The Richmond Tea Party Audit and the First Amendment

When the Richmond Tea Party (RTP) wanted to hold a daytime rally under the right of peaceable assembly protected by the Virginia and United States Constitutions, the City of Richmond made the RTP spend about $8,500 on a special events permit, liability insurance, police presence, and other costs.

The City of Richmond later allowed Occupy Richmond to hold protests over the course of weeks, but did not require the special events permit and other expenditures like those made by the RTP.  Occupy Richmond has cost the city and state police about $31,000, and has resulted in multiple arrests.

There has been nationwide outrage over this blatant disparity in treatment.  Americans know that government cannot pick First Amendment winners and losers.

In fact, this is one more example of government lawbreaking.  Americans inherently understand the laws of freedom better than government, even with almost no media publicity about the First Amendment law of permits for rallies.

Richmond Mayor Dwight C. Jones, a recipient of generous corporate contributions over his political career as both mayor and a Democratic delegate to the Virginia General Assembly, met with and coddled Occupy Richmond protesters in his mayoral office.

Mayor Jones is a self-described "'child of civil rights' and protest."  However, it seems that he missed some key First Amendment lessons of the whole civil rights era, such as how the First Amendment applies equally to everyone.

Upon learning about the discriminatory treatment of its assembly protected by the First Amendment, the RTP sent the City of Richmond a demand for a refund of their $8,500.

Instead of a refund, the City of Richmond sent the RTP a "comprehensive" tax audit letter.

Mayor Jones' exercise of discretion in allowing Occupy Richmond to engage in its activities at taxpayer expense while requiring permits and payments from the RTP tramples United States Supreme Court decisions dating back many decades to earlier American labor union and civil rights movements.

Cities may impose certain reasonable conditions on rallies so that citizens are not harmed and don't bear the extra costs of others' engaging in their rights.

Both the RTP and Occupy Richmond have the First Amendment right to peaceable assembly.  One group was peaceable yet paid; the other group, neither.

Civil rights protesters, especially during the 1950s and '60s, and labor union rally organizers dating back even farther, often met with government discrimination or resistance to their protests.

Governments learned to abuse the permit process through selective treatment of applicants, leading to many court cases holding that government officials may not use discretion in the process of issuing protest or rally permits.

From the 1958 decision in Staub v. City of Baxley:

It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

Abuses of constitutional rights under "color of state law" became so prevalent that Congress eventually passed legislation authorizing lawsuits against state and city government officials for money damages and attorneys fees, now found at Title 42, Sections 1983 and 1988 of the United States Code.

It seems, therefore, that the City of Richmond should be forking over money to the Tea Party.

As to the audit, RTP spokeswoman Colleen Owens told me that by law the city cannot demand the business taxes it wants under its audit because protesters with special events permits are not subject to those taxes.

This, of course, raises the question of whether the city will audit Occupy Richmond.

The November 14 audit letter from the Richmond Department of Finance begins: "Our records indicate that you are delinquent in the filing and/or payment of Admissions, Lodging and/or Meal Taxes that you are required to collect on behalf of the City. As such, your business has been selected for a comprehensive tax audit."

The audit letter threatened a tax assessment, and was "nuclear" in that it said the city would look at whether the RTP owed sales, business personal property, and other business licensing taxes.

The timing of the audit letter looks like unlawful retaliation by the City of Richmond, and not good tax collection practices.  If, however, the city isn't even following its own tax laws, then the city looks incompetent on top of its bullying, a common combination in government.

The RTP isn't backing down.  In fact, the RTP filed a Freedom of Information Act demand to determine whether Mayor Jones or his people had anything to do with the genesis of the audit.

The RTP may also want to send a demand to the Department of Finance for what their records show that would provide "cause" for this comprehensive audit.  While courts have reduced Fourth Amendment protections against unreasonable searches and seizures as applied to tax audits, government may not use tax audits solely for retaliation -- especially against the free exercise of rights.

Bullies in government rely on the fact that too few of their victims have the resources and temerity to fight back, and know that even the legal system too often protects government lawbreaking.

Tea Parties nationwide may want to follow the RTP's lead.  Cities that let Occupy protesters camp for free but charged Tea Parties for daytime rallies should be issuing refunds or collecting money from the respective Occupiers.

It looks like the government bullies in Richmond picked on the wrong victims.

Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker.

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