I think there's much to Brad's argument, but let me press him a
bit on this.  The income tax deductions given for contributions to
501(c)(3) organizations (as well as other tax exemptions for nonprofits)
are -- from an economic perspective, and often from a constitutional
perspective -- tantamount to subsidies; through them the taxpayers
subsidize a wide range of speakers and actors, including many that
express views we disagree with.  Lenora Fulani could set up a 501(c)(3)
to convey harsh, even anti-Semitic, criticisms of Israel, and our tax
money would essentially help subsidize it.

	Likewise, the media mail postage rate (and the old second-class
rate) is, I think, something of a subsidy.  So are university funding
programs for student groups (see Rosenberger).  So are school choice
programs in which the funds can be used at a wide range of schools,
including ones that teach opinions that many disagree with.

	To what extent should the possibility that some users of funds
-- some 501(c)(3)'s, some media mailers, some student groups, some
schools that get school choice funds -- will use them to spread
reprehensible ideas lead us to reject the entire funding program?  The
argument is actually often made as to school choice programs ("If we
have school choice funding, some jihadist or KKK or Nation of Islam
school could use taxpayer money to teach their awful views to
children"); I find it unpersuasive there, especially if it seems likely
that only a tiny fraction of the beneficiaries will express such
far-outside-the-mainstream views.  It could equally well be made against
the charitable tax exemption (at least as applied to educational
organizations), against the media mailing privileges, against funding of
student groups, and so on.  Are we persuaded by such arguments there?
If not, then why should we persuaded by them as to taxpayer financing of
campaigns?

	Eugene

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu 
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of 
Smith, Brad
Sent: Tuesday, April 18, 2006 2:55 PM
To: election-law@majordomo.lls.edu
Subject: RE: Fulani and Tax Financed Campaigns


It seems to me that people have totally missed any point of 
my article if they think I was suggesting that Lenora Fulani 
should be disqualified from federal funds for her 
anti-Semitic remarks (Michael Richardson's comments aside, I 
don't know how else one would describe them), or that it at 
all matters if she made these comments in the context of 
running for president or not.   
 
Fulani met the legal requirements for funds, and should get 
them.  There is no point at which the government should 
discriminate in tax funding campaigns on the basis of the 
candidate's views, articulated or not.  Given that this leads 
to funding for many candidates that Americans think ought not 
be funded by government (and given many other problems with 
tax funding, including the view of many that it doesn't 
seriously address either the equality or the corruption 
problem, especially as the latter is defined in Austin and 
McConnell), the question is whether or not tax funding of 
campaigns is good policy and a good use of tax dollars.  My 
guess is that most academics think yes; polling data 
indicates that most Americans think no.
 
Bradley A. Smith
Professor of Law
Capital University
Columbus, OH
 

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of 
Bryan Mercurio
Sent: Tue 4/18/2006 3:37 PM
To: election-law@majordomo.lls.edu
Subject: RE: Brad Smith column is inaccurate




Hear Hear.

Getting back to the initial point though, my question would 
be what if the person may have made such statement in the 
past and later disavowed themselves of that position (for 
instance, KKK, Neo-Nazi, bigot, etc)? The point being, I 
suppose, is where do you draw the line when prohibited 
certain persons from receiving federal funds. Seems like a 
fine line, and one which can be manipulated or abused.

Bryan





-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of 
Volokh, Eugene
Sent: Tue 4/18/2006 2:05 PM
To: election-law@majordomo.lls.edu
Subject: RE: Brad Smith column is inaccurate

        Well, when a country that is the most democratic in 
the Middle East, and that provides some of the strongest 
(albeit imperfect) protections for ethnic minorities of any 
country in the Middle East, is singled out for accusation as 
"mass murderers" -- when none of the neighboring countries 
that have engaged in comparable or greater killing or 
oppression of minority group members are -- one wonders 
whether the objection is just because of the country's 
alleged sins, or because the sinners are Jews rather than Arabs.

        Eugene

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Bryan 
Mercurio
Sent: Tuesday, April 18, 2006 7:22 AM
To: Michael Richardson; election-law@majordomo.lls.edu
Subject: RE: Brad Smith column is inaccurate


Michael, the comments are still offensive and not becoming a 
politician or any upstanding member of society. I think you fail to 
understand the close association between Israel and the 

Jewish faith.

Fulani went far beyond merely expressing 'distaste' for the Israeli 
military and any post-comment rationalisation does not change the 
meaning of the words/statement.

This still does not answer your first question, which I do think is 
interesting.

Bryan Mercurio


-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Michael 
Richardson
Sent: Tue 4/18/2006 9:17 AM
To: VOLOKH@law.ucla.edu; election-law@majordomo.lls.edu
Subject: RE: Brad Smith column is inaccurate

Greetings!



My appreciation to Eugene Volokh for his sleuthing on the 

context of 

the sentence fragment that hangs like a cloud over the electoral 
efforts of Lenora Fulani.  Professor Hasen will probably 

have to pull 

the plug on this discussion thread as the "near urban myth 

status" of 

the fragment makes this a never-ending story.  However, I will take 
one last bite at the apple and risk getting tarred with the 

brush used 

on Fulani.

1)  No one has responded to my observation that the disputed 
commentary was outside the scope of a political campaign 

and outside a 

federally funded election contest which is where the immediate 
discussion began.

2)  Now that we know the context for the sentence fragment 

was a play 

review, by Fulani, of a play about Zionism written and 

produced by her 

Jewish mentor Fred Newman I believe the anti-semitic charge fails.

3) The "sell their souls" comment, in the context of a play 

review is 

not an extreme statement but represents the poetic license 

often found 

in performance reviews by many reviewers.

4)  The "to function as mass murders of people of color" comment is 
not directed at people of Jewish faith, as the sentence fragment so 
often quoted would lead one to believe. Rather, if you examine the 
construction of the full sentence, it is a commentary on 

the actions 

of a country, Israel.  In other words, political commentary on a 
nation-state.

One may not agree with Fulani's distaste for Israeli militarism but 
the charge of "anti-semitism" is overreaching.

Michael Richardson


      ________________________________

      From: "Volokh, Eugene" <VOLOKH@law.ucla.edu>
      To: <election-law@majordomo.lls.edu>
      Subject: RE: Brad Smith column is inaccurate
      Date: Mon, 17 Apr 2006 15:10:10 -0700
     
     
          I'm a big believer in trying to slay urban myths, but 
shouldn't the labeling as an "urban myth" or as a "near urban myth" 
follow discovery of the context, rather than preceding it?
      
          Here is the best source I could find, based on a quick 
google search, though I'd love to see more, of course. It's 

a column 

by Ed Koch, and it purports to quote a response he got from Lenora 
Fulani on this very point; unless Koch is misquoting Fulani's 
response, the response does not seem particularly exculpatory.
      
      
      

http://www.newsmax.com/archives/articles/2005/4/19/162942.shtml

      
      Lenora Fulani is once again in the news. Last year, 

Abe Foxman, 

national director of the Anti-Defamation League, wrote a letter 
published in The New York Times. Mr. Foxman wrote, "Ms. Fulani has 
stated that Jews 'had to sell their souls to acquire Israel and are 
required to do the dirtiest work of capitalism - to 

function as mass 

murderers of people of color - in order to keep it.'"

              I was shocked at Ms. Fulani's clearly anti-Semitic 
statement and wrote to the chair of the Independence Party, 

stating in 

part:

      "A Daily News article of December 7 written by Lisa Colangelo 
states, 'Party representatives have said the quotes were 

taken out of 

context.' I would appreciate knowing the proper context of Dr. 
Fulani's remarks referred to by 'party representatives.' I cannot 
conceive of any context in which Ms. Fulani's comments could be 
perceived as other than anti-Semitic, but perhaps there was 

a unique 

context which gave the remarks a benign rather than a malignant 
meaning."

              On December 16, 2004, Dr. Fulani wrote, "The 

context of 

the remark quoted by Mr. Foxman in his April 20, 2004 letter to the 
New York Times is a theatre review I wrote in 1989. The 

play, No Room 

for Zion, was written by Fred Newman and was produced that 

year at the 

Castillo Theatre. The play was part memoir, part political 

critique of 

the Jewish experience in the post-war period. My review dealt
specifically with the issue of nationalism and its dangers.
In this case I was remarking on how black America should
learn from the tragedies experienced by Jewish people. I wrote:

              'As I sat and listened I saw more deeply in Fred's 
teaching the historical pitfalls of nationalism. After all, 

according 

to nationalistic ideology, the Jewish people have gotten 

the ultimate 

- land, in the form of a nation state. The fact is, 

however, that they 

had to sell their souls to acquire Israel and are required 

to do the 

dirtiest work of capitalism - to function as mass murderers 

of people

of color - in order to keep it.'

              "Because my comment was about the play and, more 
importantly, because the production was an expression of Newman's 
views which have significantly shaped my own, I asked him 

to write to 

you to provide the larger historical and intellectual 'context' in 
which both the play and my review were written. I have enclosed his 
letter, which I hope will shed further light on the issue at hand."

              Newman's letter stated: "'The dirtiest work of 
capitalism - to which Dr. Fulani referred in her article - 'to 
function as mass murders of people of color' is to act as 

its garrison 

state in an increasingly hostile and unstable Arab and 

Muslim world. 

The language is harsh. The reality, as we now see, is even more 
harsh."

              Mr. Newman closed with "Perhaps this brings us to a 
bottom line. It may be that my views - the views of a leftist - are 
distasteful to you and that you would choose to criticize 

me for them. 

That, of course, is your prerogative." ...

                     
________________________________

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