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Legal Ignorance of the Day: Federal Officials Seek to Restrict Religious Speech and "Hate Speech"

To be appointed to a Justice Department position in the Obama administration, you may need to satisfy various ideological litmus tests. But apparently you don't need to understand or appreciate the First Amendment. That seems to be regarded as a bug rather than a feature for Justice Department lawyers.

One example is the administration's baseless prosecutions of peaceful, non-disruptive anti-abortion protesters, which has resulted in judges imposing sanctions against the Justice Department for frivolous prosecutions. In U.S. v. Pine, taxpayers ponied up $120,000 when a judge ordered the Justice Department to pay the attorneys fees of a protester persecuted by the Obama Justice Department in a transparently baseless prosecution.

Another is the recent message delivered by Bill Killian, whom the president appointed to be U.S. Attorney for the Eastern District of Tennessee. He told citizens at a meeting he organized "that hate speech was not protected by the First Amendment," reports NPR.

The Supreme Court has made clear over and over again that hate speech in public settings is protected by the First Amendment. See the Supreme Court’s decisions in (1) R.A.V. v. St. Paul (1992), which invalidated a hate-speech ordinance; (2) Snyder v. Phelps (2011), which overturned damages for hateful bigoted speech at a funeral; (3) Forsyth County v. Nationalist Movement (1992), which said a racist group couldn’t be charged more fees based on its racist message; and (4) Brandenburg v. Ohio (1969), which held a racist Klan speech was protected by the First Amendment. The U.S. Attorney either was not aware of, or did not agree with, any of these well-known Supreme Court decisions that limit his power to prosecute citizens’ speech.

It's not a good idea to let the government ban what it views as "hate speech," because many commonplace views that are not in fact hateful have been banned under overbroad campus hate-speech and "harassment codes" struck down by federal judges. For example, commonplace views about affirmative action, feminism and the death penalty have been punished under campus hate speech and harassment codes. (See the examples cited in Brief of Amici Curiae Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, 1998 WL 847365, filed Dec. 8, 1998.)

Another area of ignorance involves the First Amendment's Establishment Clause, which was intended to prevent the government -- not private individuals or institutions -- from promoting a religious viewpoint. Many government officials wrongly believe the Establishment Clause restricts private religious speech and proselytizing, even though the Supreme Court has said such speech not only is protected, but lies at the heart of the First Amendment's Free Speech Clause. As the Supreme Court has emphasized, “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” (Board of Education of Westside Community Schools v. Mergens (1990).

But this distinction seemingly was lost on an IRS employee, who told a conservative anti-abortion group -- one forced to wait two years for the IRS to approve its application -- that, in essence, it needed to keep its religious beliefs to itself. According to reports, IRS Exempt Organization Specialist Sherry Wan told the group "in March 2012" that, "in order to obtain a tax exemption, 'You cannot force your religion or force your beliefs on somebody else…. You have to know your boundaries. You have to know your limits. You have to respect other peoples' beliefs.'” This would certainly come as a surprise to many of the nation's churches, which are tax-exempt organizations despite preaching religious tenets that are in complete contradiction to "other peoples' beliefs." The Supreme Court's Rosenberger decision says the government may not discriminate against groups based on their having a religious message, nor may it deny them equal access to discretionary government benefits such as tax-deductions and subsidies.

Note that the group sought a tax-exemption only for itself to not have to pay taxes on the gifts it received as a 501(c)(4). It was not seeking to make donations to it tax-deductible for its donors. Donors to 501(c)(4) organizations cannot claim tax exemptions, and their donations are not tax-deductible (the way a donation to a less political 501(c)(3) is). Thus, the argument by some progressives that the IRS needed to investigate these groups to keep shadowy right-wing billionaires from deducting veiled campaign spending has no basis in reality. Such billionaires would get no tax-deduction for their contributions even if the IRS approved such groups for 501(c)(4) status. The claim that the IRS's harassment may not have been viewpoint-discriminatory in violation of the First Amendment is equally baseless).