The Legal Project's Response to the Federal Election Commission
Regarding CAIR's Complaint Against the "Obsession" DVD

by Brooke M. Goldstein
November 15, 2008

https://www.legal-project.org/130/the-legal-projects-response-to-the-federal

Thomasenia P. Duncan, General Counsel
Office of the General Council
Federal Election Commission
999 E. Street, N.W.
Washington, D.C. 20463

RE: Council on American-Islamic Relations (CAIR) Complaint Against Clarion Fund

Dear Ms. Duncan:

This letter is in response to a complaint filed by the Council on American-Islamic Relations (CAIR) against the Clarion Fund on September 19, 2008 from the Middle East Forum, a non-partisan think tank located in Philadelphia, PA.

The Clarion Fund was not contacted or involved in the drafting of this reply.

The Legal Issue

The Complainant requests that the FEC review whether the Clarion Fund, a non-profit, made contributions and expenditures, or used foreign contributions in connection with a federal election by mailing an excerpt of a DVD called "Obsession" to various newspapers this summer as an insert.

The sole legal issue is whether the Clarion Fund tried to advocate a particular presidential candidate by mailing an excerpt of the DVD in swing states. It is immaterial whether the funding to mail the DVD originated domestically or abroad.

Analysis

The DVD is candidate neutral. Clarion produced the DVD in 2005, three years prior to the current presidential election. In its Complaint, CAIR alleges that the Clarion Fund, not the DVD, is pro-McCain. This completely ignores IRS rule Rev. Rul. 76-456, 1976-2 C.B. 151Instead, CAIR relies on hearsay, stating that a pro-McCain article was "purportedly" removed from the distributor's website. "Purportedly" is not evidence.Publisher.com asked New York Times Co. spokeswoman Diane McNulty about the policy on this insert. She replied:

Without evidence, CAIR relies on connecting Clarion to vague and unsubstantiated allegations of anti-Muslim bias and hopes that the FEC will assume that such a connection surely implies a pro-McCain position. CAIR'S evidence this time? Selective quotes from newspapers, which found the DVD to be "anti-Muslim" with zero reference to either McCain or Obama.

The DVD is about important matters of national security, it is about terrorism and it is a legitimate, constitutionally protected "opinion advertisement." Moreover, CAIR ignores the fact that the New York Times, a national liberal paper had no problem including the DVD as an insert. Editor and

"We believe the broad principles of freedom of the press confer on us an obligation to keep our advertising columns as open as possible. Therefore our acceptance or rejection of an advertisement does not depend on whether it coincides with our editorial positions. In fact, there are many instances when we have published opinion advertisements that run counter to the stance we take on our own editorial pages.

"We do require that opinion advertisements include the name of the sponsoring organization and a mailing address or a telephone number. This enables our readers to communicate directly with the sponsor should they seek additional information or wish to express agreement or disagreement with the advertised message. This advertisement complied with these requirements[1]". , which states that motivation is "irrelevant in determining whether activities are prohibited campaign intervention". Moreover, even if it was relevant, CAIR fails to prove its allegation.

Contrary to CAIR's assertions, the DVD includes interviews with Muslim-Americans, and with recognized counter-terrorism experts. It is also part of a plethora of post 9/11 literature, movies and documentaries discussing the threat posed by violent radical Islamic extremists to the West. Thus, "Obsession" should rightfully be considered educational material

Both candidates for US President have stated that they find terrorism to be a central foreign policy issue in this election. Barack Obama repeats the message of the DVD at issue when he says,

"The threat is from violent extremists who are a small minority of the world's 1.3 billion Muslims, but the threat is real. They distort Islam. They kill man, woman and child; Christian and Hindu, Jew and Muslim. They seek to create a repressive caliphate. To defeat this enemy, we must understand who we are fighting against, and what we are fighting for[2] ."

John McCain also regards radical Islam as the most serious threat to America, stating:

"It will strengthen us to confront the transcendent challenge of our time: the threat of radical Islamic terrorism. This challenge is transcendent not because it is the only one we face. There are many dangers in today's world, and our foreign policy must be agile and effective at dealing with all of them. But the threat posed by the terrorists is unique. They alone devote all their energies and indeed their very lives to murdering innocent men, women, and children. They alone seek nuclear weapons and other tools of mass destruction not to defend themselves or to enhance their prestige or to give them a stronger hand in world affairs but to use against us wherever and whenever they can. Any president who does not regard this threat as transcending all others does not deserve to sit in the White House, for he or she does not take seriously enough the first and most basic duty a president has -- to protect the lives of the American people[3]".

CAIR has provided zero evidence showing the Clarion Fund, a non-profit advocated either Barack Obama or John McCain by mailing an excerpt of a DVD they produced three years before this election cycle.

Instead, CAIR wants to create connections based on reader biases. By erroneously connecting the Clarion Fund to Israel, despite its incorporation in NY, CAIR's wants the FEC to assume that the Fund must be anti-Muslim. And, if the Clarion Fund is anti-Muslim, so is the DVD. And, if the DVD is anti-Muslim, it must be against Presidential candidate Barack Obama. Why? CAIR offers no explanation. Just a divisive inference that alludes more to CAIR's political agenda, rather than that of the Clarion Fund.

The Complaint to the FEC against the Clarion Fund is equivalent to a predatory lawsuit, where the allegation seeks to harm the reputation of the Respondent, as no evidence has been provided by CAIR on the merits of the accusations laid. The fact is that CAIR has maliciously attempted to deprive Clarion of its First Amendment rights to speak freely on issues of grave public concern.

This is not the first time that the organization has acted in such an irresponsible manner. We urge your office to take close note of CAIR's history of filing frivolous and malicious lawsuits designed to silence public discourse on radical Islam, terrorism and its sources of financing:

CAIR v. Andrew Whitehead[4], CAIR v. Cass Ballenger,[5] and the organization's threats against Robert Spencer and Mike Adams.[6]

The Middle East Forum requests that the FEC recognize CAIR's Complaint against the Clarion Fund as predatory and frivolous because it attempts to shut down organizations with opposite policy positions from their own in violation of the first amendment.

Brooke M. Goldstein
Attorney at Law
Director, The Legal Project at the Middle East Forum
http://www.meforum.org/legal-project.php
Fax. (215) 546 5409

[1] http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1003849746

[2] http://www.barackobama.com/2007/08/01/the_war_we_need_to_win.php

[3] http://www.johnmccain.com/Informing/News/Speeches/872473dd-9ccb-4ab4-9d0d-ec54f0e7a497.htm

[4] Specifically, a $1.3 million lawsuit in reprisal for Whitehead's site anti-cair-net.org, where he described CAIR as an Islamist organization with ties to terrorist groups. The suit was dropped by CAIR after the organization failed to respond to discovery request pertaining to CAIR's internal documents.

[5] After Congressman Ballenger revealed in an interview that he had reported CAIR to the CIA and FBI as a "fundraising arm for Hezbollah," CAIR filed suit, where the judge ruled that the Congressman's statements were made in the course of his public duties and therefore constitutionally protected speech in an area of public concern. See Council of American Islamic Relations, v. Cass Ballenger, 444 F.3d 659 (D.C. Cir. 2006), available online at http://pacer.cadc.uscourts.gov/docs/common/opinions/200604/05-5161a.pdf

[6] CAIR's attorney, Joseph E. Sandler threatened legal action were the Young America's Foundation to host Robert Spencer as a speaker at its 2007 convention. Adams commented on the matter on Townhall.com, and was duly threatened by Sandler with prosecution for "obscene or harassing telephone calls." However, the threats were not followed up, as Spencer did speak at the convention, and Adams' article remains online. See, http://www.jihadwatch.org/archives/017609.php, http://www.townhall.com/Columnists/MikeSAdams/2007/08/13/duck_stew, http://www.townhall.com/Columnists/MikeSAdams/2007/08/08/i_don%E2%80%99t_cair_if_muslims_are_offended, and http://www.humanevents.com/article.php?id=26500 for further information

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