Three reasons that Houston’s subpoenas are a big deal

October 16, 2014

Public outrage is spreading over the City of Houston’s attempt to force pastors to hand over their sermons and other communications in a case where they are not parties. Just after midnight on Wednesday, Houston Mayor Annise Parker tweeted in defense of her subpoenas, saying pastors’ sermons are “fair game” if they concern an issue where the pastors have opposed government policy. Then Wednesday afternoon her office went into damage control, declaring the subpoenas were a surprise to the city. But around 8 pm Wednesday night the mayor tweeted again in support of an ideological commentary piece that defended the subpoenas. So it seems that the mayor was for the subpoenas both before and after she was against them.

Legal commentary has been skeptical of the city’s sermon demand, but some are still a little too sanguine about it. One is Professor Eugene Volokh. He correctly points out that the First Amendment requires scrutiny on discovery requests of people engaged in free speech. But when he suggests that the pastors might “in principle” be subpoenaed, he cites several cases that are not squarely applicable.

In Houston the pastors are not suing, being sued, helping a criminal investigation, or violating any law. They are being subpoenaed solely because they engaged in free speech and petitioning of the government, and they are being targeted by the government who disagrees with them. This makes the First Amendment interests much stronger than in the situations Professor Volokh cites, where people were sued for harassment or employment discrimination, or were asked to testify at a grand jury’s investigation of a crime, or had brought their own lawsuit and thus were subject to discovery. The pastors here are simply community members who exercised their First Amendment rights against a governmental policy. In fact, in the existing lawsuit it is the government that is accused of wrongdoing (by denying citizens the right to vote on a “bathroom bill”). The First Amendment does not let the government violate citizens’ rights and then, when it gets sued, use court rules as a sword to attack the advocacy rights of its political opponents.

In several cases that Prof. Volokh did not discuss, federal appellate courts have imposed some rigorous requirements in the balancing test used to weigh First Amendment interests against discovery requests. These cases show that the subpoenas here are illegitimate and are not analogous to cases where a pastor is a defendant in a case.

First, while the ordinary discovery standard can merely require that the request be calculated to find any relevant evidence, a request aimed at non-party free speakers requires that the discovery be “highly” relevant, “crucial” to the litigant’s case, and that it go to “the heart of the matter.” Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th Cir. 2010); Black Panther Party v. Smith, 661 F.2d 1243, 1268 (D.C. Cir. 1981); Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981) (same). This lawsuit is about whether the city violated its legal duties by refusing to let the people vote on a bathroom bill. There no relevance, much less “high” relevance, between that issue and what pastors in Houston said about that law (or about anything else).

Second, even if the information sought could be shown to be “highly relevant,” the same cases say it must also be “otherwise unavailable,” the litigant must “exhaust […] every reasonable alternative source” before demanding it from First Amendment actors, and the litigant is “required to attempt to seek information from other likely and reasonably accessible sources.” See id. Perry, Black Panther Party, and Zerilli; see also

Internat’l Union, UAW v. National Right to Work Legal Defense & Education Foundation, Inc., 590 F.2d 1139, 1152 (D.C. Cir. 1979). The information the city needs to defend this case is entirely available from other sources. The actual plaintiffs in the case are the supporters of the petition the city denied, so the city can simply ask them for evidence about the petition process. There is no need to attack non-party pastors with demands for their sermons and communications.

Third, any request impacting First Amendment rights must be “carefully tailored to avoid unnecessary interference with protected activities.” Perry, 591 F.3d at 1161. Careful tailoring precludes the sort of dragnet language often found in discovery requests (demanding “all documents related to” something). Here the city’s demands are massively broad, and they cannot be legitimately narrowed because no specific document that the city wants will be sufficiently relevant to the case. If the city did actually request a specific document, it would be shown to be insufficiently relevant. So lawyers wanting to sustain overbroad subpoenas like this will fight tooth and nail not to name a specific document, but to keep the requests as generic as possible by asking for documents “related to” an issue. They’ll just claim that because the issue is relevant, all documents “related to” it must be too. That kind of request fails both the careful tailoring and highly relevant standards. It is a smokescreen pretending to be narrow, but hiding the fact that all the specific documents within its scope are not crucial enough to the case to trump the pastors’ First Amendment interests.

Rigorous First Amendment protection is needed against government discovery requests to non-parties. Otherwise a citizen’s mere exercise of First Amendment protected activity (like petitioning its government to vote on a controversial law) could subject the citizen to broad document and deposition subpoenas that would dissuade her from speaking in the first place. If court rules are interpreted to allow those burdens—especially if the citizens have publicly opposed the government that is subpoenaing them—it would likely suppress citizen participation in representative government. Citizens would fear that if they publicly advocate and lose the issue, they will be dragged into court by their political opponents, need to hire attorneys, be forced to hand over their private documents and be subjected to hostile depositions. That is far too high a price to impose both on citizens themselves and on the robust dialogue and public participation that are necessary in order to maintain a free society. It is an inquisition tactic used by a government that will not tolerate any dissent from or checks on its power.

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24