By / Aug 3

A survey by Pew Research taken in 2019 found the vast majority of Christian teenagers (86%) attend public schools. Even among evangelicals, the Christian group with the most children being homeschooled or in private school, the rate is more than 3 in 4 (82%). Yet while most teens (68%) report seeing at least one type of religious expression or activities in their public schools often or sometimes, fewer than half (41%) say they commonly see more than one of the most common religious behaviors, such as praying at lunch or inviting a classmate to church.

The reason for the lack of expression may be because students have misperceptions of what is allowed in public schools. Many students and parents are aware that the U.S. Constitution, through the First Amendment, guarantees the right of freedom of religion and expression for every citizen. But they might not know that these rights don’t end when students step onto school grounds or when parents interact with public educational institutions.

Here’s an overview of these rights and how they apply to Christian parents and students in public schools:

The right to pray — While mandatory prayer orchestrated by schools is unconstitutional, students have the right to pray voluntarily. This means Christian students can pray before meals, before tests, or during any free moments. They can do so individually or in groups, as long as it’s not disruptive. Additionally, schools cannot interfere with or discourage these private prayers.

The right to express religious beliefs — Students have the right to express their beliefs in assignments, artwork, or other school activities unless it disrupts the educational process. For instance, if a student decides to write an essay on Jesus as their hero, they should be graded based on the quality of their work, not penalized because of the religious content.

The right to form religious clubs — Under the Equal Access Act, if a school allows non-curricular clubs, it cannot deny students the right to form religious clubs, including Christian clubs or pro-life clubs. These clubs should have the same access to facilities and announcement systems as other clubs.

The right to wear religious symbols — In general, Christian students have the right to wear religious symbols. However, any restrictions should be consistent and apply to all type of belief or non-belief. For instance, if a school bans all necklaces for safety reasons, then this would apply to religious symbols as well.

Opting out of assignments or activities — Christian parents have the right to request that their child be exempt from an activity or assignment that conflicts with their religious beliefs. Schools usually handle this on a case-by-case basis, but generally, an alternative assignment or activity will be provided.

Access to religious materials — Just as students can access non-religious materials in school libraries, they should be able to access Bibles or other Christian literature. Schools cannot prevent students from reading religious materials during free reading times.

Celebrating religious holidays — While public schools can’t endorse or promote a particular religious holiday, they can teach about them. Students are also allowed to say “Merry Christmas” or “Happy Easter” and share their personal beliefs about these holidays.

Distribution of religious material — While schools can set limits on where and when materials are distributed to prevent disruption, they can’t single out religious materials for special restrictions. If a student wants to hand out Christian flyers or invitations to a church event, they have that right, given that they follow the same rules applied to non-religious materials.

The right to involve legal authorities or counsel — If Christian parents or students believe their rights are being violated, they have every right to seek legal advice or involve authorities to ensure their rights are upheld.

It’s important to note that while Christian students and parents have these rights, we also have the responsibility to exercise our liberty in a respectful manner and in a way that doesn’t infringe on the rights of others (Romans 12:18). Mutual respect and understanding are key to coexisting harmoniously in an educational setting where there is a diversity of religions and belief systems.

Public schools serve a diverse population, and while they are secular institutions, they should respect and accommodate the religious freedoms of all students and parents, including Christians. Awareness of these rights ensures that Christian parents and students can confidently navigate the public school system while upholding our religious beliefs and expressions.

By / Mar 27

On Feb. 22, 2023, the Department of Education (ED) released a proposed rule related to the free exercise and free speech of faith-based organizations on college campuses. This new rule rescinds two provisions of the 2020 Trump-era “Free Inquiry Rule” which expanded First Amendment freedoms in ED higher education grant programs. 

On Friday, the ERLC filed public comments in opposition to the change. 

What does this rule do?

The proposed changes from ED weakens protections for faith-based groups on campus and limits their ability to fully participate in student life without compromising their religious beliefs.

The stated intention of this proposed rule is “to rescind regulations related to religious student organizations at certain public institutions of higher education (IHEs) that prescribe a novel role for the Department in enforcing grant conditions related to religious student organizations.” ED claims that the regulations are “not necessary to protect the First Amendment right to free speech and free exercise of religion; have created confusion among institutions; and prescribe an unduly burdensome role for the Department to investigate allegations” of discrimination against religious groups on college campuses.

Despite these claims, ED proposes to rescind two provisions from the 2020 final rule that require all public colleges and universities that are federal grant recipients to comply with the First Amendment. The rule, as enacted in 2020, provides clear protections for these groups, guaranteeing that: 

  • they are officially recognized by the school administration as an official organization, 
  • are able to access campus meeting spaces, 
  • and are able to receive student fee funds like all other groups on campus. 

Each of these assurances are critical to a student group’s ability to participate in campus life. 

Without official recognition on campus, a group’s ability to meet on campus, reserve meeting space, and advertise their events can be greatly curtailed. If student groups are denied access to the pool of funds reserved for all student groups, they are unable to host events, advertise their meetings, or participate in other campus activities. 

Why is this problematic?

Religious groups on campus play an important role in forming students and contributing to campus life. Students’ rights to express their faith and live in congruence with their conscience and faith is a fundamental bedrock of American life and does not end when they cross on to campus property. 

Without the clear protections found in the 2020 rule, the rights of students to freely exercise their faith may be eroded by an administration that finds the tenets of a group’s faith as incongruent with the cultural mores of the day. This is especially worrisome for minority groups, whose deeply held religious beliefs may not align with the prevailing beliefs of the secular institution. 

Prior to the enactment of the 2020 rule, there was confusion across the country amongst campus administrations as to how and when to uphold the First Amendment in regards to religious groups. Countless groups were denied access to buildings, funds, and status on the very basis of their religious status. For example: 

  • In 2018, Embry Riddle Aeronautical College denied a religious student group official recognition because of its requirements that its leaders adhere to the tenets of their faith. 
  • In 2006, the University of Georgia administration denied recognition to a religious student group because of its religious leadership and membership requirements. 
  • In 2009, the University of Texas ruled that a religious group would no longer be recognized because it required its members to agree with its religious beliefs. 

And these examples only scratch the surface. The Christian Legal Society has compiled a list of hundreds of similar instances of discrimination and First Amendment violations of religious groups on campus across the country. 

Without this rule in place, it is likely that more student groups will face similar discrimination, preventing them from contributing to their college campuses without compromising their deeply held beliefs.

How has the ERLC responded?

The ERLC has submitted public comments laying out these concerns with the proposed rule and urging these agencies to reconsider making these changes. Faith-based organizations and students should not be placed under special burdens because of their religious tenets and should be able to freely live out their religious beliefs on campus. 

The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the protection of religious liberty and free speech.

By / Jul 19

In a unanimous decision, the federal court for the 8th Circuit held that administrators at the University of Iowa are violating the First Amendment by removing Christian, Muslim, and Sikh student organizations for choosing student leaders who share the group’s mission and values. The court’s ruling of InterVarsity v. University of Iowa follows a series of recent decisions that uphold the First Amendment’s free exercise clause and specifically rejects skewed applications of anti-discrimination policies based on a leader’s viewpoints. 

What is this case about?

InterVarsity Christian Fellowship has thrived on the University of Iowa’s campus for 25 years with the mission of “courageously proclaiming Jesus as Lord and Savior, engaging in discipleship around Scripture, and loving people of every ethnicity and culture.” The University of Iowa chapter of InterVarsity has been recognized for its excellence in community service and student engagement, but on June 1, 2018, the university threatened deregistration for violating nondiscrimination policies. 

It is only logical for an organization’s leaders to share its beliefs and priorities, and the process of determining a leader’s position based on his or her ability to further a group’s mission has never been deemed “discriminatory,” at least not under the law. After InterVarsity responded with a reasonable appeal and explanation, the university deregistered the group and barred it from operating on campus. The university went as far as to say the group was engaging in discriminatory activity by simply “encouraging” students to live by a shared mission. Thirty-eight other student groups, mostly religious, were deregistered that summer for noncompliant leadership requirements. Becket sued the university on behalf of InterVarsity Christian Fellowship on Aug. 6, 2018, and InterVarsity v. University of Iowa was decided unanimously in favor of InterVarsity on July 16, 2021.

What is the significance of this case?

This case protects students and organizations from differential treatment based on university officials’ viewpoints. Universities are spaces for the competition of ideas, but at the University of Iowa, administrators imposed their own opposing views on religious groups. Political and ideological groups, sororities and fraternities, and sports clubs, who used similar vetting processes for leaders, were left untouched. The 8th Circuit left no room for discussion about the constitutionality of this oppressive strategy. Hopefully, the uncontested decision sends a clear message to other university, college, and high school administrators that a public institution must remain a place where students learn and share ideas independent from a leader’s preferential control. If educators at the University of Iowa want a closed environment, they should look for a job at a private institution. 

What does this mean moving forward?

According to Becket, this the third case of its kind in recent months (InterVarsity v. Wayne State and BLinC v. University of Iowa). The increase in religious freedom cases communicates a couple of important messages. First, constitutional rights such as freedom of speech, freedom of religious exercise, and freedom of association are being challenged frequently, especially on college campuses. Secondly, lower courts are following the lead of the current Supreme Court and hearing cases related to these foundational freedoms in an effort to clear up any gray areas with increasing enforcement of antidiscrimination policies in public institutions and municipalities. 

Ultimately, today’s decision affirms students’ First Amendment rights while attending public universities and denies leaders of any public institution the ability to define discrimination based on personal views. According to Becket, “the Court communicated the extremity if the University’s overreach, saying it would be “hard-pressed to find a clearer example of viewpoint discrimination.” Nondiscrimination policies are meant to protect, not to create a new form of oppression based on who the person in power wants to accommodate.

The ERLC continues to stand for the religious liberty of all in the U.S. and throughout the world and will continue working to ensure that religious liberty is honored and protected.

ERLC intern Anna Claire Noblitt contributed to this article.

By / Apr 12

Last week was a particularly busy week for the technology industry at the nation’s highest court. First, the United States Supreme Court ruled in Google’s favor in a decadeslong court battle with Oracle over the use of certain software code to build the Android operating system. Oracle claimed that Google’s use of the code violated federal copyright law. Then, the high court released its decision in the case Biden vs. Knight First Amendment Institute at Columbia University. This particular case was ruled moot, and the lower decision was dismissed. The case was originally titled Trump vs. Knight. It was changed with the inauguration of Joseph R. Biden since the case revolved around the question of the president’s ability to block access to the public on a social media platform.

What was the case about?

The original lawsuit was filed back in July 2017 by the Knight First Amendment Institute and seven social media users against President Trump on account that he had blocked these seven individuals on Twitter after they criticized him or his policies. Being blocked by the president meant that these users could no longer see or respond to his posts on the platform. As veteran court reporter Amy Howe wrote, “The plaintiffs alleged that blocking them on Twitter violated the First Amendment, and the district court agreed. The U.S. Court of Appeals for the 2nd Circuit upheld that ruling.” The lower court ruled that the president’s Twitter account was a public forum and that the government violated the rights of these individuals by blocking access to it.

On Aug. 20, 2020, a petition for a writ of certiorari was filed. The Supreme Court agreed to review the case, but it was also during an election year. In January, the Trump administration filed a brief indicating to “the justices that, although the 2nd Circuit’s decision was worthy of their review, the case would become moot once Joe Biden succeeded Trump as president on Jan. 20.” Amy Howe explains, “Trump had been sued as the president, rather than in his personal capacity, the administration explained, but Biden would not have any control over Trump’s Twitter account.” Then after the attack on the United States Capitol over alleged election fraud, President Trump was permanently suspended from Twitter over the claim that he incited the violence (even though the administration said that this suspension could be overturned, so that fact should not have bearing on the case.) All of these shifting circumstances ultimately led the court to grant the petition for a writ of certiorari, vacate the judgement, and remand the case back to the Second Circuit with instruction to dismiss the case as moot.

What does this case have to do with online content moderation?

On April 5, Justice Clarence Thomas released a concurring opinion alongside the court’s ruling. Justice Thomas explained in detail the court’s deliberations and the reasoning behind the decision to grant the petition for a writ of certiorari. But he went on to connect this case to the larger questions surrounding the immense responsibility and control that certain technology companies have in civic discourse given our public dependence on and the massive size of technology companies such as Facebook, Twitter, Amazon, and Google.

Justice Thomas writes, “Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” He went on to state that the government might have a compelling interest to intervene in this new power dynamic by possibly limiting the right of a private company to exclude. Justice Thomas explained, “If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.” He submitted two possible legal doctrines for consideration, designating social media as “common carriers” or as “public accommodations,” both of which are highly controversial in digital governance debates, especially among legal media scholars.

Justice Thomas argued that the “common carrier” designation has been applied to other industries with considerable market size, such as those in transportation and communication. These industries are given special privileges by the government, but also have restrictions placed on their ability to exclude. “By giving these companies special privileges, governments place them into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.” This particular argument may overlook the difference between social media as simply a carrier of information, rather than a curator of that information posted by users. 

The other designation of “public accommodation” would apply regardless of the relative market size of the companies, given the ongoing scholarly debate about whether market power is a necessary aspect for a company to be considered a common carrier. Justice Thomas wrote that these companies may not “not ‘carry’ freight, passengers, or communications,” but nevertheless they could have their right to exclude curtailed given their public utility. “If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.” While he acknowledges that technology companies do indeed have their own First Amendment rights, he nevertheless argues that these rights may need to be diminished in light of the influence this industry has over our public discourse. This is a complex situation, especially for conservatives who traditionally resist the government’s intrusion into the rights of individuals and corporations.

Overall, Justice Thomas explores each of these options as well as their potential pitfalls throughout the concurrence. He rightly points out that these decisions would need to be enacted by various legislatures, but they also might be under the prerogative of the courts depending on the contours of the cases brought forth. This opinion, while not holding any enforceable action, is significant because a sitting Justice of the Supreme Court is making these types of arguments to reign in the power of the technology industry—an issue that both Democrats and Republican have been pursuing , even if on different ideological grounds.

What does this mean?

Justice Thomas acknowledged the tenuous realities in the current public policy debates over the role that these digital platforms play in our public discourse in light of their immense size and influence, including their ability to moderate user content. He is correct in saying that applying old doctrines to the new challenges of digital platforms is an extremely complicated matter, whether it be on issues of free speech, questions of public accommodation, or the nature of religious expression online.

As legal expert and free speech attorney David French correctly states, “Millions of Americans are deeply concerned about the power and reach of America’s largest tech companies, but their concerns often diverge sharply depending on their partisan affiliation.” French goes on to say, “The two sides are increasingly united in wanting more government regulation. They’re deeply divided as to what those regulations should say.” French, as others have pointed out, is concerned about government intervention in these matters since it may jeopardize the countless First Amendment victories that have been forged in recent years.

While Christians may disagree about the best path forward in these particular debates, we all must acknowledge that we live in a time where religious speech is increasingly seen as at odds with acceptable public discourse and free expression is often hampered in the pursuit of secularism. We need more believers engaged in this discussions who understand that the technology industry must be a major element in a full-orbed public theology. These types of decisions are crucial for the health of our democracy and the future of religion in the digital public square. 

Even with the immense complexity of these debates, one thing is abundantly clear: the dignity of our neighbor is at stake around the world. We must keep that truth central to this debate over digital governance, whether here in the United States or abroad under the repressive hand of authoritarian regimes. Though these issues may at times seem just to be about tweets, posts, and even the contours of particular content moderation policies, they must be seen as ways that human beings, created in God’s very image, are able to communicate, express themselves, and do life in an ever-increasing digital society.

By / Mar 10

In an 8-1 victory for religious liberty, the Supreme Court ruled Monday in Uzuegbunam v. Preczewski that governments can be held accountable for past violations of First Amendment freedoms. Jeff Pickering, Chelsea Patterson Sobolik, and Travis Wussow welcome lawyer and free speech advocate Casey Mattox to the roundtable to talk about the decision and why it matters.

Guest Biography

Casey Mattox is vice president for legal and judicial strategy at Americans for Prosperity, where he advocates for a legal system that respects the rule of law and protects individual liberty. For over fifteen years before joining Americans for Prosperity, Casey’s legal career focused on defending the First Amendment rights of students, faculty, families, healthcare workers and religious organizations. He has litigated in 35 states and also testified three times before congressional committees. Casey has a J.D. from Boston College School of Law and a B.A. in Government and History from the University of Virginia.

Resources from the Conversation

By / Feb 3

Content moderation is difficult work for any social media company. Every day millions of posts and messages are shared on these platforms, most are benign in nature but as with anything there will be abusive, hateful, and sometimes violent content shared or promoted by certain individuals and organizations. Most social media companies expect their users to engage on these platforms within a certain set of rules or community standards. These content policies are often decided upon with careful and studied reflection on the gravity of moderation in order to provide a safe and appropriate place for users. It is an admittedly difficult and thorny ethical issue though because social media has become such a massive and integral part of our diverse society, not to mention the hyper politicization of such issues. 

Over the years, content moderation practices have come under intense scrutiny because of the breadth of the policies themselves as well as their misapplication—or more precisely the inconsistent application—of these rules for online conduct. Just last week, The Daily Citizen—the news arm of Focus on the Family—was reportedly locked out of their account due to a post about President Biden’s nomination of Dr. Rachel Levine to serve as assistant secretary of health for the U.S. Department of Health and Human Services (HHS). The Daily Citizen’s tweet was flagged by Twitter for violating its policy on hateful conduct, which includes but not limited to “targeted misgendering or deadnaming of transgender individuals.” This broad policy seems to include using the incorrect pronouns for individuals, using the former name of someone after they transition and identify by another name, or—in the case of The Daily Citizen’s tweet—stating the biological and scientific reality of someone’s sex even if they choose to idenitfy as the opposite sex or derivation thereof.

After The Daily Citizen appealed the decision, the request was subsequently denied by Twitter’s content moderation team and the organization was left with the choice of deleting the violating tweet or they would continue to be locked out of their account. It should be noted that the account was not suspended or blocked, which has been the case in other instances of policy violations, such as former President Trump’s recent suspension. The Daily Citizen decided to keep the tweet up and have been unable to use their account since.

The purpose of content moderation

The implementation of content moderation practices is actually encouraged by Section 230 of the 1996 Communication Decency Act, which was a bipartisan piece of legislation designed to promote the growth of the fledgling internet in the mid-1990s. Section 230 gives internet companies a liability shield for online user content—meaning users and not the platforms themselves are responsible for the content of posts—in exchange for encouraging “good faith” measures to remove objectionable content in order to make the internet a safer place for our society.

These “good faith” measures are designed to create safer online environments for all users. The debate over content moderation often center though on exactly what these measures are to entail, not the presence of the measures in the first place. Without any sort of content moderation, social media platforms will inevitably be used and abused to promote violence, true hateful conduct, and may become a breeding ground for misinformation and other dangerous content. Simply put, without moderation these platforms would not be a place anyone would truly feel comfortable engaging on each day nor would it be safe to engage in the first place. In general, content moderation policies are for the common good of all users, but the details and breadth of specific policies should at times be called into question as to their effectiveness or dangerous consequences for online dialogue.

Free speech

In these debates over content moderation, questions about the role of free speech abound. The First Amendment guarantees the freedom of speech for all people. But it only protects citizens from interference by the government itself. The First Amendment’s free speech protection does not apply to the actions of a third party, such as a private social media company governing certain speech or implementing various content moderation policies. A helpful way to think about free speech in this instance is how Christians have rallied around the ability of other third parties to act in accordance with their deeply held beliefs and use their own free speech not to participate in a same-sex wedding, as in the case of Baronelle Stutzman and Jack Phillips. The government does not have the right, nor the authority, to force a third party to violate their deeply held beliefs outside of a clear and compelling public interest that cannot be accomplished by a less invasive manner.

Twitter is within its rights to create content moderation policies and govern speech on their platforms as they see fit, but these policies should take into account the true diversity of thoughts in our society and not denigrate certain types of religious speech as inherently hateful or dangerous. And content moderation policies are actually encouraged by provisions in Section 230. But that does not in any way mean that those policies are not able to be scrutinized by the public who have a choice on whether or not to use a particular platform and the freedom to criticize policies they deem deficient or shortsighted.

Dangerous and misguided policies

Even though Twitter, as well as other companies like Facebook, cannot actually violate one’s free speech, they are accountable for the policies that they craft as well as the deleterious outworkings of misguided and at times poorly crafted policies. These overly broad policies often actually limit the free exchange of ideas online and—in the case of The Daily Citizen’s post removal—actually censor free expression and cut back on a robust public dialogue, which is vital to a functioning democracy and society. 

Twitter’s hateful conduct policy begins by stating “You may not promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.” This broad definition of hateful conduct is then subsequently expanded to include nearly every form of speech that one may deem offensive, objectionable, or even simply disagreeable.

To Twitter’s credit, they do seek “to give everyone the power to create and share ideas and information, and to express their opinions and beliefs without barriers.” They go on to say that “Free expression is a human right – we believe that everyone has a voice, and the right to use it. Our role is to serve the public conversation, which requires representation of a diverse range of perspectives.” But this lofty goal of free expression is actually stifled and in many ways completely mitigated by promoting some speech at the expense of other speech deemed unworthy for public discourse, even if that speech aligns with scientific realities which are taught and affirmed by millions of people throughout the world, including but not limited to people of faith.

Civil disagreements over the biological and scientific differences between a man and woman simply do not and cannot—especially for the sake of robust public discourse—be equated with hate speech. And any attempt to create and enforce these types of broadly defined policies continues to break down the trust that the public has in these companies and the immense responsibility they have over providing avenues for public discourse and free expression given the ubiquity of these platforms in our society. In a time where there is already a considerable amount of distrust in institutions, governments, and even social media companies themselves, ill-defined policies that seem to equate historic and orthodox beliefs on marriage and sexuality with the dehumanizing nature of real hate speech and violent conduct only widen the deficit of trust and increases skepticism over the true intention behind these policies.

Christian engagement in content moderation

When Christians engage in these important debates over content moderation and online speech, we must do so with a distinct view of human dignity in mind. It is far too easy in a world of memes, caricatures, and 280 character posts to dehumanize those with whom we disagree or seek to be disagreeable in order to gain a following. We must champion the dignity of all people because we know that all people are created in the image of God and thus are worthy of all honor and respect. And part of championing this dignity is also speaking clearly about the dehumanizing effects of ideologies like transgenderism that tend to equate someone’s identity solely on the basis of their sexual preference or desires. We should advocate for better and more clearly defined policies because these policies affect our neighbors and their ability to connect with others.

When we engage on these important matters of social media and content moderation, we also must do so informed on the complexity of the situations at hand with clarity, charity, and most of all respect even for those with whom we deeply disagree. The Bible reminds us that “we do not wrestle against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places” (Eph. 6:12). Spiteful, derogatory, arrogant, and dehumanizing remarks about fellow image bearers are unbecoming of the people of God and this is not limited to issues of sexuality or transgenderism. These types of statements are becoming all too common online in our social rhetoric, even among professing Christians. It is past time for each of us to heed the words in the letter of James and seek to tame our tongue lest it overcome us with its deadly poison (James 3:8) and lead us down the same path of those in which we disagree over fundamental matters of sexuality and even issues of content moderation.

When we engage in these important issues and seek to frame debates over online speech, we must also do so with an understanding of the immense weight and pressure that many in content moderation face each day. While we may think that the tweet or post that was flagged is perfectly appropriate, we must remember that often the initial decisions on moderation are made with help of algorithmic detection. Often these AI systems are used to cut down on the amount of violating content but these systems do make mistakes. Upon appeal, these decisions are then handed over to human reviewers who may only have an extremely short window to make a call given the sheer amounts of content to review. This does not mean that these decisions are always correct or even that the policies driving these content decisions are helpful or clearly defined. The question isn’t whether discrimination or bias exists in these discussions, but where the lines are drawn, by whom, what worldview drove their creation, and the ability to appeal decisions on the merits.

Christians must also realize that in a rapidly shifting and secularizing culture, we will naturally be at odds with the mours of the day but that should not deter us from speaking truth, grounding in love and kindness, as we engage in the heated debates over online speech, social media, and content moderation. But our hope and comfort doesn’t come from better policies or consistent application across these platforms. Even if it feels as though the ground is shifting right beneath us and as there are vapid calls to “get on the right side of history,” we can know and trust that biblical truth and human anthropology isn’t about power or control but about pursuing the good of our neighbor in accordance with the truth of the One who created us and ultimately rescue each of us from our own proclivities toward sin and rebellion.

By / Dec 14

In recent months, a new social media platform gained growing popularity in light of controversies over content moderation and fact-checking on traditional social media sites like Twitter and Facebook. Parler was launched in August of 2018 by John Matze, Jared Thomson, and Rebekah Mercer. While it still has a smaller user base than most social platforms at just over 2.8 million people, the app saw a surge in downloads following the November 2020 presidential election and has become extremely popular in certain circles of our society. It became the #1 downloaded application on Apple and Google devices soon after the 2020 presidential election, with over 4 million downloads in just the first two weeks of November, according to tracking by Sensor Tower.

Here is what you should know about this social media application and why it matters in our public discourse.

What is Parler?

Parler, named after the French word meaning to speak, is described as a “free speech” alternative to traditional social media sites like Twitter and Facebook. The company’s website describes the platform as a way to “speak freely and express yourself openly, without fear of being ‘deplatformed’ for your views.” Parler intentionally positions itself as the “world’s town square,” and CEO John Matze said of the app, “If you can say it on the street of New York, you can say it on Parler.”

Parler is a microblogging social service, very similar to Twitter, where users are encouraged to share articles, thoughts, videos, and more. The platform states that “people are entitled to security, privacy, and freedom of expression.” This emphasis on privacy is seen in the ways that Parler will keep your data confidential and won’t sell your data to third parties services, which is a complaint about the nature of other platforms and their business models based on ad revenue. Currently, Parler does not have advertisers on the platform, but they have plans to allow advertisers to target influencers instead of regular users.

Posts on the platform are called “parleys,” and the feed is broken up into two sections namely parleys and affiliate content, which functions like a news feed of content providers for the platforms. To share content from someone else, a user can “echo” a certain post or piece of content.

The platform also has a “Parler citizen verification,” where users can be verified by the service in order to cut down on fake accounts and ones run by bots. Users that submit their photo ID and a selfie are eligible for verification. Once verified, users will see a red badge on their avatar indicating that they are a Parler citizen. Parler also has a “verified influencer” status for those with large followings who might be easily impersonated, very similar to the “blue check” icon on Twitter.

Does Parler censor or moderate content?

The company claims that it does not censor speech or content, yet it does have certain community standards much like other platforms, even if those standards are intentionally set low. The community standards are broken into two principles: 

  1. Parler will not knowingly allow itself to be used as a tool for crime, civil torts, or other unlawful acts.
  2. Posting spam and using bots are nuisances and are not conducive to productive and polite discourse.

Outside of these two community standard principles, Parler does have a more detailed account of the type of actions that fall under the principles. The platform is intentionally designed in order to give users some tools to deal with spam, harassment, or objectionable content including “the ability to mute or block other members, or to mute or block all comments containing terms of the member’s choice.”

Overall, Parler is designed to be an alternative platform for those who do not agree with the community standards and policies of other social platforms. The company states that “while the First Amendment does not apply to private companies such as Parler, our mission is to create a social platform in the spirit of the First Amendment.” This is an important point in the debate over content moderation on other platforms though because as the company points out, the First Amendment does not apply to private companies but was written to reflect the relationship between individuals and the state. 

Why is Parler controversial?

As the platform has gained prominence in certain segments of American life, Parler has expanded its user base in large part as a reaction to the content moderation policies on other platforms. Because it has promised to allow and highlight content that other services deem misinformation, contested claims, and at times hate speech, Parler has been characterized by what it allows its users to post without fear of removal or moderation.

Relying on users to moderate or curate their own feeds, Parler seeks to abdicate themselves of any responsibility of what is posted on their platform. The application has also become incredibly partisan, with a large number of users joining the platform after the 2020 presidential election amidst the growing distrust in the ways that other social media label controversial content, misinformation, and fake news.

Currently, Parler has a large number of users from one side of the political spectrum, which can at times lead to a siloing effect where a user only sees one side of an argument. This was one of the issues of traditional social media that Parler set out to overcome with its lax moderation policies in the first place.

Is it a safe platform?

Parler states that any user under 18 must have parental permission to gain access to the application, and all users under 13 are banned. But the service does not currently have an age verification system. Users can also change settings on their account to keep “sensitive” or “Not Safe for Work” content from showing in their feeds automatically. The Washington Post also reports that Parler does not currently have a robust system for detecting child pornography before it is viewed or potentially flagged and reported by users. A company spokesman has said, “If somebody does something illegal, we’re relying on the reporting system. We’re not hunting.”

Given its lack of robust content moderation policies, Parler has drawn a considerable number of users from Twitter and other platforms who decry that their views were censored or their accounts banned. Many conservative elected officials and news organizations have joined the platform, which hopes to attain a critical mass of users large enough to sustain the platform moving forward. Parler currently does not have the amount of brands or companies that other platforms have, which can be needed for a platform to flourish as an information source and connectivity tool for users.

Parler banned pornography on the platform but in recent months changed its content moderation policies to allow for pornography on the platform. This aligns it more with Twitter’s policy allowing this graphic content online. Parler’s approach to moderation can be seen in recent comments by COO Jeffrey Wernick to the Post in response to allegations of the proliferation of pornography on the site. Wernick responded that he had little knowledge of that type of content on the platform, adding, “I don’t look for that content, so why should I know it exists?” He later added that he would look into the issue.

Since the shifts in policy in recent months, Parler has suffered from issues surrounding the proliferation of pornography and spam, which should come as no surprise as the pornography industry has been using innovative technology from the early days of the internet. Parler states that it allows anything on its platform that the First Amendment allows. The United States Surpreme Court has declared that pornography is constitutionally protected free speech.

It should be noted that Facebook, Instagram, and YouTube ban all pornographic imagery and videos from their platforms. Facebook and Instagram use automated systems to scan photos as they are posted and also rely on a robust reporting system for users to flag content that may violate the company’s community standards. While Twitter’s policies allow for pornography, it does employ automated systems to cut down on rapid posting and other spam-related uploads as well as the use of human moderators to cut down on abuse from users and bots.

Should social media companies be able to censor speech and enforce content moderation policies on users?

This is at the heart of the debate over free speech and social media, especially centering around Section 230 of the Communications Decency Act, which is a part of the Telecommunications Act of 1996. Section 230 has been called the law that gave us the modern internet. The law allowed a more open and free market of ideas and for the creation of user-generated content sites.

As the ERLC wrote in 2019, many social conservatives, worried about the spread of pornography, lobbied Congress to pass the the Communications Decency Act, which penalized the online transmission of indecent content and protected companies from being sued for removing such offensive content. Section 230 was written with the intention of encouraging internet companies to develop content moderation standards and to protect them against liability for removing content in order to have safer environments online, especially for minors. This liability protection led to the development of community standards and ways to validate information posted without the company being liable for user-generated content.

Controversy over the limits of Section 230 and ways to update the law have been center stage in American public life for the last few years, especially as the Trump administration issued an Executive Order on the prevention of online censorship. Both sides of the political aisle are debating if it should simply be updated or if the statute should be removed completely.

By / Dec 10

Religious organizations are critical partners with the federal government in its efforts to meet vital needs in communities across the country. Earlier this week, the U.S. Department of Labor (DOL) published a final rule, to ensure that religious institutions receiving federal contracts are provided a religious exemption to discrimination laws. The final rule is significant because it protects the rights of religious organizations to operate in ways consistent with their deeply held beliefs while allowing them to receive similar contracts and funding as their secular counterparts.

Exemptions and discrimination

After the Office of Federal Contract Compliance Programs (OFCCP), which is part of the DOL, published its final rule regarding religious exemption on Tuesday, critics immediately attacked the measure as a “license to discriminate.” Such accusations are, of course, ridiculous. But the fact that these criticisms routinely miss the mark has done little to stop opponents of conscience freedom from speaking against efforts to uphold these constitutionally protected rights.

According to the DOL’s website, “This rule will encourage the full and equal participation of religious organizations as federal contractors. Religious organizations, many of them small nonprofits, provide such essential services as feeding the hungry, supporting refugees, and educating our nation’s students.” In light of this rule, the religious impulses that guide faith-based organizations will not have to be suppressed should they be the recipients of federal contracts.

Rather than targeting those in the LGBT community or any other subset of people, measures such as the DOL’s final rule are aimed at those who are motivated by sincerely held convictions to carry out their work. Our nation’s robust protections for religious freedom guarantee far more than the freedom to worship on Sundays or to privately observe the tenets of one’s faith. These things are protected, but in addition, Americans are also guaranteed the right to practice their religion in the public square. 

Discriminating against religion

If Catholics are motivated by their faith to open an adoption agency, they should be allowed to operate the agency according to their beliefs. If a Jewish group is compelled to open a day school, they should likewise be allowed to carry out that work in ways consistent with their faith. And if a Muslim community is motivated to start a program to mentor children in the inner city, they should enjoy the same freedoms to perform that work. 

While these freedoms are protected by the First Amendment, the benefit of the DOL’s final rule is that it guarantees religious organizations, where applicable, are eligible to receive federal contracts and funding without sacrificing the very convictions that motivated them to perform their work in the first place. Speaking about the rule, Sen. James Lankford (R-OK) noted, “The religious exemption allows religious contractors not only to prefer in employment individuals who share their religion, but also to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor.” 

When it comes to discrimination, measures such as this actually guarantee that religious organizations are not punished by the government on account of their beliefs. A secular entity that performs the same service as a religious entity should not be eligible to receive taxpayer dollars simply because they lack any religious motivation. The DOL’s rule is not about denying the rights of anyone. It is about safeguarding the constitutional rights of millions of religious Americans.

Serving others

Serving others has been at the heart of the Christian faith since its inception. James, the brother of Jesus, described religion that is pure and undefiled before God as “caring for orphans and widows in their distress” (James 1:27). The apostle Paul reminds us that as he preached the gospel of justification by faith alone, he was always mindful to remember the poor (Gal. 2:10). And Jesus, early in his public ministry, announced his calling by unrolling the scroll and declaring, “The Spirit of the Lord is upon me, because he has anointed me to proclaim good news to the poor. He has sent me to proclaim liberty to the captives and recovering of sight to the blind, to set at liberty those who are oppressed, to proclaim the year of the Lord’s favor” (Luke 4:18-19).

Considering that foundation, it is no surprise that Christians, as well as other people of faith, are committed to service and acts of charity for the good of their neighbors. This rule from the DOL on religious exemptions not only protects the rights of religious organizations, but ensures that countless Americans will continue to benefit from the work and ministries of these faith-based entities in the future.

By / Dec 9

Several weeks ago, the ERLC was presented with an invitation to join a brief written by lawyers at the Thomas More Society, in support of one of our SBC entities. We decided to join the brief because of the importance of the underlying religious liberty issues at stake. 

But there’s no avoiding the fact that there were problems with language in the brief, specifically, language and statements that inaccurately describe Baptist polity and church autonomy and that are inconsistent with the positions the ERLC has repeatedly taken. We wish, instead of joining Thomas More Society’s brief, that we had written our own. We fully recognize this brief created concern and unnecessary confusion. Before we say anything else, let us say—we apologize.

Last week, we issued a statement to Baptist Press, focused on the principal point of the autonomy of local churches. But over the last week we’ve asked ourselves how else we can serve Southern Baptists to the best of our ability. One thing that may be helpful is simply more information, particularly on the amicus brief itself and the legal doctrine at the heart of it. We’re happy to provide that information.

The autonomy of the local church

There are few issues nearer the center of what it means to be Southern Baptist than the autonomy of the local church. As Russell Moore has noted, “Some churches and denominations have decisions made at the top—by bishops or other leaders—and these decisions filter down to the churches. Our decisions go the other way. We think every church—no matter where or what its size—is governed by Jesus through his Word and by his gifts and is free from dictation by any other church or by some religious bureaucracy.” In fact, Moore argues, the issue of autonomy is the very reason “the SBC was able to turn around from its direction toward theological liberalism in the 1970s and 1980s toward orthodox, evangelical conviction. The people had the final say.”

This Baptist distinctive is something we point out regularly. For example, in the most recent brief we filed against the governor of New York concerning religious liberty violations, the brief describes the Southern Baptist Convention as “comprised of more than 46,000 autonomous churches and nearly 16 million members.” In a recent legal comment letter to the Internal Revenue Service, we noted that Southern Baptists “are congregationally governed. The key feature of congregational governance is the autonomy of the local church or church-associated organization.”

But autonomy is not only a Baptist theological distinctive but also an important legal category, commonly referred to as the ecclesiastical abstention doctrine or “the doctrine of church autonomy.” This legal doctrine of church autonomy means that the inner workings of local churches are free, or autonomous, from interference from the state. We advanced this argument in another amicus brief we filed in Whole Woman’s Health v. Smith before the Fifth Circuit Court of Appeals. In that brief, we argued that the First Amendment rights held by churches “not only includes autonomy in their selection of religious leaders, but also ‘the freedom to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’” We took a similar position in a brief filed with the Texas Supreme Court alongside the Southern Baptists of Texas Convention and the Christian Life Commission of the BGCT in Diocese of Lubbock v. Guerrero.

To the brief in question, the argument the brief was seeking to establish was not one about “hierarchy” or “umbrella organizations” (and, again, should not have used that language) but rather about the inherently religious character of Southern Baptist cooperative ministry. All Southern Baptist churches are autonomous, self-determining, and subject only to the Lordship of Christ. At the same time, we freely cooperate with each other for the sake of the gospel, and any associations, entities, or conventions are, as the Baptist Faith & Message puts it, “voluntary and advisory bodies designed to elicit, combine, and direct the energies of our people in the most effective manner.” But the fact that they are organized by and for our churches also means these bodies are inherently religious, and therefore protected by the First Amendment and fully autonomous from interference by the state. 

The ERLC, in service to the SBC, has always doggedly opposed state interference with the internal affairs of local churches and religious organizations. This is why we felt it was important to engage in this case in the first place. This does not dismiss concerns about the inaccurate language in the brief, but it does explain our underlying conviction, namely, the conviction that courts have no business interfering with the work of the church, whether deacon meetings or church discipline or even our cooperative gospel work together as Southern Baptists. 

What’s next?

When it comes to defending religious liberty in the judiciary and the Christian ideal of a “free church in a free state,” as the Baptist Faith & Message puts it, we will continue to be tireless in our witness. To that end, we have already filed briefs in a number of cases this year, advocating for religious freedom for houses of worship in the midst of the COVID–19 pandemic, for the religious freedom rights of faith-based adoption and child welfare providers, and in a range of other cases. That will continue.

Moving forward beyond this particular brief, we want to make absolutely sure that we live up to the high expectations we have for ourselves in service to Southern Baptist churches. That begins with a few internal procedural changes to ensure we don’t find ourselves here again. To be specific, the process of drafting and joining amicus briefs regularly involves short timelines, but moving forward we will require a standardized minimum timeline for review. Such a measure would have either corrected the issues with the original brief or prevented our involvement with it.

At the same time, some have wondered, understandably, whether the language in this individual brief could have harmful future consequences. Let us reassure Southern Baptists on this point: an amicus brief is not binding precedent and cannot override the clear, consistent statements Southern Baptists—including the ERLC—have made about the autonomy of the local church. And to be clear, the language about “hierarchy” in this brief is an aberration from the clear pattern of not just how Southern Baptists carry out cooperative ministry together but also from the arguments we have made consistently in a number of legal venues. Finally, know that in the days ahead we will take every opportunity available to us in the judiciary to defend autonomy rigorously and to ensure there is unmistakable clarity on Southern Baptist polity.

By / Dec 4

Late on the evening before Thanksgiving, the Supreme Court issued an unsigned, per curiam opinion in a case titled Roman Catholic Diocese of Brooklyn v. Cuomo on the tensions between religious liberty and pandemic governance. This case dealt with New York Gov. Andrew Cuomo’s “cluster initiative” orders that targeted religious communities, including the Roman Catholic Diocese of Brooklyn and a number of Jewish congregations in Brooklyn. Agudath Israel is represented by the Becket Fund for Religious Liberty in this case. The ERLC filed a brief in support of the Diocese of Brooklyn and Agudath Israel, and we are pleased the court took up the appeal in this case.

While the Supreme Court did not decide the underlying issues in the case, the opinion issued represents a shift in the judicial approach over the last nine months as the COVID-19 pandemic rages through the United States. In response to the pandemic, all Americans are subject to federal, state, and local emergency orders that give governors and local officials broad authority to take measures to slow the spread of COVID-19. It should be noted that in the vast majority of cases, these orders have been implemented in ways that respect fundamental constitutional rights. 

But there have been cases where the government overreached and infringed upon the fundamental religious liberty rights cherished by Americans. Over the last nine months, different courts have reached different conclusions, creating a patchwork of precedents that has resulted in the First Amendment meaning different things depending on where you live. The high court has had a number of opportunities to weigh in and clarify the underlying legal issues, but until last week, the justices declined to do so, even as some members of the court signaled a willingness to rule.

The high court weighs in

Gov. Cuomo’s “cluster initiative” orders limited attendance at worship services in areas of New York where large numbers of Orthodox Jews live. In “orange zones,” worship services were capped at 25, and so-called “red zones” restricted worship gatherings to 10 people. These restrictions were in place regardless of the size of the space or what other measures the house of worship may have in place such as social distancing, masking, and so on.

More to the point, when issuing the “cluster initiative” order, Gov. Cuomo made clear that his target in this case was the Orthodox Jewish community, as our brief argued:

The Governor left no doubt that targeting Orthodox Jews was his primary motivation. He described the problem he sought to address as “predominantly an ultra-orthodox cluster,” adding that he planned to “meet with members of the ultra-Orthodox community tomorrow,” to let them know that “we’ll close the [religious] institutions down” if “you do not agree to enforce the rules.” The Governor also highlighted pictures of Orthodox Jews as allegedly demonstrating “clear violations of social distancing,” wrongly claiming that the pictures were from “the recent past” (one of those photos was of a 2006 funeral). And the Cluster Initiative that the Governor issued matched his discriminatory rhetoric, as it was plainly gerrymandered to target the Orthodox Jewish community.

Both the federal district court and the Second Circuit ruled against the Diocese and Agudath Israel, and both parties appealed to the U.S. Supreme Court on their request for an emergency injunction. The court took up the case and ruled in favor of the religious communities. Enjoining Gov. Cuomo’s order, the court wrote:

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure. 

One of the key issues in this New York case—and many similar cases around the country—is the doctrine of mootness. Under this doctrine, courts can only decide cases that involve a live controversy. Throughout the pandemic, government officials have sometimes changed regulations or converted regulations into guidance on the eve of trial, thereby depriving houses of worship their day in court while protecting their own authority to reimpose the same regulations and start the litigation clock back from the start.

Here, on the actual eve of the court’s decision, Gov. Cuomo switched the zones in question from “red” to “yellow,” arguing that the case was then moot. Thankfully, the Supreme Court issued a ruling, holding that the religious groups “remain under a constant threat that the area in question will be reclassified as red or orange.” This precedent is good news for houses of worship seeking to challenge unequally burdensome government orders as the pandemic wears on.

What’s next?

Last week’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo breathes new life into both of these cases and revives hope among religious liberty advocates that the court will bring uniformity to the law of religious liberty during a pandemic. Further bolstering these hopes, the Court this week issued a brief ruling in a California case, Harvest Rock Church v. Newsom. Using an unusual procedure, the justices ordered the district court in California to revisit Harvest Rock Church’s claims in light of the Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo.

Two similar cases are coming before the justices for consideration, one in Kentucky and one in Nevada. This week, the court will hear a challenge to Kentucky Gov. Beshear’s order closing all private K-12 schools in the state. In that case, a group of schools represented by First Liberty Institute have challenged Gov. Beshear’s orders. The schools won in federal district court and have appealed a loss before the Sixth Circuit to the Supreme Court. While it is true that public K-12 schools were also ordered closed, the schools point to other businesses and spaces similar to classrooms that remain open or have been granted exemptions from the new order.

Later this month, the court will hear a challenge to Nevada Gov. Sisolak’s emergency orders, which placed a hard cap on the size of worship services—regardless of the size of the house of worship or what other measures the church takes—even as casinos are allowed to operate at 50% capacity. In this case, Calvary Chapel v. Sisolak, the church is represented by Alliance Defending Freedom

The ERLC will continue to file amicus briefs and be involved in these cases to defend the fundamental rights of religious liberty throughout the COVID-19 pandemic.