Freedom of Speech

The religious speech of churches and other ministries is not just protected by the Free Exercise Clause, but also the Free Speech Clause of the First Amendment. The Supreme Court has said that religious speech is so important that a Free Speech Clause without religion would be like “Hamlet without the prince.”18

The First Amendment declares in part that “Congress shall make no law . . . abridging the freedom of speech.”19   This is referred to as the Free Speech Clause, and limits the government’s ability to interfere with a ministry’s speech no matter how unpopular, controversial, or disagreeable the ideas may be to others.20   This protection extends beyond mere words to embrace a wide array of expressive activities. In addition to church services, protected speech includes leafleting, street preaching, picketing, concerts, and motion pictures.21

The Free Speech Clause provides such expansive protection that the courts have noted only a few narrowly drawn categories of speech not protected. These include “fighting words” (i.e., close-quarter communications that would immediately provoke a fight), “obscenity” (i.e., depictions of hard-core sexual acts), child pornography, and words that create a “clear and present danger” to public safety (e.g., falsely shouting “Fire!” in a crowded theater).22   All other speech – and especially religious speech – is protected.

A. Protecting the right of churches and pastors to freely speak to their congregations and freely act – from a scriptural basis – on political matters without improper regulation by the government.

Almost all churches are exempt from federal income taxes. As a tax-exempt organization, a church:

(1) is exempt from paying corporate income taxes, and donations to the church are tax-deductible on individuals’ federal tax returns;

(2) may expend funds for religious, charitable, and educational purposes, as well as an insubstantial amount on lobbying to promote or oppose legislation.

But under section 501(c)(3) of the Internal Revenue Code, religious organizations may not “participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office.” Thus, as long as a church does not endorse or oppose a specific candidate who is running for public office, it should have broad freedom to praise or criticize officials for their actions without coming in conflict with the Code.

1. Pulpit Initiative: Challenging IRS restrictions on pastors speaking about political candidates via litigation against the IRS. The prohibition against participation in political campaigns came about in 1954, when Congress amended (without debate or analysis) Internal Revenue Code § 501(c)(3) to restrict the speech of non-profit tax-exempt entities, including churches. Before the amendment was passed, there were no restrictions on what churches could or couldn’t do with regard to speech about government and voting, excepting only a 1934 law preventing non-profits from using a substantial part of their resources to lobby for legislation.

Since the amendment passed, the IRS has steadfastly maintained that any speech by churches about candidates for office, including sermons from the pulpit, can result in loss of tax exemption. The amendment dramatically impacted churches’ exercise of First Amendment rights. Historically, churches have frequently and fervently spoken for and against candidates for office. Such sermons date from the founding of America, including sermons against Thomas Jefferson for being a deist; sermons opposing William Howard Taft as a Unitarian; and sermons opposing Al Smith in the 1928 presidential election. Churches have also been at the forefront of most of the significant societal and governmental changes in our history, including ending segregation and child labor and advancing civil rights.

Ironically, almost 60 years after the amendment passed, and despite the strict IRS interpretation of it, the IRS has never punished a pastor for the content of his pulpit sermon.23   To date, there is no reported situation where a church has lost its tax-exempt status or been directly punished for sermons delivered from the pulpit evaluating candidates for office in light of Scripture.

This may be because the IRS does not want to encounter the constitutional issues raised by punishing speech from the pulpit. Alliance Defending Freedom considers the Johnson Amendment to be unconstitutional in restricting the expression of sermons delivered from the pulpits of churches. Alliance Defending Freedom therefore began the Pulpit Initiative, a strategic legal challenge to the Johnson Amendment speech ban.

Alliance Defending Freedom considers the Johnson Amendment, when used to restrict speech from the pulpit of a church, to violate the First Amendment to the United States Constitution. The Establishment Clause of the First Amendment states that, “Congress shall make no law respecting an establishment of religion….”24   One principle of the Establishment Clause is that the government must not become excessively entangled with religious affairs. Because the government and the church are distinct from one another under our Constitution, the government may not meddle with internal church affairs. If the government does meddle, and excessively entangles itself with the church, courts will strike the government action as unconstitutional.

This 1954 amendment requires that the government analyze and parse religious speech, which the government is not constitutionally competent to do. As one court stated, “[e]ven assuming [a pastor’s] speech is in some sense political, it is not the role of this Court to draw fine distinctions between degrees of religious speech and to hold that religious speech is protected, but religious speech with so-called political overtones is not.”25   Further, there is no practical way for the IRS to enforce § 501(c)(3) other than to monitor a pastor’s religious speech from the pulpit and make a determination that it is, from its view, too “political.” Such ongoing and pervasive monitoring excessively entangles the government with religion.

The Johnson Amendment also violates the Free Speech Clause. The amendment is a “content-based” restriction on speech, which means that it discriminates against certain speech solely based on the content of the expression. The prohibition also violates the free exercise of religion.

Churches have too long feared the loss of tax-exempt status arising from speech in the pulpit addressing candidates for office. Rather than risk confrontation, pastors have self-censored their speech, ignoring blatant immorality in government, and foregoing opportunities to praise moral government leaders. Pastors who long to be relevant to society and to preach the Gospel in a way that has meaning in modern America have to studiously ignore even the most tumultuous election season lest they draw the attention of the IRS.

Alliance Defending Freedom considers IRS restrictions on religious expression from the pulpit to be unconstitutional. After 50 years of threats and intimidation, churches should confront the IRS directly and reclaim the expressive rights guaranteed to them in the United States Constitution.

If you are ready to speak freely from your pulpit, we urge you to contact Alliance Defending Freedom today to learn how you might stand boldly for faith in this election season.26

2. Protecting the Church against unconstitutional federal and state regulations on influencing legislation.

Churches and other ministries have always had the ability to influence legislation without running afoul of IRS regulations – so long they do not expend a “substantive” part of the organization’s resources.27   Anything less than 10 percent of the ministry’s time and assets is not significant.28   Most churches and ministries do not come even close to this line, since the vast majority of their time and resources is spent on spiritual development.

But some states have attempted to restrict the ability of churches and other ministries to encourage people to vote for legislation according to biblical moral values. While there is usually no outright prohibition on this activity, state laws can place onerous reporting and record-keeping requirements on churches for merely encouraging members to vote for a law protecting marriage, even though they spend no significant amount of money. Such regulations are unconstitutional because they violate the free speech and free exercise rights of ministries.29

Churches and other ministries can express their views on legislation. This can be done through passing out flyers and bulletin inserts, advertising, and speaking from the pulpit. There are no federal laws prohibiting these activities, as long as they are not “substantial.” And state laws that attempt to restrict them through overly burdensome reporting and record-keeping requirements are unconstitutional.

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