NOM Spins Judicial Smackdown As Victory
Last year the National Organization for Marriage sued the IRS over a clerk’s mistaken release in 2012 of a tax form that by law should have had the group’s donors redacted but didn’t. When gay rights activists published the list of major donors, NOM portrayed the release as a sinister political plot by the Obama administration that was “reminiscent of Watergate” and “part of a deliberate attempt to chill the First Amendment activity of NOM, its donors, and others who associate with NOM.” Based on this conspiracy theory, NOM sued the IRS for punitive damages.
Last week a federal judge harshly rejected NOM’s claims that the release was willful or a result of gross negligence, but NOM is trying to spin the humiliating rejection of its false charges as some kind of victory.
In reviewing the facts of the case, the judge said it is clear that the IRS clerk, who was responding to a public records request, sent a copy without the donors redacted by mistake. The government readily admits the accidental release. But NOM lawyers absurdly tried to claim that IRS supervisors investigating the incident were somehow breaking the law by reviewing the group’s forms.
“NOM has proffered no evidence that its unredacted tax information was willfully disclosed,” wrote Judge James Cacheris. In fact, the judge’s ruling says, the clerk had no idea who was requesting the information or what NOM was about. David Badash at the New Civil Rights movement nicely summarized the tone of the judge’s dismissal on summary judgment of the charges that the release was due to a political plot or gross negligence:
United States District Court Judge James C. Cacheris in his Tuesday ruling against NOM used terms like, “NOM has failed to produce a shred of proof,” NOM’s argument “misses the mark,” is “unconvincing,” “is unpersuasive,” and “[t]o find that NOM could prevail from this scintilla of evidence … is not appropriate.”
The one part of NOM’s lawsuit the judge did not throw out was NOM’s claim for attorney’s fees and funds for any actual damages it can prove resulted from the mistaken release. NOM will get to make the case for those damages in court.
That was enough for NOM to spin the decision as a victory. In an email to supporters on Sunday evening, NOM’s Brian Brown wrote:
First, the IRS news you've been waiting to hear — they finally admitted we were right and they were wrong! This week the IRS was forced to admit that they were the ones who unlawfully released our confidential donor information to a gay activist who promptly gave it to our political opponents, and opponents of marriage, the Human Rights Campaign.
Brown’s email makes it sound as if the government was trying to cover up the mistaken release, and it was only the pressure from grassroots activists and the Act Right Legal Foundation (which Brown chairs) that pushed members of Congress to “keep the IRS scandal in the public view and to dig into the truth of what happened to NOM and its donors.”
The truth is much less exciting than NOM’s claims. But NOM seems likely to get the government to pay some legal fees related to the mistaken release. Also to be considered by the court will be the government’s argument that any damages NOM can prove should be offset by money NOM raised by falsely portraying themselves as the victims of political persecution.
NOM’s lawyers, of course, have plenty to keep them busy.
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