Protecting First Amendment Rights to Free Speech and Religious Freedom

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This article is an excerpt from the “2020 Mandate for Leadership: A Clear Vision for the Next Administration.” It looks back at policy decisions made by the Trump administration over the past four years. You can purchase your copy of “Mandate 2020” here.

Free Speech

Three changes have occurred over the past four years. First, in the Supreme Court’s 2017 decision in Matal v. Tam, Justice Samuel Alito delivered the unanimous opinion of the court, writing that “the ‘public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’”

This is a strong barrier to those who seek to restrict speech, but Americans should not forget that in a democracy, majority sentiment can sometimes prove more powerful than court rulings over time.

Other developments have been less positive. Since the inception of the internet, online speech has been almost entirely unregulated, but this is changing rapidly because of America’s major tech companies.

For example, although Google publicly proclaims its support for the freedom of speech, a leaked Google memo called “The Good Censor” shows the company’s skepticism of it.

The memo compares the “American tradition” of free speech to the “European tradition,” saying that America prioritizes “free speech for democracy, not civility,” while the European tradition “favors dignity over liberty and civility over freedom.”

The memo supports the European tradition and argues that all tech platforms are now moving in this direction. Facebook and Twitter are also currently ramping up efforts to ban so-called hate speech.

Conservatives should not forget that these companies have effectively become the public square, and their power to censor and thereby alter public opinion is enormous.

Moreover, America’s colleges and universities continue to clamp down on speech and the freedom of thought.

According to the Foundation for Individual Rights in Education, of 466 colleges and universities reviewed, 133 (28.5%) received a “red light” rating, meaning that an “institution has at least one policy that both clearly and substantially restricts freedom of speech.” This is, it should be noted, a decrease from 2016, when 217 (49.3%) of the 440 schools reviewed received a red light rating.

Although restrictions seem to have declined on campuses (perhaps because of pressure from conservative efforts), the number of voices on the left calling for restrictions on speech continues to mount: Campus speakers, usually conservatives, are now routinely disinvited and protested—sometimes violently—and the number of college administrators charged with enforcing speech codes continues to grow.

A 2019 poll revealed that 46% of college students say the goal of promoting a more “inclusive and welcoming society” is more important than the freedom of speech. Moreover, even if campuses loosen speech restrictions, students are often trained by faculty to oppose free speech.

Needless to say, these students are the next generation of America’s voters, leaders, and intellectuals.

President Donald Trump’s March 21, 2017, executive order gives administrators in 12 executive branch agencies that issue research grants broad discretion to withhold funding from universities that suppress “free inquiry” and seek to “undermine learning.”

This is a commendable first step toward chastening our colleges and universities, but the powers authorized in the executive order have yet to be used.

On the campaign finance front, the courts have relaxed limits on campaign contributions in the years since Citizens United. Most recently, in its 2014 McCutcheon v. Federal Election Commission decision, the Supreme Court struck down aggregate limits on the total amount of money an individual can contribute to candidates or parties in a given election.

While the court recognized that capping the amount of money an individual can give to any one candidate may be justifiable as a way to prevent corruption or the appearance of corruption, it held that aggregate limits cannot be defended on the same grounds.

In seeking to counteract these holdings, progressives have become ever more strident in their challenge to political speech. H.R. 1, the so-called For the People Act of 2019, incorporates the full panoply of progressive campaign finance reform proposals devised over the past decade.

The bill would impose new limits on Super PACs, work to eliminate corporate donations, spend public funds on political campaigns to “level the playing field,” and require many nonprofits to reveal their donors’ personal information as a condition of their political involvement.

Along with tightly limiting direct contributions to politicians and parties—a policy objective already incorporated into federal law—these proposed policies chart the course that the left will pursue in years to come.

Religious Liberty

The Trump administration has taken productive steps to protect and promote the ability of Americans to live out their faith in the public square.

An October 2017 Justice Department guidance set the tone for the entire federal government, instructing agencies and executive departments to accommodate religion in government activities “to the greatest extent practicable and permitted by law.”

Specifically, the Justice Department guidance clarified that the free exercise of religion includes the right to act as well as the right not to act pursuant to religious beliefs, that both organizations and individuals enjoy this freedom, and that Americans do not forego this freedom when they enter the marketplace or public square or when they interact with the government.

Further, the government may not target religious groups through discriminatory enforcement of neutral, generally applicable laws; single them out for special disabilities based on religion; or condition the receipt of federal grants or contracts on altering their character. As a result, a number of agencies have taken positive steps to protect religious liberty.

Rolling back policies set by the Obama administration has been a critical step toward safeguarding religious freedom for all Americans.

The Department of Health and Human Services finalized two rules in November 2018 that provide long-overdue relief to employers, such as the Little Sisters of the Poor, from the requirement that they provide or facilitate access to abortion-inducing drugs and devices for their employees or face crushing fines.

These rules provide exemptions based on religious beliefs and moral convictions, ending a yearslong saga that included two trips to the Supreme Court.

The Department of Health and Human Services has issued waivers from Obama-era regulations prohibiting faith-based foster care and adoption providers that receive federal funding from using religious criteria in placing children in foster homes.

South Carolina sought and received an exemption for Miracle Hill Ministries, a foster care placement provider that is responsible for recruiting 15% of the state’s eligible foster parents and that places children exclusively in Christian homes.

Faith-based providers in other states, such as Catholic Social Services in Philadelphia, have been forced out of business. With more children entering the foster care system because of the opioid crisis, we need more, not fewer, providers in the foster care system. In 2017, nearly 700,000 children spent time in foster care.

The Department of Health and Human Services also created a new Conscience and Religious Freedom Division within its Office for Civil Rights to focus on enforcing existing laws and regulations, such as the Church, Coats-Snowe, and Weldon Amendments, that protect the conscience rights of health care workers.

Similarly, the department promulgated a new rule in May 2019 protecting the ability of health care workers in agency-funded programs to decline to participate in procedures such as abortion, sterilization, and assisted suicide that would violate their conscience or religious beliefs.

The rule also clarifies the ability of the department’s Office for Civil Rights to investigate possible violations and use other enforcement tools to resolve complaints.

The Federal Emergency Management Agency expanded its disaster aid program to allow financial assistance for houses of worship, and Congress codified this expansion in February 2018.

The Justice Department stood up for religious freedom in the courts, including in Jesus Christ Is the Answer Ministries v. Baltimore County, Maryland (challenging the denial of a building permit for an African immigrant congregation); Masterpiece Cakeshop v. Colorado Civil Rights Commission (defending a baker’s ability to operate his business in a manner consistent with his religious beliefs); American Legion v. American Humanist Association (an Establishment Clause challenge to a World War I memorial cross on public land); and Espinoza v. Montana Department of Revenue (defending a state tax credit scholarship program allowing funds to be used at religious schools).

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