How 'Free' Are Pastors' Free Speech Rights?

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WASHINGTON - A debate at the National Press Club, Wednesday, centered on the question of whether pastors should be able to endorse candidates or say whatever they want about politics from the pulpit.

Ben Bull of the Alliance Defense Fund, the Christian legal group that sponsored the debate, said pastors' free speech shouldn't be censored, but that's what present law does.

A 1954 IRS code provision called the Johnson Amendment threatens a church's tax-exempt status when its pastor goes too far politically.

"[It creates] government-favored churches which remain silent and receive tax benefits and churches disfavored by the government because they rebuke leaders and speak out on elections and candidates," Bull explained.

He labeled the amendment unconstitutional and asked, "Do we really want the kind of government surveillance of church sermons that's required to enforce the Johnson Amendment?"

But Barry Lynn of Americans United for Separation of Church and State said it's only fair if churches get special tax exemptions, they should have to accept certain restrictions.

"To allow religious groups to do whatever they want gives them a special right accorded to no one else," he argued.  

Tax expert Donald Tobin of Ohio State University said when churches jump into politics they have to accept the same financial rules as everyone else.

"What they can't do is then say to me 'I have a First Amendment right to speak and I'm entitled to a subsidy from the federal government for that speech,'" he said.

Enforcement Mechanism 'An Atom Bomb'

But law professor Douglas Laycock of the University of Michigan debated the law is far too restrictive, too vague, and too frightening. 

"You don't know when you've talked too much about a moral issue too close to the election so that there's implied endorsement," he began.  "And the enforcement mechanism is an atom bomb.  All your large donors get called in to the IRS for an audit and have their deduction taken away.  That's a risk very few pastors feel they can take."

Bull said one of the reasons the law is so dangerous is because it's so vague.

"The IRS will not tell you exactly what violates the law," he said.  "They will only tell you they will consider all of the facts and circumstances of your situation and then after the fact, tell you whether you'll lose your tax exemption."

"IRS training documents show that within the agency itself, the agents cannot agree on what speech constitutes a violation," Bull added.

Lynn scoffed at that, saying there shouldn't be any problem with vagueness.  He said pastors only need to ask themselves, as Lynn put it, "'Am I about to say something from this pulpit which is designed to promote or oppose the candidacy of someone for public office?'  And if you hear that still small voice in your head coming back and saying, 'Yes, that is my purpose,' then don't say it and you will not get into any trouble."

'We Don't Need Censorship'
            
Bull suggested censoring speech threatens America's marketplace of ideas, and said he's surprised liberals like Lynn favor such censorship.

"He used to say 'if there's an idea you don't like, then we need more speech, not less speech.  We don't need censorship.'  But that's exactly what I'm hearing now.  What are we afraid of?" he asked.

Lynn said as far as he's concerned, the IRS should crack down more.

"It's relatively rare for the IRS to go after institutions for violating this non-partisanship prohibition," he claimed.  "If anything, I believe the IRS is cutting churches too much slack."

Lynn's organization often files complaints with the IRS when Americans United for Separation of Church and State feels pastors or churches have gone too far politically.  Bull said that launches an unfortunate thing for America.

"We have IRS agents sifting through sermons trying to parse when religious speech stops being religious enough and becomes too political.  Clearly this violates the Establishment clause which prohibits excessive government entanglement with religion," he charged.           

But Tobin suggested it's best for a nation when there's some enforced distance between churches and politicians.

"The history of the world is not great when churches and religious institutions are closely tied with a political message, a political leader and a political cause," he said.

Still, at the end of the debate, Bull warned America could be headed where Europe is in some cases: churches threatened if they don't tow the politically-correct line.

"If a church is not politically-correct, the government goes after it," he stated.  "If they don't play ball with the government, if they don't give the government the conditions the government wants, it will retroactively revoke a church's tax-exempt status."

In other words, forcing a church to pay back-taxes for the entire time of its existence, likely bankrupting it and wiping it out.

*Originally aired May 22, 2009

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Paul  Strand

Paul Strand

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As senior correspondent in CBN's Washington, D.C., bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, and Congress.  Follow Paul on Twitter @PaulStrandCBN and "like" him at Facebook.com/PaulStrandCBN.