The IRS's next step was to issue Treasury Regulation § 301.6501(e)-1, which fixes their problem by simply including an "overstatement of basis" as an omission from gross income, thus getting it under the six-year statute of limitations umbrella. The taxpayers responded by arguing that this is unconstitutional, and that it defies federal agency practice and Supreme Court precedent.

Federal agencies are tasked with carrying out the laws issued by Congress, but they may not exceed the powers granted to them by creating legislation themselves. In order to keep the actual legislating in the hands of Congress, there are specific standards for how much discretion the agencies have when it comes to interpreting the laws. In Chevron USA Inc. v. Natural Resources Defense Council, Inc., the Supreme Court came up with a way to delineate the parameters: if a law is passed and Congress specifically addresses how to implement policy relating to a certain issue within its language, there is no deference to federal agencies when it comes to dealing with that issue — they must follow the law as it is written. If, however, the language in the statute is ambiguous, or if there is no language at all regarding an issue, the agency has the discretion to make regulations based on "a permissible construction" of the statute.

Unfortunately for the IRS, the very first step in the Chevron process may halt its attempt to change its interpretation of the regulation in order to catch Home Concrete under the longer statute of limitations. The statute the IRS is attempting to change (26 USC § 6501(e)(1)(A)) is identical to another statute that previously went through the Chevron process in the Colony decision, and it was found to be unambiguous by the Court then. That Colony was decided before Chevron and its subsequent test most likely does not matter — the process the Colony Court went through to come to its decision fulfills all the requirements of Chevron, and the conclusion would be the same even had it come after the test was promulgated. The taxpayers are thus arguing that the IRS has no room to interpret the statute differently from its original determination, and thus the Court should not afford the IRS's new regulation the deference normally accorded such agency regulations, unless Congress itself decides to alter the statute first.

Relying on the Court's decision in National Cable & Telecommunications Association v. Brand X Internet Services, the government argues that unless a statute unambiguously forecloses a particular interpretation of a statute, conflicting Court precedent will not displace that interpretation. The taxpayers argue in response that the decision in Brand X means that the only time a court's interpretation of a statute trumps an agency's is when the court's interpretation is based on its holding that the statute is unambiguous, and further, that the Court's holding in Colony that the statute was unambiguous applies here.

If the Chevron analysis of the statute determines that it is on its face ambiguous and goes on to the second step of the process, the IRS's subsequent interpretation must be considered a "permissible construction of the statute." The taxpayers will be quick to point out what the Court stated in Bowen v. Georgetown University Hospital, when faced with a Chevron "step two" question: "[d]eference to what appears to be nothing more than an agency's convenient litigating position" is "entirely inappropriate." The government will need to show that the new regulation is a permissible reading of the statute, and, perhaps by showing that all of the formal processes for rule-making were followed, overcome the specter of their timing against the looming lawsuit in the process.

The outcome of this case will be important for many reasons — it may either reaffirm the place of Chevron in the administrative law scheme or evidence a potential shift in how agency regulations are evaluated by the courts 28 years after that ruling. It may signal uncertainty in the tax code for taxpayers, or it may reaffirm a regulatory position that the IRS finds troubling. Regardless, the coming decision will be an important one for the government and taxpayers alike.

Elizabeth Milito serves as Senior Executive Counsel with the National Federation of Independent Business (NFIB) Small Business Legal Center. NFIB is the leading small business association representing 350,000 small and independent businesses nationwide. Milito is responsible for managing litigation and amicus work for NFIB.

Suggested citation: Elizabeth Milito, Statutory Ambiguity and Judicial Deference to the IRS, JURIST - Hotline, Jan. 28, 2012, http://jurist.org/hotline/2012/01/elizabeth-milito-irs-chevron.php.

It may come as a shock to most people to learn of potential terrorism charges for investigators who, at worst, have trespassed or rescued a few injured animals. Yet, this is merely the latest chapter of a long-running campaign. I have documented how corporations created the term "eco-terrorism" in the 1980s and then used public relations campaigns, congressional hearings and ambitious court cases to manufacture what the FBI calls the "number one domestic terrorism threat."

Perhaps the most dangerous tactic employed by corporations has been the manipulation of post-9/11 fears to enact designer terrorism legislation. Foremost among these new laws is the Animal Enterprise Terrorism Act (AETA). The act was passed in 2006 at the request of the National Association for Biomedical Research, Fur Commission USA, GlaxoSmithKline, Pfizer, Wyeth, United Egg Producers, National Cattlemen's Beef Association and many other corporations and business groups that have a financial stake in silencing animal rights activists.

The AETA expands the definition of "animal enterprise terrorism" in 18 USC § 43. Its sweeping language criminalizes "interfering with" the operations of an animal enterprise, instilling a "reasonable fear" in those who are protested, and causing a "loss of profits." The scope of the law is widened further through its emphasis on "tertiary targeting." It not only protects animal enterprises, but also any business that does business with an animal enterprise.

In response to civil liberties advocates and in implicit recognition of the vague language, supporters of the bill included a paragraph noting it does not "prohibit any expressive conduct ... protected from legal prohibition by the First Amendment." While it is true that the AETA does not explicitly outlaw protest, saying "This is Constitutional" does not make it so.

The true threat of the law is the fear it has created. This chilling effect on First Amendment activity is at the core of a new lawsuit brought by the Center for Constitutional Rights, Blum v. Holder [PDF], filed on behalf of five longtime activists who say the vague, overly broad language of the AETA has made them think twice about using their rights. One of the plaintiffs, Ryan Shapiro, is now a doctoral candidate at the Massachusetts Institute of Technology. He uncovered the FBI file discussed previously through a Freedom of Information Act request. Shapiro once participated in undercover investigations; he stopped after the passage of the AETA. He says this file — which lists him by name — and other prosecutions confirmed his fears of being prosecuted as a terrorist.

The industries targeted have countered that the AETA is no different from hate crime legislation targeting the Ku Klux Klan. "It's always been possible to punish those who burn crosses, deface houses or otherwise harass people on the basis of race, religion or sexual orientation," Dan Murphy wrote in Dairy Herd. "But often, the small fines and minimal jail terms prescribed by trespassing and property damage statutes don't fit the egregious nature of the offenses."

To most reasonable people, the offenses by factory farms are much more egregious than the act of videotaping them. The purpose of the AETA is not to fulfill a legal void, as supporters claim. Animal rights activists have never committed physical violence against a human being, which is but one trait that makes a comparison to hate crimes so offensive and desperately overreaching. The crimes they have committed, such as trespassing and theft, are already crimes. When it comes to the extreme crimes of underground groups, like the Animal Liberation Front, reclassifying them as "terrorist acts" does not deter the groups. According to a Justice Department report [PDF], animal rights crimes were actually on the decline until the passage of "animal enterprise terrorism" legislation, then they spiked.

The purpose of the AETA is to deter aboveground activists like Shapiro by leveraging the power of fear. Exposés by national groups like the Humane Society of the United States, Mercy for Animals, and PETA have rattled these industries to their core in a way that vandalism or arson never could. Animal enterprises are trying to deflect scrutiny, and hope to use the War on Terror to scare their opposition into submission.

Regardless of how one feels about animal rights or animal rights activists, the targeting of political activists as "terrorists" because they cause a loss of corporate profits sets a dangerous precedent. Occupy Wall Street, for example, clearly is focused on challenging corporate power and has utilized a diversity of tactics currently classified as "animal enterprise terrorism," including non-violent civil disobedience and home demonstrations. If this legislation is not overturned, it will be the blueprint for targeting all protesters that pose a threat to business as usual.

Will Potter is an award-winning independent journalist based in Washington, DC. His reporting and commentary have appeared in the Los Angeles Times, Mother Jones, the Vermont Law Review, and he has testified before Congress. His book, Green Is The New Red: An Insider's Account of a Social Movement Under Siege, was awarded a Kirkus Star for "remarkable merit" and named one of the best books of 2011.

Suggested citation: Will Potter, Animal Enterprise Terrorism Act Threatens Activism, JURIST - Hotline, Jan. 24, 2012, http://jurist.org/hotline/2012/01/will-potter-aeta-terrorism.php.

In one research project during the 1990s, I compared radio content the Federal Communications Commission (FCC) found actionable and non-actionable. There was no significant difference in sexual and excretory references between the two because "shock jocks" often used innuendo rather than uttering expletives on the radio. By the time that so-called "fleeting expletives" slipped onto the television airwaves, the FCC seemed to shift course by attempting to regulate isolated profanities. At the same time, a Congress that had raised fines tenfold for each violation was clearly pressuring the FCC.

In 2008, I made the case that the FCC's 2001 policy statement was subjective because of disagreement about explicitness or graphic nature of depictions, what constitutes dwelling or repeated use and the contextual judgment of pandering or titillating for shock value. Howard Stern and Oprah both broadcast content about oral sexual practices of teens, but the FCC distinguished between the two contexts.

The Internet posed two even more serious challenges to the regulatory scheme. First, online forms made it very easy for lobbying groups to activate members in flooding the FCC with still unresolved complaints, and second, YouTube, Spotify and other online services offered children unfiltered content that could be shared on social media sites.

In the US Court of Appeals for the Second Circuit's first set of oral arguments for the case at hand, Fox's attorney Carter Phillips contended that the FCC's vague regulation policy cannot be consistent with the First Amendment: "if there's a bubble child out there and the child will be hugely disturbed by exposure to a single word, to me, that is utterly implausible." The same might be said for Janet Jackson's "nipple shield" or a naked woman's rear-end on NYPD Blue. The failed system has resulted in cycles of industry boundary testing, complaints over inadvertent airings and FCC attempts to justify its policies through strained reasoning.

Enter the current case before the Supreme Court and recent oral arguments [PDF]. The FCC relies upon licensing of the broadcast airwaves and "enforceable public obligations" to justify its policies. Justice Breyer narrowed his reading of the current case to a test of the 2001 FCC guidelines and the nudity broadcast rules. Justice Kagan, however, challenged the idea that previous cases had offered broadcasters clear guidance on types of offending body parts or length of broadcast time that would indicate a violation. Perhaps this explains why Solicitor General Donald Verrilli seemed to advance on the Court a legal theory that "dramatic departure from what's the norm" is how broadcasters and regulators would know when content is indecent.

Another pressing issue is the arbitrary and capricious enforcement of the rules on only radio broadcasters — not cable, satellite or Internet providers. This discriminatory policy should not be upheld because of what Justice Kennedy termed "public value in having a particular segment of the media with different standards." Justice Kennedy's perspective resonated with Justice Scalia: "Sign ... me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts."

Count me among those also disturbed by the following exchange between Fox lawyer Phillips and Justice Alito that offered the possibility of retaining the rules for radio only.

JUSTICE ALITO: Now, as to radio, what has changed?

MR. PHILLIPS: I'm not here -

JUSTICE ALITO: - to justify that? Well, could we hold that the policy is invalid as to - on First Amendment grounds as to TV but not as to radio?

MR. PHILLIPS: Absolutely, Your Honor, because there are fundamentally different media and there are different protections and the circumstances are different and the Court has recognized that media have to be evaluated individually.

Justice Alito sees "borrowed time" for broadcasters: "It is not going to be long before it goes the way of vinyl records and 8 track tapes," yet large media companies like Fox "will continue to make billions of dollars on their programs which are transmitted by cable and by satellite and by Internet." In sum, the justices seem to be ready to brush aside temporary rights of radio broadcasters and the minority of over-the-air audience members. There are real dangers in the Court anticipating the future. Movie viewing has been in decline since the 1940s, yet it changed rather than died.

Another problem arose when Justice Breyer was questioning the lawyer representing ABC about the depiction of a nude woman as seen by a child in an NYPD Blue episode, for he was comfortable passing a values judgment on the content: "it's about sexual awakening; they are showing a part of a nude woman, the viewer is supposed to put himself in the position of the boy who is seeing her, and the whole thing was titillating."

The arguments indicate that, as Justice Breyer observed, "We don't have to overrule Pacifica." It is unfortunate that there is a desire to cling to a past that is long-gone, if it ever existed. The so-called "values" are based upon a view that we should be more restrictive in sexual content than some other nations, at the same time that we are unrestrictive of violent content. As Justice Ginsburg observed, kids now often hear restricted words out on the street: "the children are not going to be shocked by them the way they might have been a generation ago."

It does not look as if the Court will overturn Pacifica, reexamine the legal standards of scrutiny (intermediate and strict) or focus on a fundamental First Amendment reading of the case before it. Justice Thomas, who in an earlier case seemed open to overturning the law of Pacifica because of technological change, gave no indication but might place the Court in a 4-4 deadlock (with Justice Sotomayor recusing herself). If so, a narrow decision may punt the case back to the FCC for another round. Neither broadcasters nor the public are served by outdated rules, fettered speech and assumptions about what it means to protect children in a free society. As I wrote in 2008, "New media technology appeared to make it impossible to protect children by simply restricting broadcasters."

Jeremy Lipschultz is the Director of the School of Communication at the University of Nebraska at Omaha. He has written several articles on the subject of communication in a modern context and is the author of the book, Broadcast and Internet Indecency: Defining Free Speech.

Suggested citation: Jeremy Lipschultz, Vague and Outdated FCC Indecency Policy Must be Altered, JURIST - Hotline, Jan. 21, 2012, http://jurist.org/hotline/2012/01/jeremy-lipschultz-fcc-indecency.php.

At issue is the effectiveness of the ICC to fulfill its mandate. The concern of many ICC advocates is that any and all intergovernmental institutions (IGOs) exist within an anarchical world; this concept means a lack of centralized government, not chaos. The result is that IGOs are only as strong as their member states make them and the ICC is no exception. The Court may have a semblance of independence when it comes to its decision-making capacity, but this does not translate into independence in terms of its enforcement capability. The Kenyan government's actions are but one example of this broader problem. Yes, the ICC has the capacity to issue arrest warrants for those individuals accused of violating the international norms of humanitarian law, but in order to act upon those warrants the Court needs state cooperation. The anarchical nature of the international system requires such cooperation. Thus, the ICC, in many ways, is only as effective as the member states make it.

So where does this leave us with regards to the Kenya situation and ICC effectiveness? The Kenyan high court's decision to issue an arrest warrant is a clear sign that the intersubjectively held norms bound up in the ICC are not simply rhetoric, but the basis for action. If upheld — and the arrest warrant is currently under appeal in Kenya — this action shows the willingness of member states to not only sign and ratify the Rome Statute (which currently has 120 ratifying members), but the willingness to promote the principles of the statute through action. When considering the future of international criminal justice, this state cooperation is essential to ending impunity. The international criminal justice optimists may want to discuss the independent power of international institutions like the ICC or any of the other international tribunals, but the reality remains that in an anarchical world, state cooperation and enforcement are essential.

Even those advocating for the formation of the Court realized this empirical fact. During the formation process, the Like-Minded Group of states (mainly western European nation-states) and the NGO Coalition for the International Criminal Court both pushed for a statute that specifically mandated state cooperation. Many casual observers of international politics were confused by such a request, believing that ratification of any international treaty translates into state cooperation. However, quite often nation-states ratify treaties only to find loopholes in the language of the document or other means by which to disregard its principle meaning. The Rome Statute attempted to overcome that predicament by explicitly stipulating the responsibilities of member states. Article 86 is but one example of state responsibility; the entire document is ripe with this type of language.

Kenya has learned from its initial error in which they failed to fulfill these responsibilities and has now taken a significant step to rectify this in future situations. The issuance of an arrest warrant for President Bashir is a quintessential example of state responsibility that should hearten advocates of the ICC and its desired mandate. It also reifies the state-based nature of our international system and the difficulties that arise from this type of system. The end to impunity and the upholding of humanitarian law resides not just in the independent ICC, but also in the states that have accepted its mandate.

The initial decision-making process of who to prosecute may exist, at least in some form, as independent from the state-based system, but its ultimate execution remains dependent on the community of states. Thus, if advocates of the ICC ever wish to see Joseph Kony, Omar al-Bashir, or any of the other at-large accused individuals arrested and standing trial in The Hague, the member states must all start acting like Kenya. This will entail action that sends not only the accused of your own state to The Hague (currently six Kenyan citizens are standing trial at the ICC), but also the arrest and extradition of those accused from neighboring states. Only when other states begin to behave like Kenya can the Court become a truly effective institution of humanitarian law. States must be part of the global governance process and this situation has verified that reality.

Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Suggested citation: Eric Leonard, ICC Effectiveness Depends on Member State Cooperation, JURIST - Hotline, Jan. 3, 2012, http://jurist.org/hotline/2012/01/eric-leonard-icc-effectiveness.php.

In his Malaysia Day speech on September 15, Najib proclaimed that "The Malaysia which we dream of and one that we are currently building is the Malaysia which practices functional and inclusive democracy, where peace and public order are safeguarded in line with the supremacy of the Constitution, the rule of law and respect for basic human rights and individual rights." While activists held out hope for real reform, many political commentators viewed this as the opening salvo for possible early elections in 2012, which will be hotly contested between the government and a political opposition that made historic gains in the last election, held in 2008.

The reform effort started with the October repeal of the two infrequently used restrictive laws, the Restricted Residence Act [PDF] and the Banishment Act [PDF]. Pledges were also made to do away with infamous preventive detention laws like the Internal Security Act [PDF], to rescind emergency proclamations underpinning the Emergency Ordinance that permit detention for up to two years to protect public order, and easing restrictions on freedom of assembly and expression.

The promises included a review of Section 27 of the Police Act 1967 [PDF], which empowers the police "to regulate assemblies, meetings and processions" by requiring police permits. Najib stated that the review would take "into consideration Article 10 of the Federation Constitution [PDF] but with a principle that is strongly against street demonstrations." Nevertheless, he said, "the approval to assemble will be given ... after taking into consideration international norms." Optimists said so far, so good, since Article 10 clearly establishes the rights to freedom of speech and expression, peaceful assembly and association.

Fast forward two months and Najib's bold promises lie in tatters, largely discredited by the draconian Public Assembly Bill rushed through the lower house of Parliament on November 29. Demands by the Malaysian Bar Council and other leading civil society groups for continuing consultations were ignored. Malaysia's Senate will probably consider the bill soon and there is little hope that it will seriously reconsider the broader implications of the measure on fundamental freedoms in a country where such freedoms have long been trampled upon.

The draft law is a cruel joke on Malaysian civil society, which was hoping for genuine reforms. In a classic case of bait and switch, the bill does away with the formal need for a police permit but sets out a blanket ban on "assemblies in motion" — such as marches and street protests — and provides such wide discretion for police to prescribe unilaterally the conditions and circumstances for public assemblies that it ensures the right to assemble will be even more tightly restricted.

General principles of international human rights law provide that restrictions on peaceful assemblies must not only must be necessary for public order, but also proportionate to the circumstances. The requirement cannot be met by a wholesale ban, but requires a case-by-case analysis. The bill fails that test and is significantly more restrictive than the law it replaces.

In addition to the outright ban on marches, the Peaceful Assembly Bill gives district police chiefs broad discretionary powers to set the terms of any assembly, including establishing a balance between the interests of the assemblers and those who might be affected by the event and "any other matter ... necessary or expedient." Police may also use "all reasonable force" in dispersing an assembly, yet nowhere in the draft law is the term "reasonable" defined or specification made in what types of situations force would be considered legitimate.

The draft law also sets out that no one under age 21 may organize a protest. Those under 15 are even barred from taking part, silencing young voices and violating the right to participation under the Convention on the Rights of the Child, one of the few human rights treaties Malaysia has ratified.

Exploitative employers of the literally millions of foreign migrant workers in Malaysia can also breathe a sigh of relief since the law bars non-Malaysian citizens from organizing or participating in an assembly. If that were not enough, the bill includes an escape clause for the government to ensure quiescence by providing the home affairs minister unilateral power to give the thumbs up or down on an assembly — a decision that should be reserved for the courts.

The draft law further prohibits assemblies at or within 50 meters (164 feet) of anywhere designated "a prohibited place." Prohibited places explicitly include gas stations, hospitals, fire stations, airports, railways, land public transport terminals on public land, ports, canals, docks, wharves, piers, bridges, marinas, places of worship, kindergartens and schools, dams, reservoirs and water catchments areas, water treatment plants and electricity stations. Try to find a spot within a modern city that is not within 50 meters of one of these places and it becomes clear that the intent is to make it virtually impossible to stage a protest in an urban area in Malaysia.

Evidently the Malaysian government has not learned that all-out attempts to stop citizen-organized marches can backfire badly. On July 9, the government was roundly condemned abroad for cracking down on a march in Kuala Lumpur by Bersih 2.0, a coalition of 62 organizations calling for clean and fair elections. Despite a ban on the march and a barrage of police warnings and threats of arrests, tens of thousands peacefully marched in the face of police tear gas and water cannons. The police arrested 1,667 people, at times using unnecessary force. Media accounts, supplemented by the rapid spread of private video and audio recordings through social media like Facebook, effectively discredited the police version of events. Perhaps recognizing that it cannot control or monopolize the images and messages coming out of such protests, the government has evidently now decided to prevent people from demonstrating in the first place.

Malaysian officials claim they have borrowed legal models for the Peaceful Assembly Bill from democratic countries, but clearly respect for the right of peaceful assembly was left out of the mix. Najib said on September 15 that it is time to rescind the three emergency ordinances on the books and "forge ahead with a new paradigm based on new hope and not be constrained by nostalgia for the past." He added the time was ripe for this move because the government was "realizing the changing realities, taking the pulse of the nation and feeling the restlessness of the people aspiring for a more open Malaysia with a dynamic democracy where the views, ideas and concerns of the masses are given greater attention so that our system would be comparable to the other democracies of the world that are based on the philosophy 'of the people, by the people, and for the people.'" So why then is he promoting a Peaceful Assembly Bill that sets out a new set of draconian restrictions on core human rights?

When he made his Malaysia Day speech, the prime minister drew the kind of global attention that Malaysia so rarely receives, accompanied by hope that his words would mark the start of long overdue, serious and significant legal reforms to broaden respect for rights and deepen democratic practices, yet with the world still watching, he has now stepped away from his pledges.

Najib should heed the call of the Malaysian Bar Council, pull the bill back, and send it to a Parliamentary Select Committee where all stakeholders can have their say and a better bill can be crafted. It is not too late for the government to reverse course, recognizing that bringing the existing draft of the Peaceful Assembly Bill into law will constitute a betrayal of the prime minister's lofty words.

Phil Robertson is the Deputy Director of the Asia Division at Human Rights Watch, where he oversees the organization's work throughout Asia, especially in Southeast Asia, North Korea and Japan. Prior to joining Human Rights Watch in 2009, he was the program manager of the UN Inter-Agency Project on Human Trafficking. He also spent time leading the Mainland Southeast Asia office of the AFL-CIO's Solidarity Center.

Suggested citation: Phil Robertson, Political Bait and Switch Trumps Rights Reform in Malaysia, JURIST - Hotline, Dec. 15, 2011, http://jurist.org/hotline/2011/12/phil-robertson-malaysia-reform.php.