planes fly.

137 Third, education must require that students 

accept the fallibility of beliefs, however justified those beliefs may be.138 Belief in the fallibility 

of ideas is necessary for critical thinking; critical thinking involves questioning one’s own beliefs 

and the articulated and justified beliefs of others before adopting them as our own.139 One 

doesn’t question beliefs one assumes are infallible.

140 The teaching tools of the educational 

process include presenting testimony (assertion), demonstration (observation and memory), 

hypothesizing (imagination), experimentation (verification), quantitative and qualitative analysis 

(verification), Socratic questioning,141 and logic (reasoning).

142 Finally, education must admit 

that knowledge is not finite; one can never reach the outer limits of all that is knowable, but the 

effort is worthwhile (curiosity and fallibility). 

137 “Knowledge of individual propositions is an abstraction from knowledge in a broader sense that encompasses 

understanding. Understanding requires a holistic grasp of an area that involves seeing the connections among the 

 

 

 

 

 

individual elements – how they fit together to generate an overall pattern or system.” Id. at 19. 138 Jonathan E. Adler, Why Fallibility Has Not Mattered and How it Could, in THE OXFORD HANDBOOK OF PHILOSOPHY OF 

EDUCATION (Harvey Siegel, ed. OXFORD UNIV. PRESS, 2009). 139 “He cannot be taught who is convinced there is no truth to be appropriated or none he does not possess 

already.” Thomas F. Green, Indoctrination and beliefs, in CONCEPTS OF INDOCTRINATION: PHILOSOPHICAL ESSAYS at 39 (I.A. 

Snook, ed. ROUTLEDGE, 2010) 140 Fallibilism is a philosophical theory that holds: 

that all propositions are subject to perpetual testing. And that process of testing, whether it 

takes the form of systematic observation, controlled experiment, logical derivation, or 

probabilistic calculation, must always hold out at least the possibility that prior understandings 

will be displaced. Time, after all, has upset many scientific laws. In short, no matter how elegant 

and coherent the explanation and supportive the current data, we might be wrong. 

Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 Sup. Ct. Rev. 1, 19 (2004). 141 “For teaching, insofar as it involves matters of knowledge and belief, begins with posing questions to be 

answered or answers to be questioned.” Thomas F. Green, supra note 137 at 39. 

Thus teaching involves such activities as telling, questioning, explaining, instructing, informing, 

giving examples, persuading, demonstrating, training, drilling, conditioning, gesturing, setting an 

example, structuring a situation, approving, reproving, correcting, grading and so on. These 

kinds of activity constitute teaching when the agent performs them in order to bring about 

learning. 

Indoctrination as Mis-education, in CONCEPTS OF INDOCTRINATION at 133 (I.A. Snook ed., ROUTLEDGE 2010). 

142 

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appropriate. As a general matter, we might define educational organizations as those employing 

epistemological methods to discover, produce and transmit justified beliefs. At the very least, 

that broad definition would point to a science that defines education with evolving precision and 

according to refereed philosophical consensus.143 This definition, aided by common 

understanding, makes it possible to know what constitutes education, and what does not in most 

cases. For the difficult cases, applicants and deciders could access expert opinion just as occurs 

in other areas where hard factual distinctions are legally required. Hence, we can recognize 

education and explain what makes it such with at least the amount of precision necessary for 

legislative or regulatory articulation. 

Teaching that does not pursue self- or societal-actualization should not be deemed 

education for tax exemption purposes. Nor should activities that generate no public or private 

market and nonmarket returns. Finally, teaching activities that do not pursue justified beliefs 

through epistemological processes should be excluded. These abstractions lend some clarity, but 

We can now define the boundaries of those teaching activities for which public subsidy is 

143 Epistemology is a relatively new term applied to an older science: 

Although the term “epistemology” is no more than a couple of centuries old, the field of 

epistemology is at least as old as any in philosophy. In different parts of its extensive history, 

different facets of epistemology have attracted attention. Plato’s epistemology was an attempt 

to understand what it was to know, and how knowledge (unlike mere true opinion) is good for 

the knower. Locke’s epistemology was an attempt to understand the operations of human 

understanding, Kant’s epistemology was an attempt to understand the conditions of the 

possibility of human understanding, and Russell’s epistemology was an attempt to understand 

how modern science could be justified by appeal to sensory experience. Much recent work in 

formal epistemology is an attempt to understand how our degrees of confidence are rationally 

constrained by our evidence, and much recent work in feminist epistemology is an attempt to 

understand the ways in which interests affect our evidence and affect our rational constraints 

more generally. In all these cases, epistemology seeks to understand one or another kind 

of cognitive success (or, correspondingly, cognitive failure). 

Stanford Encyclopedia of Philosophy, Epistemology, https://plato.stanford.edu/entries/epistemology/#Aca (Apr. 

11, 2020). 

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they are not, by themselves, sufficient. The starting point for a workable definition is to adopt a 

label, if one is available, that captures a teaching activity, but which connotes a purpose as nearly 

opposite to education as possible. That label is “indoctrination.”144 Labels are helpful, though 

not sufficient, to provide general connotation for applicants and deciders – the IRS and in the 

event of a disagreement between applicants and the IRS, the courts. Indoctrination has a known 

connotation, antithetical to education, even if it is sometimes difficult to distinguish from 

education. For present purposes, it is also important to note that indoctrination is a contentneutral concept.

145 It is a phenomenon that is capable of identification without regard to any 

particular subject or viewpoint. 

In fact, “indoctrinate” has been nearly synonymous with “educate” for most of the history 

of the English language.146 In the early 1900s, especially after America’s involvement in World 

War I, the term began to be more often associated with authoritarianism and political tyranny.147 

John Dewey, the progressive educationalist, defined indoctrination as “the systematic use of 

every possible means to impress upon the minds of pupils a particular set of political and 

economic views to the exclusion of every other.”148 This definition implies what we know 

intuitively, a kind of hijacking of the mind to the indoctrinator’s way of thinking and in opposition 

144 In older texts, “indoctrinate” is viewed almost synonymously with “teaching.” Brian S. Crittenden, 

Indoctrination as Mis-education, in CONCEPTS OF INDOCTRINATION at 144 (I.A. Snook ed., ROUTLEDGE 2010). Other 

sources, like the Cambridge Dictionary defined indoctrination as “the process of repeating an idea or belief to 

someone until they accept it without criticism or question.” Indoctrination, CAMBRIDGE DICTIONARY, 

https://dictionary.cambridge.org/us/dictionary/english/indoctrination. 145 Id. 146 “It may be surprising to many that little over half a century ago the employment of ‘indoctrination’ was no more 

offensive in educational circles than the use of ‘education.’ Indeed, the two terms were practically synonymous.” 

Richard H. Gatchel, The evolution of the concept, in CONCEPTS OF INDOCTRINATION at 9 (I.A. Snook ed. ROUTLEDGE 2010). 

See also, Kilpatrick, supra note 128. 147 Richard H. Gatchel, supra note 144, 12 – 16. 148 THE LATER WORKS OF JOHN DEWEY, VOLUME 11, 1925 – 1953, at 425 (Jo Ann Boydston, ed. S. ILL. UNIV. PRESS, 1987) 

37 
 

 

 

to self-actualization. America’s wars against national socialism in Germany, and fascism in Italy 

further contextualized the word until it came to mean something entirely bad, the “antithesis of 

education.”149 Its meaning was especially influenced by geopolitical competitions between 

nations: “Indoctrination, however, is fundamentally and essentially undemocratic. It intends to 

anticipate choice. It inherently uses the individual as a means to an end, and this danger is 

present wherever any type of authoritarianism prevails.”150 Hence, indoctrinate, as an action 

verb involves an attack on autonomy, self-actualization, and freedom.

151 It “aims simply at 

establishing certain beliefs so that they will be held quite apart from their truth, their explanation, 

or their foundation in evidence.”152 When employed against individuals, indoctrination aims to 

instill unalterable beliefs that control behavior. Carter G. Woodson once observed: 

When you control a man's thinking you do not have to worry about his actions. 

You do not have to tell him not to stand here or go yonder. He will find his 'proper 

place' and will stay in it. You do not need to send him to the back door. He will go 

without being told. In fact, if there is no back door, he will cut one for his special 

benefit. His education makes it necessary.153 

When used by nation-states, indoctrination aims to consolidate power, engender complete trust 

in and devotion to leaders, and eradicate criticism, dissent, and disbelief.154 

149 Richard H. Gatchel, supra note 144, at 14. (“Increasingly educational leadership came to view indoctrination as 

the antithesis of education for life in a democracy.”) 150 William H. Kilpatrick, Education of Adolescents for Democracy, 14 Religious Educ., at 130 (1919) 151 Indoctrination is a “violation of the autonomy to which all persons within some wide range of normal cognitive 

functioning are rightfully entitled, irrespective of substantial differences in intellectual endowment among those 

within the range.” Eamonn Callan and Dylan Arena, Indoctrination, in THE OXFORD HANDBOOK OF PHILOSOPHY OF 

EDUCATION, at 118 (Harvey Siegel, ed., OXFORD UNIV. PRESS, 2009). 152 Thomas F. Green, Indoctrination and beliefs, in CONCEPTS OF INDOCTRINATION at 25-26 (I.A. Snook ed., ROUTLEDGE 

2010) 

153 Carter G. Woodson, THE MISEDUCATION OF THE NEGRO, at 21 (ClearWords.org, 2009). 154 The political philosopher and holocaust survivor Hannah Arendt once described the effect of indoctrination 

thusly: 

A mixture of gullibility and cynicism had been an outstanding characteristic of mob mentality 

before it became an everyday phenomenon of masses. In an ever-changing, incomprehensible 

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To put the matter in terms of our definition, indoctrination’s purpose is imparting nonevidential, fiercely held beliefs.

155 Where education seeks fallible but evidential belief, 

indoctrination seeks unquestionable and unalterable beliefs. Indoctrination aims at intellectual 

enslavement as a means of individual control. “Education as contrasted with indoctrination, is 

said to be a process of teaching pupils how to think, rather than what to think.”156 In its broadest 

sense, indoctrination is aimed at gaining control over political and public institutions comprising 

government. Hence, indoctrination has no value to individuals or society, at least not values 

consistent with a society that endorses “life, liberty and the pursuit of happiness.” 

Philosophers continue to debate and elaborate on the “how” of indoctrination. They 

seek linguistic clarity, limiting the term to teaching activities that have a certain aim, employ 

certain methods, or intend certain doctrinal beliefs.157 While some philosophers limit the use of 

indoctrination to the teaching of “doctrines,” others focus on the aims and methods of 

indoctrinators without regard to the subject matter being taught.158 Ultimately, though, they 

world the masses had reached the point where they would, at the same time, believe everything 

and nothing, think that everything was possible and that nothing was true. The mixture in itself 

was remarkable enough, because it spelled the end of the illusion that gullibility was a weakness 

of unsuspecting primitive souls and cynicism the vice of superior and refined minds. Mass 

propaganda discovered that its audience was ready at all times to believe the worst, no matter 

how absurd, and did not particularly object to being deceived because it held every statement to 

be a lie anyhow. The totalitarian mass leaders based their propaganda on the correct psychological 

assumption that, under such conditions, one could make people believe the most fantastic 

statements one day, and trust that if the next day they were given irrefutable proof of their 

falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to 

them, they would protest that they had known all along that the statement was a lie and would 

admire the leaders for their superior tactical cleverness. 

Hannah Arendt, THE ORIGINS OF TOTALITARIANISM, at 382 (Harcourt Brace Javanovich, 1951). 155 “A belief is held non-evidentially when it is held quite apart from any reasons, evidence or canons for testing 

reasons and evidence.” Thomas F. Green, supra note 137 at 36. 156 R. Roderick Palmer, Education and Indoctrination, 34 Peabody J. Educ. 224, 226 (1957). 157 See John Wilson, Indoctrination and Freedom, in CONCEPTS OF INDOCTRINATION at 102 - 103 (I.A. Snook ed. 

ROUTLEDGE, 2010). 158 Id. 

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agree that indoctrination is a teaching method that renounces justified belief as the ultimate 

outcome. In fact, with indoctrination “belief” necessarily precedes justifications. The best 

indicator of indoctrination are preordained beliefs, for which only evidence in support, whether 

that evidence is real or contrived, is presented. That is, belief invariably precedes evidence. 

Education and indoctrination, then, can be objectively distinguished by content-neutral 

standards requiring the presence or absence, respectively, of unbiased epistemological methods 

preceding knowledge. Education does not require that every epistemological method be 

employed, nor does indoctrination require the absence of every method. The distinction must 

necessarily be based on whether objectively applied epistemological methods preponderate the 

teaching. In the remaining portion of this section, I compare the ideas developed here to the 

definition of education under current law and then offer regulatory language to better 

implement the ideas in this section. 

Congress has never defined education for tax exemption purposes, instead leaving that 

task to the Treasury Department.159 The regulation seemingly follows the analysis offered in this 

section; a general rule defines education broadly and a specific rule (or rules) apparently excludes 

what might be considered indoctrination. Education is: 

(a) The instruction or training of the individual for the purpose of 

improving or developing his capabilities; or 

(b) The instruction of the public on subjects useful to the individual and 

beneficial to the community. 

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 

159 For a general history of the exemption of educational organizations see Tommy F. Thompson, The Availability of 

the Federal Tax Exemption for Propaganda Organizations, 18 U.C. DAVIS L. REV. 487, 496 – 505 (1985). 

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form an independent opinion or conclusion. On the other hand, an 

organization is not educational if its principal function is the mere 

presentation of unsupported opinion.160 

Thus, parts (a) and (b) define education as a matter of self- or societal-actualization, respectively. 

The next part of the regulation expresses the “full and fair exposition” test. The last sentence 

could be interpreted as excluding organizations that present non-evidential or unjustified belief, 

but only if the organization “advocates a particular position or viewpoint.” This interpretation is 

supported by assuming that the last sentence only clarifies the preceding sentence. If it is 

intended to exclude indoctrination, it does so only regarding the advocacy of “particular positions 

or viewpoints,” whatever that means. Or, the last sentence could be interpreted to categorically 

exclude any organization, if the organization presents “mere” unjustified beliefs. This 

interpretation is supported by reading the last sentence as a comment on the general definition 

of education in parts (a) and (b). If we broaden the inquiry, by reference to predecessor language, 

it seems most likely that the specific rule concerns political indoctrination.

161 The predecessor 

regulation provided: 

160 Treas. Reg. 1.501(c)(3)-(1)(d)(3) (1959). 161 Professor Thompson lays out a convincing case that the Treasury Department initially sought to exclude all 

propaganda organizations, regardless of whether their propaganda was related to politics. Tommy Thompson, The 

Availability of the Federal Educational Tax Exemption for Propaganda Organizations, 18 U.C. DAVIS L. REV. 487, 498 

(1985). Treasury apparently defined “propaganda” the way I define “indoctrination” – i.e., imparting unjustified 

[non-evidential] beliefs designed to achieve the indoctrinator’s goals rather than the student’s: 

Initially, Treasury attempted to exclude all propaganda organizations from exemption, because 

when providing for deductibility of contributions to educational organizations, Congress did not 

intend to encourage the dissemination of ideas in support of one doctrine as against another. 

Thus, Treasury attempted to distinguish between ‘true education’, which is directed at and for 

the benefit of the individual, and propaganda, which is directed at the individual only as a means 

to accomplish the purpose of the organization instigating it. The position was applied to all forms 

of propaganda, with no attempt to distinguish among organizations based upon the perceived 

desirability of the position advocated. 

Id. After losing in the courts, Treasury retreated from its initial position and eventually adopted the current 

regulation that appears limited to political indoctrination. Id. 

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An organization formed, or availed of, to disseminate controversial or partisan 

propaganda is not an educational organization within the meaning of the Code. 

However, the publication of books or the giving of lectures advocating a cause of 

a controversial nature shall not of itself be sufficient to deny an organization the 

exemption, if carrying on propaganda, or otherwise attempting, to influence 

legislation forms no substantial part of its activities, its principal purpose and 

substantially all of its activities being clearly of a nonpartisan, noncontroversial, 

and educational nature.162 

It is unclear why the drafters considered political speech presumptively outside the 

definition of education, but that conclusion is consistent with an early connotation of 

indoctrination as a phenomenon associated with the pursuit of political power,163 especially 

during the years after World War I.164 Perhaps the drafters were concerned with indoctrination 

but considered it antithetical to education only as it related to political speech. If that is the case, 

the current language is almost entirely superfluous because Congress has since adopted rather 

specific limitations on political speech by exempt organizations.

165 In effect, Congress has 

determined that political activity is not within the definition of charity and that its substantial 

occurrence will disqualify an organization’s charitable status.166 The only part of the education 

162 Treas. Reg. 94, Art. 101(6)-1 (1936) 163 See supra notes 159. 164 Id. 165 The exclusion of organizations whose purpose is the dissemination of controversial or partisan propaganda was 

first introduced in 1919. David A. Brennen, Darryll K. Jones, Beverly I Moran, and Steven J. Willis, THE TAX LAW OF 

CHARITIES AND OTHER EXEMPT ORGANIZATIONS, 385 (4th ed. Carolina Academic Press 2021). A prohibition against 

lobbying that is more than an insubstantial part of an organization’s activities has been in existence ever since. Id. 

The prohibition first appeared in statutory form in 1934. Id. In 1976 Congress sought to quantify the amount of 

permissible lobbying activity by enacting IRC 501(h). Id. In 1954, Congress enacted current law under which an 

exempt organization is completely prohibited from participating in any campaign. Id. at 409. See IRC 501(c)(3). 

166 An organization that violates the “no substantial lobbying” prohibition or the prohibition against participating in 

campaigns is referred to as an “action” organization. Treas. Reg. 1.501(c)(3)-1(c)(3) (1959). In addition, though, an 

organization whose goal or purpose is only attainable by legislation is not exempt if it “advocates, or campaigns 

for, the attainment of such main or primary objective or objectives as distinguished from engaging in nonpartisan 

analysis, study, or research and making the results thereof available to the public.” Id. In determining whether an 

organization advocates and campaigns for a result, or engages in nonpartisan research, the Service states that it 

will consider “all the surrounding facts and circumstances, including the articles and all activities of the 

organization. Id. This third type of organization seems very much like the organization excluded under the “full 

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regulation imposing something not required by the political activity regulations is that otherwise 

undefined “advocacy” organizations must utilize full and fairly expository methods, and eschew 

propaganda. 

For present purposes, I consider the differences between “propaganda” and 

“indoctrination” only matters of degree. Propaganda is indoctrination that seeks mass 

adherence.167 Both seek to determine for the listener what he or she should think, rather than 

how to think, but propaganda is explicit about the belief the listener should steadfastly hold.168 

Indoctrination seeks the same outcome but is not explicit regarding the desired belief; with 

indoctrination, the listener thinks the desired belief is the result of his own independent 

thinking.

169 Finally propaganda is the abuse of power through domination, indoctrination 

through manipulation.170 Thus, vague though its regulatory articulations may be, Treasury 

apparently sought an epistemological distinction between education and indoctrination.

171 

and fair exposition” language of the education regulation except the full and fair exposition test is not limited to 

educational organizations whose purpose can only be achieved by legislation. Supra note ____. 167 I therefore conclude that the Service’s early efforts to define “education” sought to exclude indoctrination. 

Supra note 159. 

Any modem propaganda will, first of all, address itself at one and the same time to the individual 

and to the masses, it cannot separate the two elements. For propaganda to address itself to the 

individual, in his isolation, apart from the crowd, is impossible. The individual is of no interest to 

the propagandist; as an isolated unit he presents much too much resistance to external action . . 

. any propaganda aimed only at groups as such — as if a mass were a specific body having a soul 

and reactions and feelings entirely different from individuals' souls, reactions, and feelings — 

would be an abstract propaganda that likewise would have no effectiveness. Modern 

propaganda reaches individuals enclosed in the mass and as participants in that mass, yet it also 

aims at a crowd, but only as a body composed of Individuals. 

Jacques Ellul, PROPAGANDA: THE FORMATION OF MEN’S ATTITUDES at 10 (VINTAGE BOOKS, 1964). 168 “Propaganda is involved when it is made explicit to the recipient what it is the sender wants him to do or think, 

whereas indoctrination is involved when this has not been made explicit to him.” Pertti Hemánus, (1974). 20 

Propaganda and Indoctrination; a Tentative Concept Analysis, 215, 217 GAZETTE (Leiden, Netherlands) (1974). 169 Id. 170 Id. at 215. 171 Tommy Thompson, supra note 158 at 506, quoting Prop. Treas. Reg. §1.501(c)(3)-1(c), 21 Fed. Reg. 460, 464 

(1956). 

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4. 

The DC Circuit Court of Appeals considered the vagueness intolerable and declared the 

current regulation unconstitutional.

172 The Court, in Big Mama Rag vs. United States, explained 

that the definition’s vagueness inevitably chilled speech because organizations might stop 

speaking for fear of not be considered educational.

173 It also noted that in the absence of 

objective criteria, government agents could only rely on their own subjective views in 

determining whether an opinion was unsupported, or a viewpoint was subject to full and fair 

exposition.174 Undeterred, the Treasury Department attempted to salvage the regulation by 

adopting an incomplete and somewhat faulty epistemological approach referred to as the 

“methodology test:”175 

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. 

The approach used in the organization's presentations is not aimed at 

developing an understanding on the part of the intended audience or 

readership because it does not consider their background or training in the 

subject matter. 

172 Big Mama Rag v. United States, 631 F.2d 1030 (D.C. Cir. 1980). Even so, the Treasury Department has never 

revoked or withdrawn the regulation. 

173 Id. at 1035. 174 Id. (“the [vagueness] doctrine is concerned with providing officials with explicit guidelines in order to avoid 

arbitrary and discriminatory enforcement. . . Laws that have failed to meet this (vagueness)standard are, almost 

without exception, those which turn on language calling for the exercise of subjective judgment, unaided by 

objective norms.”). 

175 Rev. Proc. 86-43; 1986-2 C.B. 729. 

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There may be exceptional circumstances, however, where an organization's 

advocacy may be educational even if one or more of the factors listed in section 

3.03 are present. The [Internal Revenue] Service will look to all the facts and 

circumstances to determine whether an organization may be considered 

educational despite the presence of one or more of such factors. 

The methodology test received tepid endorsement, at best. The same court that declared the 

regulation unconstitutional declined to state whether the methodology test cured the 

regulation’s vagueness, remarking only that the test reduced the constitutional infirmity.

176 On 

the other hand, the Tax Court fully adopted and has applied the test to deny tax exemption on 

three separate occasions.177 

Nevertheless, the methodology test suffers from the same constitutional problems 

plaguing the regulation it purports to rescue. The test indicates that in all but exceptional cases 

the presence of any one factor will prove an organization is not educational. But three factors 

require the government to be the arbiter of truth, or the protector of individual sensibilities 

based on an examiner’s subjective viewpoints. The first and second factor allow the government 

to deny educational exemption if it believes the facts presented are “unsupported” or 

“distorted.”178 The third factor allows the government to deny tax exemption if the language is 

176 National Alliance, 710 F.2d at 875 (D.C. Cir. 1983). (“[A]pplication by IRS of the Methodology Test would move in 

the direction of more specifically requiring, in advocacy material, an intellectually appealing development of the 

views advocated. The four criteria tend toward ensuring that the educational exemption be restricted to material 

which substantially helps a reader or listener in a learning process. The test reduces the vagueness found by 

the Big Mama decision.”) 177 Families Against Government Slavery v. Commissioner, T.C. Memo. 2007-49, 93 T.C.M. (CCH) 958 (organization 

teaching that FBI enslaved Hollywood celebrities sometimes with the forced participation of minority women on 

welfare is not educational because of reliance on “unsupported opinion”); Nationalist Foundation v. Commissioner 

of Internal Revenue, T.C. Memo. 2000-318, 80 T.C.M (CCH) 507 (hate group denied tax exemption because 

methods were not “educational” as required by methodology test); Nationalist Movement v. Commissioner of 

Internal Revenue, 102 T.C. 558 (1994) aff’d 37 F.3d 216 (5th Cir. 1994) (same). 178 The Constitution’s guarantee of free speech means that government may not be “the arbiter of truth.” National 

Alliance, 710 F. 2d at 873-74. See generally Catherine J. Ross, Ministry of Truth: Why Law Can’t Stop 

Prevarications, Bullshit, and Straight-Out Lies in Political Campaigns, 16 FIRST AMEND. L. REV. 367 (2017). “The first 

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“disparaging,”179 “inflammatory,” or indicative of strong “emotion” rather than objective 

analysis.180 

None of the regulation’s variables are capable of objective determination. It is possible, 

though, to fix the methodology test so that it is true to its original intent – discerning education 

from indoctrination – without reference to viewpoint or reliance on subjectivity. We know that 

teaching people to hate other people is not charity, and indoctrination is not education, but we 

seem dumbfounded when faced with the requirement to adequately define and express those 

known things. Thus, I propose the following in place of the current regulation (“the proposal”): 

1.501(c)(3)-1(d). Education means a teaching activity in which epistemological 

methods are objectively employed to achieve intellectual goals. 

1) Epistemological methods include the unbiased use of: 

(a) lectures or presentations, scholarly papers, news reports, fiction, or 

non-fiction literature, and the like, 

(b) observation, demonstration, immersive experience, and the like, 

(c) research, expository writing, debate, experimentation, collaboration, 

and the like, 

(d) logical reasoning, critical thinking, argumentative construction or 

deconstruction, and the like, and 

(e) problem solving, case analysis 

Whether an organization is educational will depend on an overall consideration of 

all the teaching methods. An organization must objectively employ at least one 

epistemological method but need not employ any higher number of methods. Nor 

is an organization required to use an equal number of methods supporting 

different propositions. An organization must, to a reasonable extent of its 

danger to liberty lies in granting the State the power to examine publications to determine whether or not they are 

based on some ultimate idea and, if so, for the State to classify them.” Rosenberger v. Rector and Visitors of the 

University of Virginia, 515 U.S. 819, 835 (1995). 

179“Inflammatory” and “disparaging” are so inherently vague as to hardly warrant further analysis. See Matal v. 

Tam, ___ U.S. ____, 137 S.Ct. 1744 (2017) (Lanham Act’s “disparagement clause” declared unconstitutional 

because “speech may not be banned on the ground that it expresses ideas that offend” and, in any event, 

“disparagement” is unconstitutionally vague.) 

180 Although “fighting words” and defamatory speech may not be protected under the First Amendment, it goes 

too far to suggest that all emotive speech has no First Amendment value. See R. George Wright, An Emotion-Based 

Approach to Freedom of Speech, 34 LOY. U. CHI. L.J. 429 2002-2003. And of course, whether 

46 
 

 

resources, utilize an objective, unbiased pedagogy designed to foster the 

discovery of justified belief rather than the confirmation of pre-determined 

propositions or unjustified beliefs. 

2) Intellectual goals include: 

(a) Increasing knowledge, comprehension, and understanding 

(b) Promoting independent thinking, curiosity, and exploration 

(c) Acknowledging fallibility and employing critical thinking, 

(d) Increasing subject matter fluency 

(e) Promoting the social dispersion of all or any of the above 

3) Indoctrination is not education. Indoctrination should be understood by reference 

to its contemporary usage but in all cases is characterized by the selective use of 

methods, epistemological or not, to impart predetermined beliefs without regard 

to epistemic justification. While indoctrination most often uses methods that 

excessively repeat a single proposition, or intentionally ignore or exclude evidence 

contrary to a proposition, the Service will consider all facts and circumstances to 

determine whether a teaching activity constitutes indoctrination rather than 

education. Indoctrination is not determined by whether a belief is true, a topic is 

“controversial,” or the teaching method relies on emotive language. 

Indoctrination refers only to whether a teaching activity is designed to impart nonevidential beliefs. 

 

 4) Exemption shall not be denied on the basis that an organization described below engages 

in indoctrination: 

(a) an organization which normally maintains a regular faculty and 

curriculum and normally has a regularly enrolled body of pupils or 

students in attendance at the place where its activities are regularly 

carried on. 

(b) an organization whose primary purpose is teaching literary, 

performing, or visual arts, athletic performance, vocational skills, 

or religion. 

A few comments are appropriate to conclude Section III. First, the proposal is consistent 

with the Service’s early instinct that “propaganda” is not education and its efforts to articulate 

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that instinct.181 The proposal is bereft of subject-matter or content references, except to the 

extent the proposal makes it easier to achieve exemption for the arts, athletic performance, 

vocational skills, and religious teaching activities. I allow for indoctrination regarding those 

activities, without intending to discount their value or the intellectual power necessary to their 

understanding, because their accomplishment often depends on mastery of physical and 

intellectual skill combined, in the case of athletic performance and vocational training, or there 

are simply no truths to be discovered in the epistemological sense, as in the case of the arts and 

religion. In those cases, there is only either opinion or faith. I do not intend the proposal to 

judge intent, except insofar that a consideration of the reasonably anticipated outcome of any 

epistemological method suggests a purpose other than discovery of justifiable beliefs. I also think 

it helpful that the trier of fact has linguistic reference points. I intentionally used words the 

philosophical meaning of which have been the subject of extensive study and scholarship. The 

overall purpose is distinguishing between two different things – education and indoctrination – 

so the articulation of that effort should employ semantics that best capture the distinction 

whether by denotation or connotation. 

Finally, I put “schooling” in a separate category because I do not hold that indoctrination 

in formal schools denies individuals or society the benefits of education. A formal school may not 

be denied exemption on the basis that it engages in indoctrination. I do not intend, by this 

exception, that we should intentionally encourage indoctrination in schools, colleges, 

universities, and similar institutions. Instead, I want to avoid the whole legitimate debate 

181 Supra notes 159 - 169 and accompanying text. 

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regarding whether formal institutions educate or indoctrinate.182 I acceptthat schooling is a form 

of indoctrination, most often for the perpetuation of certain morals, political beliefs, and social 

standards deemed fundamental even in a pluralistic society.

183 I assume that schools otherwise 

employ enough unbiased epistemological methods that they would be worthy of exemption in 

any case.184 Most private schools in the United States, perhaps by necessity in some cases,

185 

follow a teaching model prevailing throughout public education. It would be anomalous to 

consider private schools unworthy of exemption when their directly subsidized counterparts are 

largely indistinguishable. 

IV. FREE SPEECH INCANTATIONS 

I was admittedly incredulous upon learning that scholars could not articulate an analysis 

by which “charity” and “education” proscribe tax exemption for stochastic terrorists. I thought 

scholars were being indolent and that their indolence resulted from their having little at stake 

since none of the scholars were people of color. I happily admit my error. It is not that sloven 

minds truly believe hate groups are charities or that they really educate, it is that they find no 

justification for denying tax exemption to hate groups other than that government – we the 

182 See generally R. Roderick Palmer, Education and Indoctrination 34 PEABODY J. EDUC. 224 (1957). 183 Id. 184 My proposal is not intended to cause revocation if an organization engages in less than substantial 

indoctrination. See Better Business Bureau v. United States, 326 U.S. 279 (1945). (A non-exempt purpose will 

cause denial or revocation of tax exemption only if it is a “substantial” part of the organization’s activities). 185 It is worth mentioning that Title VI and IX condition federal benefits on private institutions’ compliance with 

federal anti-discrimination requirements to which public institutions are already subject. 42 U.S.C. § 2000d (1964) 

(Title VI, prohibiting discrimination with respect to any federally funded program); 42 U.S.C. § 2000d-1 (1964) (Title 

VI, requiring denial of federal benefits to institutions that discriminate); 20 U.S.C. §1681 (1972) (Title IX, prohibiting 

discrimination with respect to educational institutions receiving federal funds); 20 U.S.C. §1682 (1972) (Title IX, 

requiring denial of federal benefits to educational institutions that discriminate). These laws obviously indicate 

that Congress seeks to preclude all federal benefits from organizations that practice discrimination. I do not 

assert, though, that they resolve the free speech concerns discussed below. 

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people – despise their ideas. Scholars know and understandably cringe from the real reason for 

denying tax exemption to hate groups. The short answer is to admit that real reason and then 

prove that government may oppose but not prohibit any non-constitutionally endorsed idea. 

When government engages in permissible activity, and does not directly prohibit speech, it need 

not act neutrally with respect to the activities or speech it subsidizes. This section resolves what 

turns out to be legitimate concern with denying tax exemption because we despise ideas. 

 

a. Vagueness and Expressive Conduct 

Vagueness is concerned with notice sufficient to ensure that people can go about their 

lives with reasonable confidence that they are neither violating the law, running afoul of any 

restriction, nor will they be arbitrarily adjudged to have done either.

186 Thus, vagueness is 

primarily a due process concern.187 Part of going about our lives, though, includes the exercise 

constitutional rights, including free speech. When a law is so indeterminate that average people 

are uncertain whether to speak or what to say – when speech is chilled – the violation is not a 

First Amendment one, but a due process one.188 Government is not making a direct assault on 

speech so a heightened bar to constitutionality is unnecessary.

189 In most instances, government 

is not concerned about speech at all, but rather an activity generally considered objectionable 

186 See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960). 187 Id. citing Champlin Ref. Co. v. Corporation Comm'n, 286 U.S. 210, 243 (1932). 188 “[T]he doctrine of unconstitutional indefiniteness has been used by the Supreme Court almost invariably for the 

creation of an insulating buffer zone of added protection at the peripheries of several of the Bill of Rights 

freedoms.” Note, supra note ___ at 75. See, e.g., Minnesota Voters Alliance v. Mansky, ____ U.S. ____, 138 S. Ct. 

1876 (2019) (Minnesota has legitimate interest in preserving its polling places for intended use but ban on 

“political” buttons or stickers near polling place was unconstitutionally vague thus infringing free speech rights). 189 Id. at ____, 138 S. Ct. at 1888 (state must articulate a “sensible” distinction between what is allowed and what 

is not, and whatever interpretive discretion vested on enforcement must “be guided by objective, workable 

standards.”) 

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under certain circumstances – burning “stuff” (a flag, maybe) in a public place, or protesting at 

But the government has an interest in regulating fires. Striking that balance in government’s 

favor seems appropriate, apparently, because doing so does not entirely foreclose whatever 

speech is impacted. If government banned privately set fires altogether, war protestors and 

funerals – that implicates speech.

190 Government has the right to regulate conduct.191 To 

survive a vagueness challenge when doing so, government need only speak in a manner that is 

comprehensible so the ordinary person is neither burdened by uncertainty nor subjected to the 

enforcer’s unlimited discretion. 192 In contrast to strict scrutiny review applied to determine the 

constitutionality of direct speech prohibitions, vagueness review is said to be “forgiving.”193 

The jurisprudence regarding expressive conduct, like the vagueness doctrine, seeks the 

right balance between government’s right to regulate conduct and people’s rights to nonverbal 

communication. Thus, a protestor has a right to burn a draft card194 or an American flag195 to 

express war opposition. A racist even has the right to burn a 30-foot cross to express hatred.196 

190 But when a statute directly concerns speech, the Court has sometimes applied an undefined heightened level of 

scrutiny. See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (Government has the right to regulate the 

dissemination of pornography to children but “the [vagueness and resulting] breadth of this content-based 

restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive 

provision would not be as effective as the [ Communication Decency Act].” More recently, though, the Court 

stated that “[P]erfect clarity and precise guidance have never been required even of regulations that restrict 

expressive activity.” Minnesota Voters Alliance, ____ U.S. at ____, 138 S. Ct. at 1891 (2019). 191 Cox v. Louisiana, 379 U.S. 559, 563 (“The conduct which is the subject of this statute—picketing and parading— 

is subject to regulation even though intertwined with expression and association.") (1965). 

192 Holder v. Humanitarian Law Project, 561 U.S. 1, 18 (210) (“A conviction fails to comport with due process if the 

statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited 

or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”) 

The Court recently referred to this standard as a “forgiving test.” Minnesota Voters Alliance, ____ U.S. at ____, 

138 S. Ct. at 1891 (2019). A different test applies, though, to “expressive conduct.” I address that test below. 

Supra note ___ and accompanying text. 193 Minnesota Voters Alliance, ____ U.S. at ____, 138 S. Ct. at 1891. 194 United States v. O’Brien, 391 U.S. 367 (1968). 195 Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). 196 Virginia v. Black, 538 U.S. 343 (2003); R.A.V. v. City of St. Paul Minnesota, 505 U.S. 377 (1992). 

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racists would not be prevented from otherwise expressing their sentiments. Government need 

only show that the incidental burden on the expressive part of conduct is permissible for an 

“important” or “substantial” purpose, and the impact on speech is only as much as is essential to 

accomplish the purpose.197 

Education is nothing if not expressive conduct. It is an activity in which government has 

an important or substantial interest, and its accomplishment expresses ideas. Government may 

thus legislate about education if it does so in comprehensible language and without regard to 

viewpoint.

198 It may require a mathematics teacher in a public school discuss algebra or calculus 

and refrain from discussing art history. 

If the methodology test “tends” toward clarity,199surely the proposal in Section III cures 

the vagueness complained about in Big Mama Rag. Ultimately, even that determination – 

197 United States v. O’Brien, 391 U.S. 367, 377 (1968). Justice Thomas’ recently explained an important 

qualification: 

Although this Court sometimes reviews regulations of expressive conduct under the more lenient 

test articulated in O'Brien, that test does not apply unless the government would have punished 

the conduct regardless of its expressive component. Here, however, Colorado would not be 

punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because 

he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases 

like this one, our precedents demand “the most exacting scrutiny.” 

Masterpiece Cakeshop Limited v. Colorado Civil Rights Commission, ____ U.S. ____, 138 S.Ct. 1719, 1746 (2020) 

(Thomas, J. concurring in part and in the judgement) (citations omitted). Masterpiece involved compelled speech 

in the sense that the state sought to force a baker to say something he did not want to say in service of the state’s 

efforts to prohibit discrimination in public accommodations. Id. The expressive conduct cases Justice Thomas 

cited involved flag burning and providing material support to “terrorist organizations.” Id. citing Texas v. Johnson, 

491 U.S. 397, 412 and Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). Taken together, the cases 

indicate that the state may proscribe conduct but only without regard to ideas expressed in intertwined speech. 

It’s easy to see that those cases are not really sanctioning conduct if the conduct is permissible so long as a certain 

message is avoided or conveyed. If the permissibility of the conduct depends on the message, the law regulates 

message, not conduct. 198 I note in passing that the requirement that laws be understandable to persons of ordinary intelligence obviously 

cannot be taken literally. There are just too many indecipherable provisions in the Tax Code or in the 1933 

Securities Act for that to be a literal requirement. 

199 See supra note 174 and accompanying text. 

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whether the proposal is “vague” – must be a subjective one, constrained perhaps by similarly 

worded precedents. Suffice to say, the proposal provides a level of notice typical of existing tax 

regulations and provides objective standards constraining arbitrary or subjective enforcement. 

Since the proposal would apply regardless of subject matter, the proposal is content neutral and 

thus not subject to strict scrutiny. 

Is charity expressive conduct? Whether charity inherently excludes hate groups is a bit 

more complicated, surprisingly. The question is more difficult to answer as a normative matter 

because the Supreme Court has prejudiced the outcome by judicial proclamation. I can easily 

conclude that charity is not “vague” in the constitutional sense because the broadness of the 

term encourages rather than discourages speech. Recall that vagueness is fatal when it 

discourages speech and leaves enforcement to an official’s subjective opinion. Given that nearly 

any legal purpose can be labeled charity, and the 400 years of legislative and judicial 

interpretation of the word “charity,”200 it would be almost impossible to make that case.201 

Regardless, the charitable definition is not one that an ordinary person would find 

incomprehensible. By excluding hate from the definition of charity, is the law content-based, 

202 and thus subject to strict scrutiny rather than the “forgiving” O’Brien test? If that were the 

case, Bob Jones can only mean – by judicial proclamation – that denying exemption to hate 

200 Supra note 79 and accompanying text. In determining whether legislative language is vague, courts should 

consult “authoritative constructions” of the legislation. Forsyth County v. Nationalist Movement, 505 U.S. 123 

(1992). 

201 In National Endowment for the Arts v. Finley, the Supreme Court considered whether a provision requiring the 

National Endowment for the Arts “take into consideration general standards of decency and respect for the 

diverse beliefs and values of the American public” when making funding decisions. 524 U.S. 569, 588 (1998). The 

Court admitted that the provision is “undeniably opaque, and if they appeared in a criminal statute or regulatory 

scheme, they could raise substantial vagueness concerns. It is unlikely, however, that speakers will be compelled to 

steer too far clear of any “forbidden area” in the context of grants of this nature.” Id. 202 See supra note 191-92. 

53 
 

 

 

 

groups survives strict scrutiny. Incidentally, I agree with but find no refuge in the argument that 

charity excludes the act of discrimination and therefore need not implicate speech. I think it 

honest to admit that discrimination – at least as practiced by hate groups – is accomplished 

primarily by speech. But the charitable regulations proscribe acts that “increase prejudice and 

discrimination.”203 It may be a close call, but “increasing prejudice and discrimination” is an 

activity that can be accomplished by all sorts of speech, not just hate speech. Thus, excluding 

hate groups because their purpose is to increase prejudice and discrimination does not require 

the conclusion that charity is defined by reference to speech content. To be charitable, the result 

must not be an increase in discrimination or prejudice (or a denial of human or civil rights), 

whatever the content of speech used to achieve that result. In fact, once government identifies 

an outcome that it may validly proscribe, it may just as validly identify expressive activities most 

likely to bring about the outcome and prohibit only those activities.

204 

There is a less obvious but just as important vagueness concern regarding the judicial 

definition of charity as it relates to hate groups. Scholars often correctly rely on Bob Jones to 

203 See supra note 96 and accompanying text. 204 In Virginia v. Black, Virginia prohibited “cross-burning with intent to intimidate.” 538 U.S. 343 (2003). 

Defendants argued that the prohibition constituted content-based discrimination because it singled out cross 

burning as a communicative activity capable of intimidation. The Court determined that Virginia legitimately 

proscribed intimidation and, having done so could validly discriminate between expressive activities tending to 

bring about the proscribed result: 

The First Amendment permits Virginia to outlaw cross burnings done with the intent to 

intimidate because burning a cross is a particularly virulent form of intimidation. Instead of 

prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating 

messages in light of cross burning's long and pernicious history as a signal of impending violence. 

Thus, just as a State may regulate only that obscenity which is the most obscene due to its 

prurient content, so too may a State choose to prohibit only those forms of intimidation that are 

most likely to inspire fear of bodily harm. 

Id. at 361-62. 

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assert that teaching racial hatred is not a charitable activity and, as a result, hate groups are not 

entitled to exemption.

205 As others point out, Bob Jones sets forth its own vague standard.206 

Imagine, for example, if prior to Bob Jones Congress passed a statute stating, “exemption shall 

be denied to groups whose purpose violates clearly defined public policy” and then Treasury 

denied tax exemption to schools that practiced racial discrimination. Would the Court have 

revoked Bob Jones University’s tax exemption if Congress had by legislation mandated the action 

based on undefined public policy?207 One suspects that the district court in Big Mama Rag relied, 

at least in part, on public policy to deny exemption because of the organization’s views on 

homosexuality.208 In any case, the government explicitly disavowed reliance on a public policy 

condemning lesbianism. And it seems very probable that had government explicitly relied on 

public policy the DC Circuit court would have rejected that basis as unconstitutionally vague. The 

Supreme Court obviously intends the public policy doctrine as a viable regulation of conduct, but 

reliance on public policy as basis for denying tax exemption implicates the interests protected by 

the vagueness doctrine. 

My conclusion, that hate groups do not practice charity, is not based on Bob Jones’s public 

policy rationale. Instead, it is based on a specific regulatory codification expressed long before 

the Supreme Court decided Bob Jones.

209 Charity is defined by a 1954 regulation that necessarily 

205 Supra note 60 and accompanying text. 206 Supra note 67 and accompanying text. 207 Here, I do not mean that Congress could not legislate denial of tax exemption for groups that teach racial 

discrimination. Cf. IRC 501(i) (denying tax exemption for social clubs having a written policy of discrimination 

against any person on the basis of race, color, or religion). I assert only that a statutory provision stating 

“exemption shall be denied if the organization operates inconsistently with public policy” would be 

unconstitutionally vague. 

208 Big Mama Rag v. United States, 494 F. Supp. 473, 480 n. 7 (D. D.C., 1979) (noting that the IRS did not assert a 

public policy against “promoting lesbianism . . . despite the unfortunate comments of its officials [to that effect].” 209 Treas. Reg. 1.501(c)(3)-(1)(d)(2) (1959). 

55 
 

 

 

 

 

 

excludes perpetuating prejudice and discrimination or denying human or civil rights. The 

regulation discourages speech in favor of discrimination and denying human or civil rights, but 

not because people are uncertain about whether to speak or what to say or because they cannot 

know whether an examiner will subjectively decide to deny exemption. It is instead because 

government may define charitable purposes, and by granting exemption only to groups pursing 

the defined purpose, disfavor communicative efforts unrelated to that purpose.210 

We might still lament the thought that apparently society is prohibited from defunding 

hate by its precise name.211 The foregoing analysis is necessitated only by the assumption that 

the tax code cannot explicitly say “tax exemption shall be denied to groups that advocate hatred 

of people.” But the assertion is either a normative one masquerading as proscriptive, or just 

intellectually lazy. I do not assert that government may directly prohibit hate speech, but in the 

remainder of this article I prove that government may explicitly and with constitutional authority 

state that “exemption shall be denied to groups that teach people to hate other people.” 

b. Incantations: Government Speech, Subsidized Speech, Forum Analysis and 

Unconstitutional Conditions 

 

Government may not teach people to hate other people because of immutable 

characteristics. Government may not proclaim from a billboard, “African Americans are 

dangerous,” “Jews are greedy,” or “America is a Christian nation.” These are unremarkable 

210 Supra note 90 and accompanying text. 211 I tend to agree with critical theorists who point out the racist irony that we easily find ways to protect First 

Amendment values while punishing defamatory speech, conspiracies, invasion of privacy, and all manner of 

harmful speech but we find ourselves powerless to directly punish hate speech. Mari J. Matsuda, Charles R. 

Lawrence III, Richard Delgado, Kimberle Williams Crenshaw, WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE 

SPEECH, AND THE FIRST AMENDMENT (ROUTLEDGE 1993). 

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assertions, though there is a plausible case that nobody has standing to enforce the 

prohibition.

212 Nevertheless, they ultimately explain why government can and must deny tax 

exemption to hate groups. But to finally arrive at that conclusion, one must understand and 

navigate a thicket of First Amendment incantations. Broadly speaking, these incantations focus 

on whether government is speaking for itself, maintaining a physical or metaphysical space for 

private speech, or just spending in pursuit of the public good. Another incantation, “the 

unconstitutional conditions doctrine” further impacts speech by preventing indirect punishment 

of speech. Even a fleeting familiarity with these doctrines sufficiently explains why scholars 

entertain the notion that government is constitutionally required to fund hate groups through 

tax exemption.213Ultimately, though, government may no more fund stochastic terrorism than it 

can directly engage in hate speech. 

The detailed logic proceeds as follows: Government may say whatever it wants if what it 

says does not violate the Constitution.214 Government may post a billboard stating, “America is 

212 See supra note 243. (stigmatizing harm, by itself, is not actionable as an equal protection violation). The 

potential lack of standing demonstrated in the cases cited in 243 doesn’t concern me that much. First, even if it is 

true that no citizen – not even an African American challenging tax exemption to the Klan, for example – has 

standing to prohibit tax exemption to stochastic terrorist, this article first addresses the first order issue whether 

government may deny tax exemption, by its own choice rather than mandamus, to those groups. I suppose I am 

content to trust that once its authority is clear, government will do so because its just the right thing to do. 

Second, I do not concede that minorities and other targets of hate groups do not have standing to force 

government to deny tax exemption. This article, though, is already long enough so I address that issue in a 

forthcoming separate essay. Darryll K. Jones, Who Has Standing to Challenge Tax Exemption of Stochastic 

Terrorists? _____ PITT TAX REV. _____ (2024). Available at [I will insert the SSRN cite in early summer 2023]. 213 Professor Post admits that speech jurisprudence is garbled and generally indecipherable, but he notes that 

those who live with it every day develop an intuitive sense that leads them to the right conclusion. Robert Post, 

supra note 58. My personal disappointment is that constitutional scholars don’t even bother to consider the 

proposition that government is not mandated to exempt hate groups. Supra note 70. Their failure bespeaks a 

First Amendment political philosophy but insufficient legal analysis. 

214 Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1 (2000) (discussing the government speech doctrine 

generally); Richard C. Schragger, Of Crosses and Confederate Monuments: A Theory of Unconstitutional 

Government Speech, 63 ARIZ. L. REV. 45 (2021). (describing a theory of constitutional limitations on government 

speech). 

57 
a free country,” but it may not post a billboard proclaiming, “America is a Christian nation.” This 

is the government speech doctrine.215 The government speech doctrine includes the 

government’s right to say what it pleases through the mouths of employees or independent 

contractors.216 Hence, government may pay a private citizen to proclaim, “America is a free 

country” and in doing so may preclude the private citizen from also saying anything else while so 

engaged or by use of government funding.

217 This is the subsidized government speech 

doctrine.

218 

There are places, always maintained and sometimes designated by government, where 

people can say whatever they please. This is the public forum doctrine.219 Except for time, place, 

and manner restrictions, government may not regulate speech in these general-purpose 

amphitheaters.220 Here, people can carry signs proclaiming, “African Americans are dangerous,” 

215 Shurtleff v. Boston, ____ U.S. ____, 142 S. Ct. 1583 (2022) (describing the holistic methodology employed to 

 

 

 

 

 

 

 

 

 

determine whether government is engaging in government speech); Pleasant Grove City v. Summum, 555 U.S. 460 

(2009) (government can say whatever it wants, subject to restraint by the establishment clause); Matal v. Tam, 

_____ U.S. ____, 137 S. Ct. 1744, 1757 - 61 (2017) (describing the characteristics of government speech). 216 Pleasant Grove City, 555 U.S. at 468. “When a government entity embarks on a course of action, it necessarily 

takes a particular viewpoint and rejects other (2006) s. The Free Speech Clause does not require government to 

maintain viewpoint neutrality when its officers and employees speak about that venture.” Matal v. Tam, ____ U.S. 

at ____, 137 S. Ct. at 1757. 

217 Rust v. Sullivan, 500 U.S. 173 (1991). In Rust, the Supreme Court upheld a regulation prohibiting family planning 

grant recipients from discussing abortion when providing services with or connected with the grant funding. Id. 

But in Legal Services Corp. v. Valazquez, the Supreme Court struck down a regulation prohibiting legal service grant 

recipients from advocating the unconstitutionality of welfare laws when providing services with or connected with 

the grant funding. 531 U.S. 533 (2001). 218 See generally Robert C. Post, Subsidized Speech, 106 YALE L.J. 151 (1996). The subsidized government speech 

doctrine is tempered, somewhat, by the right of government employees to speak on matters of “public concern.” 

See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“The Court has made clear that public employees do not 

surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a 

public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.”) 

219 Steven G. Gey, Reopening the Public Forum: From Sidewalks to Cyberspace, 58 OHIO ST. L.J. 1535 (1998). 

In conducting forum analysis, our decisions have sorted government property into three 

categories. First, in traditional public forums, such as public streets and parks, “any restriction 

based on the content of . . . speech must satisfy strict scrutiny, that is, the restriction must be 

narrowly tailored to serve a compelling government interest.” Pleasant Grove City v. Summum, 

555 U.S. 460, 469, 129 S. Ct. 1125, 172 L. Ed. 2d 853, 862 (2009). Second, governmental entities 

220 

58 
“Jews are greedy,” and “America is a Christian nation.” There are other places, always created 

and maintained by government, where people can speak their minds but only about a 

government-designated topic.221 In these special purpose amphitheaters, government may not 

dictate viewpoints concerning the designated topic.222 This is the limited public forum 

doctrine.223 If the forum is for discussion of race in America,224 people can say “African Americans 

are dangerous,” and entry cannot be limited to people who say, “African Americans are no more 

dangerous than anybody else.”225 Entry to a limited public forum is typically conceptualized as a 

government benefit that may not be conditioned on the forfeiture of a constitutional right.

226 

Significantly, government may create a limited public forum merely by subsidizing private speech 

create designated public forums when “government property that has not traditionally been 

regarded as a public forum is intentionally opened up for that purpose”; speech restrictions in 

 

 

 

 

 

 

 

 

such a forum “are subject to the same strict scrutiny as restrictions in a traditional public forum.” 

Id., at 469-470, 129 S. Ct. 1125, 172 L. Ed. 2d 853, 858. Third, governmental entities establish 

limited public forums by opening property “limited to use by certain groups or dedicated solely 

to the discussion of certain subjects.” Id., at 470, 129 S. Ct. 1125, 172 L. Ed. 2d 853, 858 As noted 

in text, “[i]n such a forum, a governmental entity may impose restrictions on speech that are 

reasonable and viewpoint-neutral.” Ibid. 

Christian Legal Society, 561 U.S. 661, 679 (2010). 

221 Id. 222 “Although there is no requirement of narrow tailoring in a nonpublic forum, the government's restrictions still 

must be viewpoint neutral and must be “reasonable in light of the purpose served by the forum.” In order to show 

that a speech restriction is “reasonable,” the government must show that its restraint: (1) furthers a “permissible 

objective;” and (2) contains “objective, workable standards” that are “capable of reasoned application.” Krasno v. 

Mnookin, No. 21-cv-99-slc, slip op. at 15 (W.D. Wisc. Nov. 2, 2022) (citations omitted). 223 Supra note 218. 224 “The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify 

the State in reserving it for certain groups or for the discussion of certain topics.” Rosenberger v. Rector and 

Visitors of the University of Virginia, 515 U.S. 819, 829 (1995). 

225 “Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the 

exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content 

discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other 

hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within 

the forum's limitations.” Id. at 829-30. 226 See Christian Legal Society of the University of California v. Martinez, 561 U.S. 661, 682 n. 13 (2010) (university 

may not discriminate on the basis of viewpoint in determining entry into limited public forum). 

59 
 

 

 

 

 

rather than by designated a geographical space. In that case speech occurs in a “metaphysical” 

special-purpose amphitheater but viewpoint discrimination is still prohibited. 227 

The final part of this intricate house is that sometimes a subsidy is indicative of neither 

government speech nor the creation of a limited public forum. Government can pay someone to 

deliver its message, but sometimes government only pays for the amphitheater not the 

message.228 The difficulty arises when it is not apparent whether government is paying for the 

speech or just the amphitheater. Worse yet, sometimes subsidy is merely an exercise of the 

government’s spending power; by paying what looks like a subsidy, government may merely be 

purchasing an activity (even speech) to its own precise specifications. In the latter circumstances, 

government is entitled to get what it pays for and to reject what it does not even if by doing so 

government excludes speech regarding certain topics or even viewpoints.229 Government may 

pay for a commercial saying “smoking is bad for your health,” and does not also have to pay for 

a commercial saying “smoking is not that bad for your health.” Thus, a subsidy may signal one of 

three different things. In some cases, subsidy indicates that government is speaking. 

Government may discriminate amongst ideas and opinions in its own speech. In others, subsidy 

indicates that private persons are speaking in a limited public forum created by the subsidy. At 

227 Id. at 830 (Funding to student groups using student activity fees created a “metaphysical” limited public forum). 228 “Subsidized speech challenges two fundamental assumptions of ordinary First Amendment doctrine. It renders 

uncertain the status of speakers, forcing us to determine whether speakers should be characterized as 

independent participants in the formation of public opinion or instead as instrumentalities of the government. And 

it renders uncertain the status of government action, forcing us to determine whether subsidies should be 

characterized as government regulations imposed on persons or instead as a form of government participation in 

the marketplace of ideas.” Robert C. Post, supra note 55 at 152. 229 Rust v. Sullivan, 500 U.S. 173 (1991) (rule prohibiting funding to medical grantees that advise on abortion was 

not viewpoint discrimination, but rather a valid exercise of government spending power discriminating against 

certain outcomes). In National Endowment for the Arts v. Finley, the Court addressed whether the requirement 

that words be comprehensible lest they intolerably infringe on free speech rights, stating “when the Government 

is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” 524 

U.S. at 589. 

60 
most, government may define the topic, but it cannot dictate opinions about that topic.230 In still 

others, subsidy is evidence only that the government is buying something about which it may 

discriminate as to speech necessary to that thing purchased.231 

The unconstitutional conditions doctrine lurks somewhere in the shadows as another 

incantation. Broadly, the doctrine means that government may not condition a benefit on the 

recipient’s waiver of a constitutional right.

232 I refer to the rule as one of situational ethics 

because it clearly doesn’t apply in all situations. The most obvious example is when a criminal 

defendant is required to waive his right to a jury trial in exchange for reduced sentence. For our 

specific purposes, the unconditional conditions doctrine means that the government cannot 

230 Technically, government subsidizes traditional and designated public fora (sidewalks and parks, for example) 

too, but it is subsidizing the primary activity for which the fora were created – walking and lounging, for example in 

the case of sidewalks and parks. In these circumstances, it is unnecessary to characterize the subsidy’s purpose as 

 

 

 

 

 

 

 

 

 

 

either government speech, private speech, or government spending because government may not regulate speech 

at all in those places (except as to time, place, and manner). 231 In National Endowment for the Arts v. Finley, the Court addressed whether the requirement that words be 

comprehensible lest they intolerably infringe on free speech rights, stating “when the Government is acting as 

patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” 524 U.S. at 589. 

The Spending Clause of the Federal Constitution grants Congress the power “[t]o lay and collect 

Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and 

general Welfare of the United States.” The Clause provides Congress broad discretion to tax and 

spend for the “general Welfare,” including by funding particular state or private programs or 

activities. That power includes the authority to impose limits on the use of such funds to ensure 

they are used in the manner Congress intends. As a general matter, if a party objects to a 

condition on the receipt of federal funding, its recourse is to decline the funds. This remains true 

when the objection is that a condition may affect the recipient’s exercise of its First Amendment 

rights. At the same time, however, we have held that the Government “‘may not deny a benefit 

to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if 

he has no entitlement to that benefit.’” 

Agency for Int’l Development v. Alliance for Open Society, International, 570 U.S. 205, 213 (2013). (citations 

omitted). 

232 Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1415 (1989); Martin H. Redish and Daryl I. 

Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543 (1996); Cass R. Sunstein, Why the 

Unconstitutional Conditions Doctrine is an Anachronism (with Particular Reference to Religion, Speech, and 

Abortion) 70 B.U. L. REV. 593 (1990); Lloyd Hitoshi Mayer, Nonprofits, Speech, and Unconstitutional Conditions, 46 

CONN. L. REV. 1045 (2014). 

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condition entry into a limited public forum on the entrant’s waiver of the right of free speech. 

government may not pay agents to say the same things.235 That would accomplish indirectly 

For example, a university may not require a student group to remain silent about religion to enter 

a forum made available for unlimited student discussion of any other topic.233 This is but a 

specific manifestation of the broader rule that government may not do indirectly – via its power 

to allocate or withhold discretionary benefits – what it is prohibited from doing directly.234 The 

unconstitutional conditions doctrine is clearly a restriction on government. It restricts 

government from that which would deprive people of rights specifically granted in the 

Constitution. It is not a source of an independent right for individuals. 

It is here, finally, that we reach the irreducible conflict. On one hand, if government is 

prohibited from doing indirectly what it may not do directly, government is prohibited from 

subsidizing stochastic terrorism. Surely, government would violate the constitution if, speaking 

for itself, it posted a billboard proclaiming, “African Americans are dangerous,” “Jews are greedy” 

or “America is a Christian nation.” That unquestionably direct prohibition proves that the 

233 Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 81 (1995). 234 Supra note 230. 235 Norwood v. Harrison, 413 U.S. 455 (1973). So adamant was the Court on this point that it stated: 

That the Constitution may compel toleration of private discrimination in some circumstances 

does not mean that it requires state support for such discrimination. This Court has consistently 

affirmed decisions enjoining state tuition grants to students attending racially discriminatory 

private schools. A textbook lending program is not legally distinguishable from the forms of state 

assistance foreclosed by the prior cases. Free textbooks, like tuition grants directed to private 

school students, are a form of financial assistance inuring to the benefit of the private schools 

themselves. An inescapable educational cost for students in both public and private schools is 

the expense of providing all necessary learning materials. When, as here, that necessary expense 

is borne by the State, the economic consequence is to give aid to the enterprise; if the school 

engages in discriminatory practices the State by tangible aid in the form of textbooks thereby 

gives support to such discrimination. Racial discrimination in state-operated schools is barred by 

the Constitution and "it is also axiomatic that a state may not induce, encourage or promote 

private persons to accomplish what it is constitutionally forbidden to accomplish." 

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what government may not accomplish directly. On the other hand, government is just as 

authoritatively prohibited from using its discretionary spending power to extract a waiver of 

Id. at 463-64. (citations omitted). Continuing, the Court stated: "State support of segregated schools through any 

arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment's command 

that no State shall deny to any person within its jurisdiction the equal protection of the laws." Id. n. 7. More 

recently, the Court applied the prohibition to single-sex education: 

The issue will be not whether government assistance turns private colleges into state actors, but 

whether the government itself would be violating the Constitution by providing state support to 

single-sex colleges. For example, in Norwood v. Harrison, 413 U.S. 435 (1973), we saw no room to 

distinguish between state operation of racially segregated schools and state support of privately 

run segregated schools. "Racial discrimination in state-operated schools is barred by the 

Constitution and 'it is also axiomatic that a state may not induce, encourage or promote private 

persons to accomplish what it is constitutionally forbidden to accomplish.'" Id. at 465; see also 

Cooper v. Aaron, 358 U.S. 1, 19, 3 L. Ed. 2d 5, 78 S. Ct. 1401 (1958) ("State support of segregated 

schools through any arrangement, management, funds, or property cannot be squared with the 

[Fourteenth] Amendment's command that no State shall deny to any person within its 

jurisdiction the equal protection of the laws"); Grove City College v. Bell, 465 U.S. 555, 556 (1984) 

(case arising under Title IX of the Education Amendments of 1972 and stating that "the economic 

effect of direct and indirect assistance often is indistinguishable"). 

United States v. Virginia, 518 U.S. 515, 599 (1996). Importantly, the Court ruled that despite its facial neutrality 

and indeed the state’s “good intentions,” the effect was still unconstitutional: 

We need not assume that the State's textbook aid to private schools has been motivated by 

other than a sincere interest in the educational welfare of all Mississippi children. But good 

intentions as to one valid objective do not serve to negate the State's involvement in violation of 

a constitutional duty. "The existence of a permissible purpose cannot sustain an action that has 

an impermissible effect." Wright v. Council of City of Emporia, 407 U.S. 451, 462 (1972). The 

Equal Protection Clause would be a sterile promise if state involvement in possible private 

activity could be shielded altogether from constitutional scrutiny simply because its ultimate 

end was not discrimination but some higher goal. 

Id. Thus, Justice Rehnquist’s cursory rejection of the argument that government violates the Equal Protection 

Clause by exempting discriminatory organizations was premature at best. Bob Jones, 461 U.S. at 622 n. 4 

(“Because of its holding [denying tax exemption to a university that discriminated in its admissions policy violated 

public policy], the Court does not have to decide whether it would violate the equal protection component of the 

Fifth Amendment for Congress to grant §501(c)(3) status to organizations that practice racial discrimination. I 

would decide that it does not. The statute is facially neutral; absent a showing of a discriminatory purpose, no 

equal protection violation is established. Washington v. Davis, 426 U.S. 229, 241 – 244 (1976)”). I accept the 

general view that government does not violate the Equal Protection Clause via a racially neutral statute unless a 

discriminatory intent is proven. See Helen Norton, THE GOVERNMENT’S SPEECH AND THE CONSTITUTION 107 n. 48 

(CAMBRIDGE UNIV. PRESS 2019). But I do not accept that the general rule applies to racial discrimination in education. 

Bob Jones University v. United States, 461 U.S. 574 (1983), Brown v. Board of Education, 347 U.S. 483 (1976), and 

Norwood v. Harrison, 413 U.S. 455 (1973), taken together, but most explicitly Norwood, reject an intent 

requirement in the educational context. The normative case for and against Rehnquist’s proposition will have to 

await another article. 

63 
rights to express viewpoints. Hence the conflict: By denying tax exemption to a hate group 

government “punishes”236 a certain viewpoint, something it may not do directly. But by granting 

tax exemption to the hate group, government funds private speech it could not itself utter. When 

faced with a hate group’s application for exemption, government violates the constitution one 

way or the other. 

Irreducible does not mean irresolvable. One way to resolve the conflict is that 

government simply eliminate the benefit.

237 By not offering the benefit at all, government would 

simultaneously avoid viewpoint discrimination and equal protection violations. A second option 

is that government could limit educational tax exemption to formal schools, eliminating 

exemption only for informal educational organizations.238 I would not support the second option, 

never mind the first, even if I lacked confidence in the analysis set forth in Sections II and III. My 

236 The word is appropriate, of course, only if one accepts that denial of subsidy is the equivalent of prohibition. 

 

 

 

 

See supra note 46 and accompanying text. The Supreme Court seems close to accepting Justice Scalia’s adamantly 

stated distinction between denial of subsidy and punishment or prohibition of speech. Id. In Christian Legal 

Society, for example, a case regarding a university’s requirement that a Christian group accept “all comers” (even 

atheists, for example), the Court noted: 

“this case fits comfortably within the limited-public-forum category, for CLS, in seeking what is 

effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS 

may exclude any person for any reason if it forgoes the benefits of official recognition. The 

expressive-association precedents on which CLS relies, in contrast, involved regulations that 

compelled a group to include unwanted members, with no choice to opt out. In diverse contexts, 

our decisions have distinguished between policies that require action and those that withhold 

benefits. See, e.g., Grove City College v. Bell, 465 U.S. 555 (1984); Bob Jones Univ. v. United 

States, 461 U.S. 574 (1983). Application of the less restrictive limited-public-forum analysis 

better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of 

subsidy, not wielding the stick of prohibition. Cf. Norwood v. Harrison, 413 U.S. 455 (1973). 

(“That the Constitution may compel toleration of private discrimination in some circumstances 

does not mean that it requires state support for such discrimination.”) 

561 U.S. 661, 682-83 (2010). 237 Norwood, 413 U.S. 455, 462 (“Even assuming, therefore, that the Equal Protection Clause might require state 

aid to be granted to private nonsectarian schools in some circumstances -- health care or textbooks, for example --

a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian 

schools might best be achieved by withholding all state assistance.”) 238 See supra note 64-65 and accompanying text. 

64 
 

 

 

purpose in this section is to assert that government may take more than a symbolic stand – short 

of outright prohibition – against hate speech. Eliminating the exemption entirely or excluding 

informal educational organizations from tax exemption would be just that stand but it throws 

the baby out too. My assertion is that government may legitimately and more surgically cut off 

public funding of stochastic terrorism by specific reference rather than by what may seem like 

intellectual gymnastics. 

I should first admit that it is entirely possible to construct diametrically opposed, yet 

seemingly equivalent free speech arguments for and against government’s right to explicitly deny 

tax exemption for hate groups. Thus, government has the right to speak for itself and since 

government speaks through agents, it may require subsidized agents to speak on designated 

topics and according to approved script.

239 That is, government may condition educational 

exemption on the subsidized speaker’s agreement not to teach people to hate. But of course, 

this makes sense only when government speaks for itself. When, instead, government subsidizes 

the amphitheater, it does not speak for itself and may not engage in viewpoint discrimination. It 

may preclude stage guests from straying “off topic,”240 but it may not dictate opinions about that 

topic. To the extent that teaching people to hate is educational (that is, is “on topic”), 

government cannot prohibit that viewpoint if it allows all others. Except government may 

sometimes engage in viewpoint discrimination even when it subsidizes speech. If the subsidy 

does not create a limited public forum but instead is simply how government purchases a public 

239 See generally Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative, 77 Fordham 

L. Rev. 33 (2008). (discussing government right to regulate speech when government exercises its “managerial 

prerogative” over government activities). 

240 Krasno v. Mnookin, No. 21-cv-99-slc, slip op. at 15 (W.D. Wisc. Nov. 2, 2022) (citations omitted) (Court upheld 

University’s right to delete “off-topic” comments from a limited public forum created by University’s maintenance 

of social media website on which students were otherwise allowed to post comments). 

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prohibit the “vendor” from talking about abortion. By this reasoning, withholding subsidy for 

abortion speech is merely government’s decision to forego a purchase. As it relates to the 

government’s spending power, tax exemption is not permission and denying tax exemption is 

not prohibition. Hence, government may decline to subsidize teaching hate simply because it 

decides not to purchase stochastic terrorism even though government engages in viewpoint 

discrimination as a practical matter thereby and may not directly prohibit stochastic terrorism. 

Free speech purists might legitimately reject the notion that government can avoid First 

Amendment strictures by simply asserting that it is funding an activity rather than prohibiting 

speech necessary to the activity.241 The activity/speech dichotomy threatens to eliminate all 

speech restrictions on government funding, whether direct or indirect. Taken to its limits, the 

government spending approach would allow government to undertake a grant program that 

funded only “conservative” or only “liberal” foodbanks, for example (if there were such things). 

But to ignore the dichotomy and test all funding distinctions against free speech jurisprudence, 

good, government may engage in content and viewpoint discrimination necessary to precisely 

get that for which it pays and nothing more. Here, government can exclude content and 

viewpoint that is not what it wants in pursuit of the public good. Government may purchase 

family planning services, specifying that family planning is all things other than abortion, and then 

would be to prohibit government from discrimination in funding just about any activity. When 

government builds sidewalks or bridges for example, it funds activities, though speech is 

241 The spending power is analogous to government speech insofar as the necessity to discriminate amongst public 

goods and services. Just as government may discriminate amongst ideas when government speaks for itself, 

government may discriminate between activities, even expressive activities when it is buys for itself. Rust, 500 U.S. 

17 (1991). 

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necessary. No speech concerns arise by allowing government to restrict contractors from 

asserting that government is forcing the utilization of discredited construction methods. We 

have no trouble concluding that government is funding an activity and may proscribe speech not 

conducive to the activity. Here Justice Scalia’s criticism of equating the prohibition of speech and 

the denial of funding is apt.242 But when government funds an activity that is “nothing but 

speech,”243 the equation is apparent. Denying funding for education that teaches hate is 

necessarily to disfavor speech. So perhaps speech jurisprudence, rather than spending 

jurisprudence, should apply when government funds an activity that is “nothing but speech.” 

Under this conception, government would be prohibited from making viewpoint distinctions 

between activities – like education – when the activity is so inherently communicative that 

government is funding nothing but speech. But to prohibit government’s ability to discriminate 

when it funds “nothing but speech” would collide, full circle, with the government speech 

doctrine and its spending power, which allow government the right to discriminate when 

expressing its own idea, even if through agents, or discriminating between services it purchases. 

Speech incantations lend themselves to varied but defensible conclusions because they 

depend on dubious factual predicates or distinctions, derived from subjective characterization of 

government intent. They necessarily lend themselves to disparate conclusions. It is never 

objectively obvious, for example, whether government is speaking for itself, funding private 

speech, or purchasing a public good or service. The distinction is dispositive but whether 

242 Supra note 46. 243 International Brotherhood of Teamsters, Local 695, A.F.L. v. Vogt, Inc. 354 U.S. 284, 296 (“But where, as here, 

there is no rioting, no mass picketing, no violence, no disorder, no fisticuffs, no coercion—indeed nothing but 

speech—the principles announced in Thornhill and Swing should give the advocacy of one side of a dispute First 

Amendment protection.”) 

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what it may not do indirectly. The doctrine restricts government, it does not enable citizens. 

Thus, government may not condition subsidy on the organization’s promise to refrain from hate 

speech. Since government may not prohibit hate speech by command, it is also precluded from 

doing so indirectly by its taxing power. But the analysis requires an exact definition of that which 

may not be accomplished directly. If the prohibited direct action is that “government may not 

itself engage in hate speech,” it may not pay others to do so on its behalf. Government may 

neither utter hate speech, nor commission private persons to do so as its agents. But if the direct 

prohibition is against “government hate speech,” the unconstitutional doctrine cannot logically 

support denying tax exemption because tax exemption commissions private speech. The 

government does not engage in government speech indirectly via tax exemption because tax 

exemption funds something different -- private speech. As a result, government is not entering 

a constitutionally prohibited space. If we define the prohibited direct action differently, though 

no less accurately, the unconstitutional conditions doctrine would apply to prohibit government 

government is doing one or the other depends on the observer’s intellectual vantage. We cannot 

determine whether government may or must deny exemption to hate groups by rote application 

of incantations. 

A last look at the unconstitutional conditions doctrine provides the final proof that speech 

incantations cannot be cathartic. Recall the general rule that government may not do directly 

from exempting hate groups. If the prohibited direct action is “advocating discrimination or the 

denial of human rights secured by law,” tax exemption must be denied because tax exemption is 

an indirect way of accomplishing the same outcome. A third definition of the prohibited direct 

action – “operation of a racially discriminatory school” – renders the same outcome. If 

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government is constitutionally prohibited from directly operating a racially discriminatory school, 

it may not do so indirectly by giving aid to private hate groups to do so. 

The unconstitutional conditions doctrine is demonstrably indeterminate in one last 

context. If private speech can create a reasonable though mistaken belief that private speech is 

government speech, government has a legitimate basis to impose conditions on its subsidy to 

prevent that misapprehension.244 It may even be required to do so. Assuming a factual predicate 

is found, and the least restrictive means are employed, government may or must impose 

conditions to eliminate the potential that listeners will mistake private hate speech for 

government speech.245 

c. Incantation Futility and Relative Constitutional Harms 

Wherever we turn, here we are. Incantations help us focus on different factors of 

apparently equal import, but that they render varying outcomes is probably a safe indication that 

they obscure more than they illuminate. In fact, none of the incantations provide a definitive or 

unassailable conclusion. They all seem to defeat whatever solace might be had from logical, and 

244 Helen Norton, Not For Attribution: Government’s Interest in Protecting the Integrity of its Own Expressions, 37 

U.C. DAVIS L. REV. 1317 (2004). 

Several recent cases illustrate courts' difficulties in distinguishing the government's 

constitutionally suspect regulation of private expression from its permissible efforts to protect its 

own speech from private appropriation. On one hand, the Eighth Circuit in 2000 held that the 

University of Missouri's public radio station did not violate the First Amendment when it refused 

to accept - and thus acknowledge on-air - financial support from the Ku Klux Klan. Just a few 

months later, however, a different panel from the same circuit held that Missouri's Highway and 

Transportation Commission ran afoul of the First Amendment when it rejected the Klan's 

application to participate in a roadside clean-up program that would require its recognition on a 

state highway sign. In both cases, Missouri argued that it legitimately sought to ensure that the 

Klan's views were not erroneously attributed to the state, while the Klan maintained that its 

exclusion violated the First Amendment. 

Id. at 1319. 

245 Rosenberger 

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to reduce or eliminate both harms? (4) If not, which harm is worse?246 

A virtual world example helps bring the conundrum into better focus. Suppose 

government builds a highway billboard on which it allows organizations to post educational 

materials. To explicate what we know about tax exemption, assume that along the bottom of 

the billboard it is stated “This Billboard is made possible by your tax dollars.” Let’s assume 

government would have created a limited public forum; if we assumed government was simply 

purchasing an educational program of its choosing, we would have settled the matter because 

government cannot purchase speech prohibited to it, but it can limit the purchased program to 

exclude hate speech as not being according to government’s purchase order. We need to assume 

the billboard is a limited public forum to understand the analogy. Now suppose one group used 

the billboard to proclaim that: “African-Americans are dangerous, Jews are greedy, and America 

is a Christian nation.” The precise harm from the perspective of all who see the billboard (not 

just African American, Jewish or Muslim people) is not that government is speaking. The words 

defensible answers to the following questions: (1) Is government faced with the prospect of 

causing constitutional harm via legitimate activity? (2) Will government’s effort to avoid the first 

harm cause another constitutional harm? (3) If so, can government’s effort be better engineered 

on the billboard might even be accompanied by a disclaimer as a matter of regulatory or statutory 

law. It is not even that through their taxes, people are being compelled to fund speech. The 

harm is that people know their government is facilitating speech advocating inequality in a 

246 This is the analysis relied upon by the Supreme Court in Walz v. v. Tax Commissioner of City of New York. By 

granting tax exemption to a religious organization, government can be viewed as establishing a religion, but by 

denying tax exemption government might be viewed as entanglement in religion. The Court noted that when 

government is between that sort of rock and hard place, it may legitimately decide which course of action is least 

harmful. 397 U.S. 664 (1970). Indeed, the opinion suggests that the government’s reasonable decision as to a 

course of action is to be accorded deference. 

70 
societal realm that guarantees equality before that very government.

247 If government cannot 

exclude that group’s use of the billboard, its only remaining choice is to tear down the billboard 

or inflict a constitutional harm by permitting the billboard’s use for stochastic terrorism. 

The solution therefore seems obvious if we focus on the four questions above. First, 

government’s otherwise legitimate funding of the billboard causes a harm of constitutional 

dimension when the billboard is used or stochastic terrorism. The government funds an activity 

it could not itself perform, and that funding results in a message government may not convey. 

Second, if the government denies hate groups the use of the billboard because of their ideas, the 

government denies hate groups the right to be treated by government without regard to whether 

247 The Eleventh Circuit indulges the legal fiction that symbols historically associated with racial hatred offends all 

citizens alike, and therefore government does not violate the Equal Protection Clause by displaying those symbols. 

NAACP v. Hunt, 891 F.2d 1555, 1562 (11th Cir. 1990) (Alabama’s display of confederate flag “offended citizens of 

 

 

 

 

 

 

 

 

all races” equally); Coleman v. Miller, 117 F.3d 527, 529–530 (11th Cir. 1997) (Georgia’s display of confederate flag 

offended citizens of all races equally). The Fifth Circuit implicitly acknowledges the differential harm on certain 

citizens but concludes that a stigmatizing harm is insufficient by itself to prove an Equal Protection violation. 

Moore v. Bryant, 853 F.3d 245 (5th Cir. 2017). A fascinating application of the rule that government’s racialized 

speech offends all citizens equally (if at all) occurred in Penkoski v. Bowser 486 F.Supp.3d 219 (D. DC 2020). 

“Plaintiffs see the [District of Columbia’s “Black Lives Matter”] Mural as something that declares the District's 

preference for black citizens who adhere to Secular Humanism. This favoritism, they claim, violates both the 

Establishment Clause and Equal Protection Clause. They may, indeed, be subject to a discriminatory message every 

time they see the Mural. But they have made no showing that the Mayor or the District have subjected them to 

any discriminatory treatment because of their race.” Id. Unlike NAACP and Coleman, Moore and Penkoski 

acknowledged plaintiffs suffered a stigmatizing harm different from other people but held that the harm was not 

cognizable without discriminatory treatment. Id. I might spend several pages explaining why these holdings, while 

they permit government’s display of racist symbols, could not possibly justify government display of explicit speech 

proclaiming, “African Americans are dangerous,” “Jews are greedy,” or “America is a Christian nation.” All three 

billboards, according to the logic described those cases, would presumably offend all citizens alike. And in the 

absence of actual discriminatory treatment, a plaintiff might only be able to prove a stigmatizing harm. 

Nevertheless, the billboards would constitute explicit speech – not symbols. They would explicitly advocate a 

position prohibited to government. I am confident that distinction would prevail to provide standing to any 

plaintiff, but especially African Americans, Jews, and non-Christians, who would then prevail on equal protection 

grounds. The three billboards are emblematic of the speech used by hate groups to teach what they teach; hate 

groups may use symbols but they are not so indirect that their speech is not of the sort in my billboard examples. A 

footnote is inadequate of course to explicate this argument. I elaborate on a companion forthcoming companion 

essay. See Darryll K. Jones, Who Has Standing to Challenge Tax Exemption for Stochastic Terrorists? _____ PITT TAX 

REV. _____ (2024). 

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hate groups to use the billboard is worse than the deprivation visited upon hate groups by denial 

of that use. The constitutional harm when hate groups use government funding is felt by all 

citizens, some more intensely than others, and inevitably fosters a legitimate and pessimistic 

disrespect for government. Hate groups, on the other hand, may still use the billboard for any 

message that would not generate a constitutional harm by its association with government 

subsidy, and may otherwise teach or say whatever they want elsewhere (that is through a 

medium other than the subsidized billboard) without fear of punishment from government. The 

constitutional harm to government is wide because subsidized hate speech affects everyone, and 

deep because it fosters suspicion and disrespect of government. By contrast, the harm to 

stochastic terrorists groups is narrow – affecting only the hate group and only regarding a 

message government may not convey – and shallow, because hate groups are not precluded 

from speaking their minds everywhere else without fear of government punishment.248 

By that analysis, government should have the right, if not the duty, to exclude hate groups 

they agree with government orthodoxy. Third, there is no practical way government can avoid 

one or the other harm. Fourth, the constitutional harm visited upon everyone else by allowing 

from using the billboard because government (1) is constitutionally mandated to do so and (2) 

has a compelling state interest even if excluding hate groups is not constitutionally mandated. 

248 The Supreme Court has occasionally pointed to the availability of alternative avenues of speech to condone 

limited public forum conditions that require organizations to forego constitutional rights. See Christian Legal 

Society of the University of California v. Martinez, 561 U.S. 661, 690-91 (2010) (availability of social media and 

other avenues supports upholding University’s condition impacting First Amendment free speech and association 

rights). But it quickly points out that alternative methods are of no avail if the condition is not viewpoint neutral. 

Id. 682 n. 13. Walz v. Tax Commission of the City of New York, 397 U.S. 66 (1970) (denial of exemption for 

organizations engaged in political speech upheld where organizations had alternative avenues of political speech). 

Still, the availability of alternative means of communication is indeed persuasive if the alternative is that 

government must either forego tax exemption altogether or invariably violate a constitutional prohibition such as 

the Equal Protection Clause. 

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The conclusions’ patency is somewhat belied by the torturous trek through the free speech 

incantations. Nevertheless, it maintains government’s status as benevolent and neutral, 

enforces the rights of all citizens to equal protection before the law, and avoids the complete 

suppression of speech, not even the hate speech which may still be expressed. There is no reason 

why what seems so obvious in the physical forum – that government must or should exclude hate 

groups from using the billboard – should not apply in the metaphysical forum. 

V. CONCLUSION 

A wise tribunal, at least under the American tradition, would avoid constitutional issues 

raised by government’s denial of tax exemption to a hate group. It could do so, more safely than 

in the past, by first focusing on a definition of charity with long historical precedent. Government 

has officially and specifically – not just as a derivation from public policy -- recognized that 

increasing prejudice and discrimination or having a purpose in opposition to human and civil 

rights, is not charity. Hate groups – stochastic terrorists -- engage in noncharitable activities by 

their purpose not their particular speech. Or a court might look to methods by which hate groups 

teach – methods I think invariably meet the definition of indoctrination as it is commonly and 

scientifically understood – and conclude that hate groups do not engage in the sort of teaching 

activity intended to be subsidized by 501(c)(3). Thus, Treasury’s early instinct that what it called 

“propaganda” is not education has always been correct. Indoctrination is a pejorative, anathema 

to freedom and democracy, not to epistemological learning. Indoctrination is both illiberal and 

undemocratic so Congress could not have intended to support it by granting indoctrinators 

exemption as though they were educators. By employing a more precise definition of education 

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– one that excludes indoctrination by methodology rather than by reference to speech or 

subjectivity – a court could uphold government’s power to deny tax exemption to hate groups 

without constitutional concern. 

But if a court was somehow forced to dive into the constitutional deep end, it could and 

should still uphold government’s denial of tax exemption to hate groups. Put simply, and without 

tripping over a thick rope of first amendment incantations, a court could acknowledge two 

indisputable constitutional points. First, government may speak or spend for itself, and in either 

case, it may make whatever distinctions between ideas or acquisitions it deems appropriate if 

the distinctions violate no constitutional provision. Second government may not enable 

constitutional violations through private action or even speech. By granting tax exemption to 

stochastic terrorists, government enables speech it could not itself speak. Hence, if government 

is not required to deny tax exemption to avoid that harm, government has at least a compelling 

interest to do so. This conclusion does not damage free speech incantations, sacred and murky 

though they may be, because it affirms that government may not do indirectly what it may not 

do directly, and because it limits conditions on subsidies to those necessary to prevent 

government’s own constitutional wrongdoing. The result does not portend a slippery slope of 

exceptions by which the government could act against disfavored ideas. A wise tribunal should 

avoid these issues if possible, but a wise legislative or executive branch should confront the 

constitutional issues head-on. 

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EPILOGUE 

After the massacre at Mother Emanuel, governments employed their own speech in more 

conspicuous pursuit of the good.249 Across the country, and overseas, governments began 

removing statues and monuments, lowering flags, and renaming public places to disassociate 

themselves from hate.

250 Governments policed their own speech as it relates to hatred. 

Predictably, government speech precipitated private speech and sometimes more government 

speech in opposition to viewpoints opposing symbols of hate.

251 A raucous debate ensued in 

different venues, often punctuated by violence. Except for that violence, the marketplace of 

ideas seemed to be functioning as the founders envisioned. 

On August 11 and 12, 2017 various white supremacist groups gathered in Charlottesville, 

Virginia’s Lee Square for what was billed as a rally to unite right wing groups (the “Unite the 

Right” rally).252 Lee Square’s namesake was General Robert E. Lee, the military leader of the 

249 Dara Lind, Unite the Right, the violent white supremacist rally in Charlottesville, explained, VOX, at 

https://www.vox.com/2017/8/12/16138246/charlottesville-nazi-rally-right-uva (Aug. 14, 2017, 12:06 pm) 

(discussing efforts to remove offensive statutes and monuments after the shooting at Mother EmanueL). Huw 

Jones and Estelle Shirbon, City of London to remove statutes linked to slavery trade, Reuters, at 

https://www.reuters.com/article/uk-britain-finance-diversity-idUKKBN29Q1H5 (same). 250 Caesar Alimsinya Atuire, Black Lives Matter and the Removal of Racist Statues, 1 21 Inquiries Into Art, History, 

and The Visual, 449 (Germany) (2020), available at https://journals.ub.uniheidelberg.de/index.php/xxi/article/view/76234/70966. (discussing growing efforts to remove offensive statues 

and monuments after the murder of George Floyd) 

251 “In the wake of the Charleston church shooting in June 2015, efforts were made across the South to remove 

Confederate monuments from public spaces and rename streets honoring notable figures from the Confederacy. 

While often successful, these efforts faced a backlash from people concerned about protecting their Confederate 

heritage.” Unite the Right rally, WIKIPEDIA, THE FREE ENCYCLOPEDIA 

https://en.wikipedia.org/wiki/Unite_the_Right_rally. 252 Dara Lind, Unite the Right, the violent white supremacist rally in Charlottesville, explained, VOX, at 

https://www.vox.com/2017/8/12/16138246/charlottesville-nazi-rally-right-uva (Aug. 14, 2017, 12:06 pm). 

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Confederate States of America.253 Protestors selected it as their venue because the City Council 

had recently decided to remove a statue of General Lee from the park, a decision with which 

right wing groups vehemently disagreed.254 Media reports depicted marchers, including 

members of the National Policy Institute, an “educational” organization exempt under 501(c)(3) 

that helped organize the rally,255 shouting slogans often associated with hate. During the 

darkness hours of August 11, 2017, for example, marchers carried torchlights through the 

University of Virginia shouting, among other things, “you will not replace us,” and “Jews will not 

replace us!”256 Participants marched in careful formation, harkening days during which National 

253 Sheryl Gay Stolberg and Brian M. Rosenthal, Man Charged After White Nationalist Rally in Charlottesville Ends in 

Deadly Violence, N.Y. TIMES (AUG. 12, 2017) https://www.nytimes.com/2017/08/12/us/charlottesville-protestwhite-nationalist.html. 254 Id. 255 Lucas Ropek, What Happened in Charlottesville today? Here’s what you need to know 256 Unite the right rally supra note 249. The “replacement theory” is one of the non-evidentiary beliefs taught by 

many hate groups, including the tax-exempt organization, National Policy Institute, Inc. Thomas Chatterton 

Williams, The French Origins of “You Will Not Replace Us,” THE NEW YORKER, Dec. 4, 2017, 

https://www.newyorker.com/magazine/2017/12/04/the-french-origins-of-you-will-not-replace-us (describing 

Richard Spencer, founder of the National Policy Institute, Inc.’s adoption of “Identitarianism,” as the label used to 

refer to belief in the replacement theory); Gillian Brockell, The father of ‘great replacement’: An ex-socialist French 

writer, WASH. POST, May 17, 2022 at 7:44 a.m. (describing Richard Spencer’s endorsement of replacement theory). 

The French novelist Jean Raspail is credited with first articulating the theory. National Immigration Forum, The 

Great Replacement Theory, Explained, (Dec. 1, 2021) https://immigrationforum.org/article/the-great-replacementtheory-explained/. Raspail’s novel, “The Camp of the Saints, [is] an apocalyptic tale that attempts to depict the 

destruction of white, Western society at the hands of mass immigration from the Global South.” Id. 

As soon as the frenzy of delight was over, it soon became clear that even for poor wretches long 

used to living on top of each other, the occupied strip of coastline would never be enough. But 

those who had climbed to the tops of the buildings discovered the length and breadth of their 

domain. Stretching as far as the eye could see, a lush, rich land stood ready to greet them. The 

houses, packed thick, were no blemish on nature. Indeed, it seemed to enfold and embrace 

them, and their very number made the refugees feel at home. Clearly this was no desert! Farther 

on, at the foot of the wooded hills, the scouts on the rooftops were amazed to discover vast 

orchards of trees, some thick with flowers, others in all their greenery, heavy with fruit. They 

passed on the good news, sang it out like town criers, or like muezzins atop their minaret 

perches. In no time it spread through the horde, from mouth to mouth. And everywhere—the 

streets, the gardens, the squares—people came together, in small groups and large, to talk, and 

talk ... We really must emphasize, one last time, the role of the rain and the scramble that 

followed in the newfound surge of acquisitive instincts. Quite simply, the mob had developed a 

morale. A spirit of steel. A conquering spirit. The result was that more than three- quarters of the 

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Socialists or Klansmen marched through the night to make whatever point they desired. Counterprotestors gathered.257 The marketplace of ideas bustled. It would be only a matter of time 

before truth prevailed. 

The next day saw more of the same in broad daylight. Protestors marched again, this 

time shouting “Jewish media is going down,” among other slogans.258 The marketplace became 

so raucous that government authorities cancelled the organizers’ permit for public safety 

reasons.

259 Around 1:45 pm, as protestors and counter-protestors shouted at each other while 

moving away from Lee Park, 20-year-old James Alex Fields, Jr. drove his 2010 Dodge Challenger 

horde—the strongest and most adventurous—decided not to stop, but to push on still further. 

Later, historians would turn this spontaneous migration into an epic, dubbed “The Winning of the 

North,” a term we agree with, but only by comparison. One can’t help thinking of the first panel 

of the diptych: the flight to the north, the pathetic exodus of the country’s rightful owners, their 

self-willed downfall, their odious surrender. In a word, the anti-epic! Putting the two mobs side 

by side in the balance, one gets a clear picture ....” 

Jean Raspail, THE CAMP OF THE SAINTS at 90 (Norman Shapiro trans., ÉDITIONS ROBERT LAFFONT, 1975). Later, another 

French novelist, Renaud Camus, helped bring the theory to the attention of American hate groups. Renaud Camus, 

THE GREAT REPLACEMENT (INTRODUCTION TO GLOBAL REPLACISM) (2011). Thus, the phrase “you will not replace us,” is most 

often associated with anti-immigrant sentiment generally. Sarah Widman, “You will not replace us”: a French 

philosopher explains the Charlottesville chant, VOX https://www.vox.com/world/2017/8/15/16141456/renaudcamus-the-great-replacement-you-will-not-replace-us-charlottesville-white (Aug 15, 2017, 9:20am). The phrase 

“Jews will not replace us” reflects an evolution of the replacement theory from one which warns of white 

replacement by brown and black immigrants, to one that accuses Jews of orchestrating the replacement of white 

people by brown and black immigrants: 

I locate “Jews will not replace us” in the broader historical context of a long-lasting 

antisemitic narrative. This fear of a Jewish plan for world domination had two major themes. 

First, Jews would encourage massive non-white immigration from inferior races that would 

outbreed and eventually replace whites. Second, they would promote racial interbreeding that 

would destroy whites’ supposed natural advantages in intelligence and character, hastening 

replacement through “mongrelization.” These aims would be accomplished through Jewishdirected communism by promoting a “hoax” of racial equality. 

Andrew S. Winston, "Jews will not replace us!": Antisemitism, Interbreeding and Immigration in Historical Context, 

105 AM. JEW. HIST., 1 (2021). 

257 Id. 258 Id. 259 Id. 

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– a latter day version of the 1969 Dodge known as the “General Lee” in the 1980’s action comedy 

“The Dukes of Hazzard” – at high speed into a crowd of counter protestors, eventually slamming 

into two other vehicles and then squealing away backwards from the crowd as counter protestors 

were tossed aside or jumped out of the way.260 Almost 30 people were injured, including 32-

year-old Heather Hedley who attended the rally, according to her mother, to voice her opposition 

to the ideas espoused by the rally’s organizers. Heather died from her injuries that day.

261 

It can hardly be denied that the marketplace is slowly achieving the outcome envisioned 

by the First Amendment. If measured by dwindling membership and growing disorganization 

among stochastic terrorists, truth and justice seem slowly emergent. After the massacre at 

Mother Emanuel and then after they Unite the Right Rally, protest organizers sought to disavow 

the violence or their relationship to the perpetrators. Many groups splintered as their 

membership and organized activities dwindled.262 Shall we take solace in our faith that truth and 

justice will inevitably prevail and so be unconcerned that hate groups may achieve tax 

exemption?263 To that question Justice Stevens might have repeated what he once stated: “[a] 

260 Id. See also Joe Heim, Ellie Silverman, T. Rees Shapiro and Emma Brown, One dead as car strikes crowds amid 

protests of white nationalist gathering in Charlottesville; two police die in helicopter crash, WASH. POST. Aug. 13, 

2017, https://www.washingtonpost.com/local/fights-in-advance-of-saturday-protest-incharlottesville/2017/08/12/155fb636-7f13-11e7-83c7-5bd5460f0d7e_story.html. 261 Id. 262 Unite the Right supra note 249. 263 In the meantime, violence instigated by beliefs taught by hate groups continues. On October 27, 2018, 46-yearold Richard Bowers shot 17 Jewish worshippers, killing 11 of them, at Tree of Life -- Or L'Simcha Congregation in 

the Squirrel Hill neighborhood of Pittsburgh, Pennsylvania. Pittsburgh synagogue shooting, WIKIPEDIA, THE FREE 

ENCYCLOPEDIA, https://en.wikipedia.org/wiki/Pittsburgh_synagogue_shooting, He did so, according to reports 

quoting his social media statements, because of his belief that Jewish people were encouraging immigration as a 

way of orchestrating the replacement of white people. Id. On May 14, 2022, Payton S. Gendron shot 13 African 

American people, killing 10 of them, at a grocery store in Buffalo, New York. He, too, referred to the replacement 

theory as a reason for his violence. Will Parker and Ginger Adams Otis, Buffalo Supermarket Shooting Leaves at 

Least 10 Dead, Wall St. J., May 15, 2022, https://www.wsj.com/articles/multiple-people-shot-at-buffalosupermarket-11652561758. 

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free society must tolerate such groups. It need not subsidize them, give them its official 

imprimatur, or grant them equal access to . . . facilities.” 264 

264 Christian Legal Society Chapter of the University of California v. Martinez, 561 U.S. at 703. (Stevens J. 

concurring). 

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