Explainer: Recent Supreme Court rulings protect free speech and religious liberty
By / Jul 7

During the last week of June, the U.S. Supreme Court issued rulings in two cases—303 Creative v. Elenis and Groff v. Dejoy—to further protect free speech and religious liberty as basic rights of Americans. Here’s the run-down of what you should know about two of the most important cases of the Supreme Court’s latest term.

303 Creative v. Elenis

The overview: The 303 Creative case was a legal dispute involving graphic designer Lorie Smith who, because of her Christian beliefs about marriage, refused to create a website for a same-sex wedding. The case was about whether a state public accommodation law violates the First Amendment’s free speech protections.

The Colorado law: The law in question is the Colorado Anti-Discrimination Act (CADA), which expanded anti-discrimination protections in such a way that businesses are required to offer the same services to same-sex couples that they offer to heterosexual couples. The case was first filed in 2016, and the district court concluded that applying CADA to 303 Creative is constitutional. On appeal, the Court of Appeals for the Tenth Circuit agreed.

The Supreme Court ruling: However, the Supreme Court ruled in favor of the graphic designer’s free speech, stating that the government cannot compel an individual to speak a certain way or to promote a message with which they disagree. The court specifically clarified that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that require her to include messages with which the designer disagrees. 

The implications to protect free speech: The court’s decision in the 303 Creative case is expected to have a significant impact on the free speech rights of all Americans by reaffirming the right to engage in free speech without worrying about legal repercussions from public officials.

For more on the 303 Creative case, see: Explainer: Supreme Court Rules in Favor of Free Speech in 303 Creative Case

Groff v. Dejoy

The overview: The Groff v. DeJoy case was an employment dispute involving postal Gerald Groff, a Sabbatarian Christian whose beliefs make him unavailable for work on Sundays. Groff claimed that the U.S. Postal Service (USPS) violated his religious freedom by requiring him to work on Sundays delivering packages for Amazon. 

The USPS’ response: The USPS offered Groff certain “accommodations” such as offering to adjust his schedule so he could come to work after religious services or telling him he should see if other workers could pick up his shifts. The USPS even suggested Groff choose a different day to observe the Sabbath. Groff claimed that these supposed accommodations did not eliminate the conflict between his religious practice and his work obligations, and that the USPS had therefore not provided him with a reasonable accommodation.

The lower court ruling: The lower court had ruled against Groff, holding that his request would cause an undue hardship on the USPS and lead to low morale at the workplace when other employees had to pick up his shifts. The lower court ruling relied on the “undue hardship” standard set in the 1977 case, Trans World Airlines, Inc. v. Hardison. 

The Supreme Court’s ruling: However, the Supreme Court issued a unanimous ruling in favor of Groff, stating that federal law requires an employer that denies an employee a religious accommodation must show that the burden of the accommodation would result in substantial increased costs. The ruling also clarifies the definition of “undue hardship” for employers faced with a religious accommodation request.

The implications in favor of religious liberty: The court’s decision strengthens religious liberty in the workplace and reaffirms that employers cannot discriminate against employees on the basis of religion. The ruling will impact the religious freedom rights of all Americans and reaffirms the right to practice one’s religion without fear of discrimination in the workplace.

For more on the Groff case, see: Explainer: Supreme Court Unanimously Rules in Favor of Religious Liberty in Postal Worker Case

Explainer: Supreme Court Rules in Favor of Free Speech in 303 Creative Case
By / Jun 30

Today, the U.S. Supreme Court ruled in a 6-3 decision in the 303 Creative case that the state of Colorado violated the First Amendment rights of petitioner Lorie Smith by enforcing state anti-discrimination laws against her graphic design business, compelling her to speak in a way that violated her beliefs. Justice Gorsuch delivered the opinion of the court, with Justices Alito, Barrett, Kavanaugh, Thomas, and Chief Justice Roberts joining. Justice Sotomayor filed the dissenting opinion, joined by Justices Kagan and Jackson.

ERLC President Brent Leatherwood commented on this ruling:

If the government can compel an individual to speak a certain way or create certain things, that’s not freedom—it’s subjugation. And that is precisely what the state of  Colorado wanted.

Thankfully, the court has stepped in to say that individual rights may not be paved over by a zealous government. Colorado’s scheme of compulsion and coercion against creators has failed once more. 

But the implications of this ruling extend throughout the nation: People are free to speak, create, and operate in ways that are consistent with their deepest-held beliefs—even when those beliefs are deemed culturally unpopular.

What did the 303 Creative case decision say?

Today’s decision is a landmark ruling in favor of free speech. Quoting previous cases, the court highlighted that the framers designed the First Amendment to protect the freedom to think and speak as one wishes. The government cannot suppress speech simply because it deems it “misinformed or offensive” (17). The court emphasized that technological advancements, such as the internet, do not diminish the protections afforded by the First Amendment. 

Though the opinion recognized the important role that public accommodation laws have played and continue to play in our nation, it noted that these laws can “sweep too broadly when deployed to compel speech” (14) and that “no public accommodations law is immune from the demands of the Constitution” (14). The court took an expansive view of what should be considered “speech,” and thus, be afforded First Amendment protections. 

It also rejected arguments made that Lorie Smith was merely facilitating the speech of others through the creation of a website. It also rejected claims that because each creative professional is unique, prospective clients would be unable to find a satisfactory alternative. As Justice Gorsuch wrote, this would mean that “the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise” (15).

Rather, the First Amendment was designed to establish the United States as “a rich and complex place where all persons are free to think and speak as they wish, not as the government demands” (26). Justice Gorsuch clarified, “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive, misguided, or even hurtful,’ but tolerance, not coercion, is our Nation’s answer” (25-26).

Why does this decision in the 303 Creative case matter for Southern Baptists?

This ruling provides yet another legal victory for free speech, affirming that creative professionals possess the First Amendment protections necessary to express their core convictions in the marketplace and public square. The ruling also clarifies the understanding of the Free Speech Clause, which carries positive implications for individuals seeking First Amendment protections in the arts and business sectors. Though this case was a win for free speech, it was also a win for religious liberty.

As Southern Baptists, our beliefs on matters of marriage and gender are core to our convictions, pointing to God’s design and the living picture of Christ and his Church. It is essential that people of faith not only have the ability to believe these fundamental truths but also to express them in the public square.

The First Amendment protects this right, and the court’s ruling affirms these robust constitutional protections for free speech —  even when that speech is culturally unpopular. 

What is this 303 Creative case about?

Lorie Smith, owner of the web design firm 303 Creative, challenged a Colorado law that violates her First Amendment rights—the same law used to target Christian cake designer Jack Phillips in the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case. In that case, the court ruled favorably for Phillips on narrow grounds but failed to address the underlying conflict between anti-discrimination laws and free speech rights.

Like Phillips, Lorie Smith is a creative professional who serves others through her business. She has created custom websites for people of all backgrounds, but she refuses to use her design skills and creativity to express messages inconsistent with her Christian convictions.

This case first arose when the state of Colorado categorized Smith’s work as a public accommodation. This subjected her business to review under Colorado’s Anti-Discrimination Act, which prohibits discrimination, including refusal of service, against any protected class, including sexual orientation or gender identity. This placed Smith’s desire to run her business according to her beliefs in direct conflict with Colorado law.

How did the ERLC engage this case?

The ERLC has written in favor of Lorie Smith, preparing Christians and Southern Baptist churches to respond to this important decision. The ERLC believes that all of our foundational First Amendment rights are interconnected; a weakening of one is a weakening of them all. The Supreme Court has once again affirmed a robust view of these foundational rights, and we applaud this ruling in favor of freedom of speech in the public square. We will continue to advocate for religious freedom, as well as God’s design for marriage and family, no matter what views are fashionable at the time.

ERLC President Brent Leatherwood Commends Supreme Court Ruling in 303 Creative Free Speech Case
By / Jun 30

Washington, D.C., June 30, 2023—Brent Leatherwood, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, affirmed today’s U.S. Supreme Court ruling on the 303 Creative v. Elenis case, stating that “individual rights may not be paved over by a zealous government.”

In response to the court’s ruling in the 303 Creative free speech case, Leatherwood said: 

“If the government can compel an individual to speak a certain way or create certain things, that’s not freedom—it’s subjugation. And that is precisely what the state of  Colorado wanted.

Thankfully, the court has stepped in to say that individual rights may not be paved over by a zealous government. Colorado’s scheme of compulsion and coercion against creators has failed once more.

But the implications of this ruling extend throughout the nation: People are free to speak, create, and operate in ways that are consistent with their deepest-held beliefs—even when those beliefs are deemed culturally unpopular.”

What did the court decide in the 303 Creative free speech case?

The Supreme Court has delivered a landmark ruling in favor of free speech. Quoting previous cases, the court highlighted that the framers designed the First Amendment to protect the freedom to think and speak according to one’s deeply held convictions. The government cannot suppress speech simply because it deems it “misinformed or offensive.” The court emphasized that technological advancements, such as the internet, do not diminish the protections afforded by the First Amendment. 

As Justice Gorsuch noted in the opinion, “No public accommodations law is immune from the demands of the Constitution” (14). The First Amendment was designed to establish the United States as “a rich and complex place where all persons are free to think and speak as they wish, not as the government demands” (26). Justice Gorsuch clarified, “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive, misguided, or even hurtful,’ but tolerance, not coercion, is our Nation’s answer” (25-26).

What was the 303 Creative free speech case about?

Since 2016, Lorie Smith, founder of the web design firm 303 Creative, has been in the process of challenging a Colorado law that violates her First Amendment rights. 

This same law was used to target Jack Phillips and led to the 2018 Supreme Court Masterpiece Cakeshop v. Colorado Civil Rights Commission case, Colorado’s Anti-Discrimination Act. In that case, the court ruled favorably for Phillips on narrow grounds but failed to address the underlying conflict between anti-discrimination laws and free speech rights.

Smith has created various custom websites for people of all backgrounds, but she refuses to use her “design skills and creativity to express messages that violate her deeply held religious convictions,” including the creation of a wedding website for a same-sex couple. 

Why does this case matter to Southern Baptists?

“Southern Baptists have long subscribed to the belief that people of faith should not only be able to hold biblical convictions about marriage and gender, but also to live them out in the public square,” said Hannah Daniel, ERLC policy manager. “No one should be forced to sacrifice their most deeply held beliefs to participate in the marketplace and contribute to our society.” 

More information about this case and ERLC advocacy is available online at the SCOTUS Resource Page.

The Southern Baptist Convention is America’s largest Protestant denomination with more than 13.6 million members and a network of over 47,000 cooperating churches and congregations. The Ethics & Religious Liberty Commission is the SBC’s ethics, religious liberty and public policy agency with offices in Nashville, Tenn., and Washington, D.C.

To request an interview with Brent Leatherwood,
contact Elizabeth Bristow by email at [email protected] or call 202-547-0209
Visit our website at www.erlc.com
Follow us on Twitter at @ERLC.

How the ERLC represents Southern Baptist churches
By / Jun 9

The Ethics & Religious Liberty Commission (ERLC) exists to assist churches by helping them understand the moral demands of the gospel, apply Christian principles to moral and social problems and questions of public policy, and to promote religious liberty in cooperation with churches and other Southern Baptist entities. As part of that role, we are committed to representing Southern Baptists on issues that hold immense importance for our churches and the gospel. 

One of the ways we fulfill this mission is by actively engaging in the judicial process, particularly at the United States Supreme Court. In this article, we want to update you on the current cases before the Supreme Court, why they matter for Southern Baptists, and how the ERLC is involved.

(For more in-depth analysis, please visit our website at ERLC.com/SCOTUS.)

The Religious Postal Work Case | Groff v. Dejoy

One of the cases we are closely monitoring is Groff v. Dejoy, which revolves around Gerald Groff, a USPS carrier and devout Christian who was denied religious accommodations to observe the Sunday Sabbath. This case has the potential to challenge or limit the 1977 Supreme Court decision in Trans World Airlines v. Hardison, which restricted employers’ obligations to accommodate religious beliefs.

To support Groff and advocate for enhanced religious liberty protections in the workplace, the ERLC has come alongside other religious organizations in filing an amicus brief.

The 303 Creative Free Speech Case | 303 Creative v. Elenis

Another critical case we are following is 303 Creative v. Elenis. It involves Lorie Smith, a creative professional who refused to create a wedding website for a same-sex couple due to her religious convictions. This case raises significant questions about the boundaries of free speech and when the government can compel individuals to express themselves, even if it contradicts their beliefs.

We are actively urging the court to rule in favor of Smith, as it has implications for free speech and the ability of people of faith to live out their convictions in the public square.

The Abortion Pill Case | Alliance for Hippocratic Medicine v. FDA (5th Circuit Decision)

Alliance for Hippocratic Medicine v. FDA is a case brought by pro-life medical groups challenging the FDA’s approval of the chemical abortion drug, mifepristone, and the removal of safety precautions surrounding its usage.

The ERLC has been closely monitoring this case and has advocated for the protection of preborn lives and the well-being of women affected by this harmful drug. We will continue to urge the court to prioritize these critical concerns and will actively seek further engagement if the case is appealed to the Supreme Court.

Stay informed

The ERLC is deeply committed to equipping Southern Baptists with the necessary knowledge to understand court rulings and navigate these vital issues effectively. Recognizing the significance of staying informed and engaging thoughtfully in the public square, we have established a dedicated landing page, ERLC.com/SCOTUS, to equip our churches and fellow Baptists. This platform serves as a comprehensive resource for all the cases we are monitoring, focusing on religious liberty, free speech, and the sanctity of life. Our goal is to empower Southern Baptists to comprehend and respond to these crucial matters.

In our role representing Southern Baptist churches and advocating for our deeply held convictions, the ERLC plays a vital role in addressing key legal cases before the Supreme Court. Through our engagement in cases like Groff v. Dejoy, 303 Creative v. Elenis, and Alliance for Hippocratic Medicine v. FDA, we seek to protect religious accommodations, defend free speech, and uphold the sanctity of life.

As Southern Baptists stand alongside us, we have the opportunity to bring light to a chaotic public square with the transformative message of Jesus Christ. Together, we can make a significant impact on crucial societal issues and ensure that our voices are heard and respected.

Explainer: Supreme Court hears oral arguments in 303 Creative case
By / Dec 5

On Dec. 5, 2022, the U.S. Supreme Court heard oral arguments in 303 Creative v. Elenis, an important case for free speech and religious liberty. Since 2016, Lorie Smith, founder of the web design firm 303 Creative, has been in the process of challenging a Colorado law that violates her First Amendment rights. It is the same law that was used to target Jack Phillips and which led to the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case. In that case, the court ruled favorably for Jack Phillips on narrow grounds but failed to address the underlying conflict between anti-discrimination laws and free speech rights.

A decision in this landmark case involving 303 Creative is expected in May or June of 2023.

What is this case about?

Like Phillips, and like Barronelle Stutzman of the Arlene’s Flowers Inc. v. Washington case, Lorie Smith is a creative professional who serves anyone through her business. She has created all kinds of custom websites for all types of people, but she refuses to use her “design skills and creativity to express messages that violate her deeply held religious convictions.” 

The state of Colorado views Smith’s work as a public accommodation, and thus, it is subject to Colorado’s Anti-Discrimination Act, which prohibits discrimination, including refusal of service, against any protected class, including sexual orientation or gender identity. This puts Smith’s desire to run her business according to her beliefs in direct conflict with Colorado’s law. 

Though the results of this case certainly impact religious liberty, the primary issue of this case is one of free speech. The central question before the court is “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

What arguments were made?

Kristen Waggoner, CEO, president, and general counsel of Alliance Defending Freedom, argued on Smith and 303 Creative’s behalf. Her central argument was that the enforcement of Colorado’s Anti-Distcrimination Act against Smith violates her first amendment free speech rights by forcing her to create speech inconsistent with her religious beliefs. The argument went to great lengths to demonstrate that Smith’s decisions in what projects she will take on are not based on who is requesting her services but rather what message the work will convey.

As Supreme Court analyst Amy Howe explains, “This means . . . that she would ‘happily’ design graphics for an LGBTQ customer who runs an animal shelter. But she will not take on commissions that would be inconsistent with her Christian beliefs—including, she says, by promoting same-sex marriage—because a custom wedding website would ‘express approval of the couple’s marriage.’”

Furthering this idea that the message rather than the individual is central to the decision, in the argument, Waggoner concluded that Smith would not create a website for a hypothetical heterosexual couple who wanted to share their love story and include details of their relationship beginning with an affair and progressing after divorces because she believes that divorce and extramarital sex are wrong.

Both the Colorado solicitor general and the U.S. deputy attorney general argued that the Colorado law “merely regulates sales, rather than the products or services being sold, and therefore does not require or bar any speech.” The state argued that Smith is not being forced to create anything, but that whatever she decides to create must be available to be purchased by anyone. The arguments also focused on how a potential ruling could impact similarly suited circumstances where the individual does not want to serve those entering into an interracial marriage or a marriage between people with disabilities. 

Why does this case matter?

This case has significant implications for the free speech of all people. If the court were to rule against Smith, it would establish a precedent that cuts to the core of our nation’s fabric. The First Amendment protects free speech—even when that speech is unpopular. 

Beyond that, for us, as Christians, our beliefs on matters of marriage and gender are core to our convictions, pointing to God’s design and the living picture of Christ and his Church. Throughout the argument, it was apparent that the justices were operating from vastly different worldviews and perspectives, with several justices seemingly unaware of the centrality of this belief to the Christian faith.

As ERLC President Brent Leatherwood said today:

Christians have, for 2,000 years, said that marriage is a picture of the gospel. It was clear from today’s oral arguments that several justices have never encountered this notion on a prior occasion. This is unfortunate as it is central to understanding why a Christian creative professional would object to being compelled by the state to say something contrary to this deeply held belief. That is why Justice Gorsuch was exactly right when he seemed to suggest this case is not about who is being served, ‘but about what’ the state of Colorado is forcing upon the speech creator. Today’s proceedings reveal why the Court should rule in favor of 303 Creative because to do otherwise would be tantamount to giving the government keys to a paver to roll right over private business-owning Christians who disagree with whatever the prevailing cultural notions about marriage and family happen to be fashionable at a given moment.

It is essential that people of faith not only have the ability to believe these fundamental truths but also to live them out in the public square. No one should be forced to sacrifice their most deeply held beliefs to participate in the marketplace and contribute to our society. The ERLC is urging the court to rule in favor of 303 Creative and will be preparing Christians and churches to respond to this important decision next year.

Explainer: What you should know about Finland, Päivi Räsänen, and hate speech
By / Apr 1

On March 30, a Finnish court issued a unanimous ruling dismissing ‘hate speech’ charges against Finnish MP Päivi Räsänen and Bishop Juhana Pohjola. According to Alliance Defending Freedom, who represented Räsänen in this case, the court ruled “it is not for the district court to interpret biblical concepts.” This case garnered international attention, especially from human rights advocates, due to the tenuous nature of expressing biblical views of sexuality in the public square and the nature of free speech in Europe. This ruling comes on the heels of larger ethical debates over overly broad and conflicting definitions of hate speech, the digital public square, and the freedom to express one’s religious views of human sexuality amidst growing social pressure.

Who is Päivi Räsänen?

Räsänen is a medical doctor, former Minister of the Interior (2011–2015), and current Member of Finnish Parliament (since 1995). She is married to a Lutheran pastor, Niilo, and together they have five children. She is an active member of the Finnish Lutheran Church and also chaired the Christian Democrats in Finland from 2004 to 2015. The party’s basic principles focus on their desire to see democracy built upon Christian values, including the dignity of all people and the rights that flow from that inherent dignity rooted in God’s creation of man and women as his image bearers. They explain, “Human dignity is based on a person’s being, not on their doing or abilities. It is priceless, regardless of gender, age, position, religion, origin of birth or other criteria.” From June 2011 to May 2015, she also held the office of the Minister of the Interior of Finland.

Räsänen has drawn significant controversy and the ire of many over her time as a member of the Finnish Parliament. On Oct. 29, 2010, Räsänen said that she would favor Christians over Muslims when selecting asylum seekers to Finland due, in her opinion, to Muslims’ “difficulties to adjust to the Finnish culture,” though she later clarified that she did not believe religion should be a top factor in immigration decisions. She is also a staunch pro-life advocate who has argued against the practice of abortion, contrasting abortion law to animal protection law saying that the latter gives better protection for animals than the former does to human fetuses.

What was this case about?

Charges of hate speech were brought against Räsänen in June 2021 following two years of investigations into her speech regarding several matters including the 2004 pamphlet, “As Man and Woman He Created Them: Homosexuality and the Challenge to the Christian Concept of Man”; comments during a 2-minute segment of a 2019 radio interview; and a tweet directed at the leadership of her church questioning their sponsorship of an LGBTQ+ pride event in 2009 and linking to an Instagram post with a picture of Romans 1:24-27.

Bishop Juhana Pohjola, who serves as the Dean of Evangelical Lutheran Mission Diocese of Finland, also faced charges for publishing Räsänen’s pamphlet for his congregation over 17 years ago. The pamphlet was published and distributed before the enactment of Finland’s hate speech law, which claims to stand for freedom of expression but bans speech declared to be “threatening or defaming people or population groups.” Hate speech under this law is punishable by fine or imprisonment. Räsänen was faced with up to two years of imprisonment due to the multiple criminal charges brought against her by Finland’s Prosecutor General. It should be noted that Räsänen’s tweet and radio interview have been freely available throughout this trial since they did not break Twitter or the radio broadcaster’s policies on hate speech. 

In June 2021, a letter signed by 48 ecclesiastical leaders representing 45 Lutheran church bodies and associations across the globe condemned the ongoing criminal prosecution of MP Räsänen and Bishop Pohjola. On Jan. 24, 2022, five U.S. Senators also sent a letter to United States Ambassador-at-Large for International Religious Freedom Rashad Hussain highlighting this case and encouraging the ambassador to raise concerns to the Finnish government about religious freedom and free speech and to condemn these charges.

On March 30, the Helsinki District Court acquitted and dismissed charges against both Räsänen and Pohjola. The court ruled that even if the statements were controversial, ​​”there must be an overriding social reason for interfering with and restricting freedom of expression.” After the ruling, Räsänen said, “I am so grateful the court recognized the threat to free speech and ruled in our favour. I feel a weight has been lifted off my shoulders after being acquitted. Although I am grateful for having had this chance to stand up for freedom of speech, I hope that this ruling will help prevent others from having to go through the same ordeal.”

What is hate speech?

Hate speech is notoriously difficult to define, especially on the international stage. It is often left undefined in legal terms because of the deep tension that exists between hate speech and free expression. The U.N.’s own plan of action on hate speech from May 2019 makes this clear by saying, “There is no international legal definition of hate speech, and the characterization of what is ‘hateful’ is controversial and disputed.” While the U.N. leaves hate speech undefined, it clearly desires robust protections against hate speech and calls it “a menace to democratic values, social stability and peace” that “must confront[ed] . . . at every turn.”

Similarly, in the United States, there is no legal definition of hate speech in U.S. law as the Supreme Court has routinely affirmed that hate speech is protected by the First Amendment. The Foundation for Individual Rights in Education (FIRE) states, “‘hate speech’ is protected by the First Amendment and cannot lawfully be censored, punished, or unduly burdened by the government — including public colleges and universities.” Expanding on notions of hate speech, the American Library Association explains that “under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group” (emphasis mine).

Why does this matter to Christians?

While freedom of speech and religious freedom is central to the American experiment and should be championed around the world, this case is a good reminder that these freedoms are not rooted in the constitutional order or even in international law. These rights flow from the inherent dignity that all people, across all time and cultures, have as created in the imago Dei. It is important to remember that we do not have a right to be protected from controversial ideas in the public square, nor do we have the right to dictate to others what they must believe or practice in a free society. 

Building off of the legal boundaries of free speech and the limited scope of what constitutes hate speech, societies around the world need to cultivate and recover a robust, healthy dialogue surrounding these contentious issues. The best way to do that is to champion free expression and religious freedom for all, not just those with whom we agree or like. Free expression does not mean that we all must agree on these particular issues, but it does mean that everyone is able to speak their opinion freely and without fear of being cut off by those in power — whether in government or by technology companies who increasingly have authority over the digital public square.

Regardless of what one believes about Räsänen’s speech or beliefs surrounding human sexuality and gender issues, we should all be able to agree that these broadly defined hate speech policies are dangerous to free expression and our public discourse around the world. These issues will not simply pass away because God’s design for human sexuality is central to the life of the church and society. Our societies need more, not less, dialogue and engagement on these contentious issues. 

4 ethical issues in technology to watch for in 2022
By / Jan 4

For the past few years, I have had the opportunity to highlight some of the top ethical issues in technology to be aware of as we begin a new year. In 2021, I wrote about the concerning trends of content moderation — especially in regards to free speech and religious freedom in the digital public square — as well as the growing concerns over facial recognition technologies and the ongoing debate over personal privacy. While many of these same issues will likely carry over into 2022, some have given way to larger concerns about pervasive surveillance, in addition to the threat of digital authoritarianism around the world.

For all of the good uses of technology, it has profound and consequential effects on us as humans. It shapes us in particular ways, including how we see and engage with those around us. While many today are reframing what it means to be human, Christians know that every person is created in God’s image and has inherent dignity. Furthermore, we know that our identity is rooted in God our Creator and that we are to love him and love our neighbor as ourselves (Matt. 22:37-39). This question of human identity is a central to many of the top ethical issues of the day, especially in our technologically rich society.

If 2021 taught us anything, it is that we need to take these particular ethical issues seriously. The church needs to understand that technology is becoming one of the primary disciplers of our people, forming us in ways that we may never fully understand. In light of these realities, here are four of the top issues to keep an eye on in 2022.

Content moderation and free speech

Of all of the issues our society faces today in terms of technology, there is widespread agreement across partisan lines that content moderation is one of the most consequential debates today, even if that agreement only consists of an acknowledgement that the current state of things is not sustainable in the long term. Some argue that technology companies need to moderate more content — especially around fake news, misinformation, and hate speech — while others argue that these companies are simply suppressing certain types of speech that they disagree with on ideological grounds and acting as unaccountable “moderators” in the open marketplace of ideas.

In 2022, these issues will only become more controversial and divisive as major political parties in the United States and in countries around the world debate and possibly legislate how and by what standard these companies should moderate or suppress certain types of content online. One of the key elements in this debate will be where to draw the line over free speech and the nature of religious freedom in the public square.

Misinformation/fake news

This past year, I have heard from countless pastors and ministry leaders about how to navigate the rise of fake news, misinformation, and conspiracy theories in their local churches. Some Christian leaders argue that misinformation is not a problem plaguing the local church, but this is often because many of us have become so accustomed to it. And almost no one truly believes they are spreading a conspiracy theory or fake news given that they believe it to be true. 

One of the most subtle and deleterious effects of technology today is how our society perceives truth and how the information overload we face each day is causing all of us to lose a grip on reality. This isn’t an isolated occurrence but has become a cultural practice across political, social, and even religious grounds. While this debate is endlessly complex, one of the most countercultural things we can do in the midst of information overload is to simply say, “I don’t know.” Conversations about these problems will only grow in the coming year as our society awakens to the fact that misinformation and fake news have real-world consequences.

Digital surveillance and data privacy

Amidst many of the digital issues of the day, there is one issue that seems to be right outside of the limelight but will likely be a central ethical concern in 2022. With the ubiquity of technology and our dependence on it, there is the vast and growing concern over personal privacy and the use of data. Governments around the world are beginning to or have already regulated the flow of data and who has access to it, often focusing on a right to privacy. In the U.S., there has been a continued push for a federal digital privacy law similar to that found in the European Union with the GDPR and states like California with the CCPA. In 2021, much of the movement in this space centered around what it could look like for the U.S. to have a “digital bill of rights” as we move further into this digital first world.

For Christians, a right to privacy is not derived from the moral autonomy of the individual, as in many non-Christian ethical theories, but from the dignity of all people. One of the functions of privacy in this world is a way to care for the vulnerable among us and uphold their dignity as image-bearers in a technologically-rich society. As we see each day, however, is that data and information can and will be used, abused, and manipulated toward selfish ends because of the prevailing nature of sin in the world. 

Unfortunately, technology will be used to control and strip others of their dignity. One of the main ways this will be done in our digital society is through the misuse of data and information. Thus, there is a great need for a right to privacy grounded in a transcendent reality of human dignity, rather than the pursuit of autonomy and individual freedom. In 2022, we may see some more movement from local, state, and federal governments to address these important issues of data collection, personal privacy, and the use of this information by private and public actors alike.

Digital authoritarianism

In 2021, we saw the explosive growth of technology control entire people groups and even nations. While much of the focus in the West was on how technologies are shaping how we see the world around us, throughout the world these tools are still being used to prop up strong men and authoritarian regimes — bent on controlling the flow of information and subjecting people to massive propaganda in order to retain power and positions over those who are vulnerable. One of the clearest examples of digital authoritarianism is seen the continued genocide of the Uyghur people in China under the repressive Chinese Communist Party (CCP).

As I recently wrote, the CCP uses countless forms of technology to suppress basic human rights, surveil its citizens, and subjugate our fellow image-bearers to some of the worst forms of both physical and mental abuse. Technology is one of the most powerful tools the CCP has in its arsenal to control and manipulate others. But this heavy hand of authoritarianism isn’t limited to the CCP. Nations around the world have shown that they will use any means necessary to limit access to information, suppress free expression, and cut people off from the outside world altogether. In recent years, we have seen this take place in Iran, Russia, Belarus, and most recently Cuba. 

As we move into 2022, it is clear that digital authoritarianism is becoming commonplace around the world and will only continue to rise as technologies become more accurate and accessible to those bent on suppressing human rights and religious freedom in order to maintain position or power over others.

As Christians engage the most pressing issues of our day, we must do so with a rich vision of human dignity and a public theology that is rooted in the truthfulness of Scripture. While ethical issues with technology may seem unimportant or pale in comparison to others at times, we must remember that these concerns are central to many of the ongoing debates we have been having for many years. Looking out onto the ethical and policy landscape of 2022, there is much to be hopeful about, but there are also many pressing issues that need to be addressed by thoughtful and rich engagement from the church — as she proclaims the goodness of God’s design and the truth of the gospel to a world desperately in need of both truth and grace.

What online pornography debates teach us about morality and governance
By / Sep 21

In last few weeks, there have been a number of developments concerning the availability of pornography on social media. OnlyFans, a social media service that caters to those in the sex industry and profits off the promotion of pornographic material, initially announced that it would bar sexually explicit videos beginning in October. This caused a massive conversation about the morality of pornography in the digital public square. Bloomberg reported that the service has attracted over 130 million users and experienced rapid growth during the COVID-19 pandemic, similar to the boom that Pornhub saw during the initial lockdowns in 2020. News of this move was received by many as a blow to the pornography industry — including to those who earn a living off on the platform selling access to their pornographic material.

OnlyFans originally stated that this decision was due to a strategic shift in focus to a broader platform for various artists and creators, as well as pressures from investors and payment processors who saw financing or facilitating pornography as a potential liability and deleterious to their own public image. However, OnlyFans cancelled their plans to ban sexually explicit content just a week later because of the massive public outcry, especially on social media. The company announced on Twitter that it “stands for inclusion and we will continue to provide a home for all creators.” 

This entire episode brought to light an ongoing debate in digital governance and public policy over the ubiquity of pornography online and how society should go about navigating questions of vice, free speech, and public morality.

Recognizing the moral component

Reflecting on the OnlyFans decision to reverse their proposed ban on sexually explicit material, Felix Salmon at Axios writes that many technology companies are beginning to act like a fourth branch of government given their immense power and control over our public discourse. He argues that many of these content policies end up going much further than the law actually requires in terms of the availability and distribution of pornography online. The argument goes that if the government doesn’t ban it, neither should these companies.

He highlights how these bans on explicit content, such as porn, are often driven by moralistic underpinnings based on the fact that pornography is legal, yet is “shunned by most of the business establishment.” He goes on to contend that these decisions — often based on the fact that payment processors and banks tend to shy away from financing pornography websites, especially due to the illegality of some material and the rise of sex trafficking — are contributing to a lack of U.S. alternatives to the current mainstream pornography sites, which are often based in other countries including the London-based OnlyFans. 

He also mentions some of the controversial moves by eBay and Tumblr. Each company implemented strict policies against pornography. These policies seem to fly in the face of the celebrated progress of the sexual revolution toward the mainstreaming of expressive individualism, LGBTQ+ rights, and the ridding of what are seen as outdated views of marriage and sexuality from our public conscience.

The inescapability of legislating morality

While there is much more to be said about these types of decisions, including the wisdom of banning pornography and objectionable content online, there is irony in how those in our secular age think about issues of governing and morality. Some will celebrate the technology industry making moral judgments in certain arenas, including the celebration of LGBTQ inclusion or the ever-expanding definition of hate speech that tends to describe historic Christian teaching on sexuality as unacceptable for public debate. Yet, these same groups will chastise the industry for making other policies on moral grounds, including decisions to limit or ban pornography on social media platforms. Concerning the latter, they argue that these technology companies — and the business industry itself — need to shed these outdated and moralistic attitudes since we shouldn’t be legislating or designing content policies on moral grounds. 

It is increasingly common in our society to think that we shouldn’t legislate morality, but this misses out on the fact that all laws and even digital governance policies are making inherently moral statements about what is to be promoted or celebrated in our society. They each put forth a version of the good life, which is a central facet of ethics and morality. While pornography is currently legal in the eyes of the state and an extremely lucrative business, companies that disallow pornography may be acknowledging, without even knowing it, how dehumanizing this industry is for all involved and how it tears down society. Either by giving into the public pressures to keep this material off their platforms or recognizing the ways in which being associated with this material will reflect on their brands, decisions to preclude this material from their platforms are ultimately serving a higher good in our society. 

In the digital age where technology companies hold such immense power over our public discourse, each of their content moderation policies are casting a vision for the good for our society, and it is incumbent on all of us to be involved in these debates. These companies have every right to ban or suppress pornography on their platforms, which, should be noted, is not an easy decision in light of the financial incentives and public pressure. But our society is better off because decisions like these protect the vulnerable and innocent among us and uphold public virtue and the centrality of the family.

The OnlyFans situation and continued debate over moralistic attitudes in our public discourse is yet another reminder of the moral incongruence of expressive individualism and how much of our modern public ethic based in the pursuit of vice is simply untenable. When you build public morality off of carnal desire rather than transcendent principles, you will be left with a system that is not only unable to stand under its own weight but also one that will not produce the type of virtue desired for society. While there may be legitimate debate within the Christian community over the wisdom of government bans, private companies choosing to exclude pornographic content from their platforms is a clear win for public morality and the common good.

Learn more about ERLC’s work in the digital public square and sign up to receive articles like this at ERLC.com/digital

Where do we draw the line on hate speech?
By / Aug 9

In 2009, I was encouraged by some friends at work to join a new social media platform called Twitter. I remember watching a short promo video and hearing about how this site allowed people all across the world to connect and speak freely about whatever came to mind — whether about our favorite sport teams or the most important social issues of the day. But as the platform grew in users and influence in the public square, real challenges emerged about how to navigate violence, misinformation, and even hate speech online. And as a long history of U.S. jurisprudence illustrates, hate speech has been notoriously difficult to define, often due to inadequate parameters and the robust protections for free expression and religious freedom from heavy-handed government overreach.

While these problems are not limited to Twitter specifically, the type of users the platform attracts and its enormous influence in public discourse have made it ground zero for many of the debates over free expression and content moderation. Just this past weekend, two prominent conservative pundits, Allie Beth Stuckey and Erick Erickson, were both temporarily suspended by Twitter for violating the platform’s rules on hateful conduct, specifically concerning gender and gender identity issues. Both users had access to their accounts limited for 12 hours, being unable to post new messages, like posts, or retweet other accounts. 

A recent Twitter controversy

Stuckey and Erickson both tweeted about the first openly transgender athlete in history to compete in the Olympic games. Laurel Hubbard, who was born as a man, recently represented New Zealand in the women’s weightlifting competition in Tokyo. Both Stuckey and Erickson were suspended for tweeting that Hubbard was still a man and that even though Hubbard fell short in the competition, it was not fair for the athlete, who is a biological male, to compete against women during the games.

Neither of the tweets advocated for physical violence, attacked, or threatened Hubbard in any way. Yet, both users were suspended for violating a hateful conduct policy that defines hate speech in the broadest of terms. Twitter defines hateful conduct in their content moderation policies 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. We also do not allow accounts whose primary purpose is inciting harm towards others on the basis of these categories.”

The company goes on to say, “We are committed to combating abuse motivated by hatred, prejudice or intolerance, particularly abuse that seeks to silence the voices of those who have been historically marginalized. For this reason, we prohibit behavior that targets individuals with abuse based on protected categories.” But if you dig deeper into their policies, it becomes clear that the company has an incredibly broad understanding of what constitutes hateful conduct, which can easily extend to any type of speech that one simply does not like or makes a user feel uncomfortable.

Defining hate speech

While many technology companies refer to international norms on defining controversial topics — including the nature of human rights — it should be noted that hate speech is often left undefined in legal terms because of the deep tension that exists between hate speech and free expression. The U.N.’s own plan of action on hate speech from May 2019 makes this clear by saying, “There is no international legal definition of hate speech, and the characterization of what is ‘hateful’ is controversial and disputed.” While the UN leaves hate speech undefined, it clearly desires robust protections against hate speech and calls it “a menace to democratic values, social stability and peace” that “must confront[ed] . . . at every turn.

Similarly in the United States, there is no legal definition of hate speech in U.S. law as the Supreme Court has routinely affirmed that hate speech is protected by the First Amendment. A recent example is the case of Snyder vs Phelps concerning hate speech and Westboro Baptist Church. According to the American Library Association, “under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group” (emphasis mine). 

Defining hate speech is a perennially difficult issue throughout society, especially with the rise of online speech through social media platforms. There are constant ongoing debates in society and the academy over what actually constitutes hate speech and if the label should simply be limited to speech that incites or instigates physical violence or harm. In the case on Twitter, the company has drawn a clear line by defining hate speech broadly, a definition which necessarily infringes on free expression and religious freedom concerning some of the most contentious issues of our day — namely human sexuality and marriage. 

Most people would tend to agree that the initial categories laid out by Twitter such as threats of physical violence, “wishing, hoping or calling for serious harm on a person or group of people,” and “references to mass murder, violent events, or specific means of violence where protected groups have been the primary targets or victims,” fall under good faith content moderation and should be championed by all. Christians, in particular, should affirm many of these guidelines because of our belief in the innate value and dignity of all people as created in God’s image and the freedom of conscience that flows from our understanding of the imago Dei (Gen. 1:26-28). But when hate speech is broadened to include speech that makes one feel uncomfortable or that one simply does not like, we have set a dangerous precedent for public discourse.

Free expression and public discourse

Twitter claims in their content moderation policies: “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.

As I wrote earlier this year in response to a similar situation over transgender ideology and free expression, civil and nonviolent disagreements over the biological differences between a man and woman simply do not and cannot — especially for the sake of robust public discourse — be equated with hate speech or hateful conduct. 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 violates the immense responsibility they have over providing avenues for public discourse and free expression.

In a time where there is already a considerable amount of distrust in institutions, governments, and even technology companies themselves, ill-defined and broad policies that seem to equate historic and orthodox beliefs on marriage and sexuality with the dehumanizing nature of real hate speech and violence only widens the deficit of trust and increases skepticism over the true intention behind these policies.

Building off of the legal boundaries of defining hate speech, our society must be able to have healthy dialogue about these contentious issues. The best way to do that is to champion free expression and religious freedom for all, not just those with whom we agree or even like. Free expression does not mean that we all must agree on these particular issues, but it does mean that everyone is able to speak their opinion freely and without fear of being cut off by those who oversee these platforms.

Whatever you may think of Stuckey or Erickson’s beliefs, we should all be able to agree that these broadly defined hateful conduct policies are dangerous to free expression and our public discourse. We need more, not less dialogue and engagement on these contentious issues. These issues will not simply pass away because God’s design for human sexuality is central to the church and society. These content moderation policies must be amended to actually stand for the free expression for all people, not just those with whom a company or even our society may agree.

SCOTUS rules for free speech, Delta variant, and a new family on Sesame Street
By / Jun 25

In this episode, Josh, Lindsay, and Brent discuss the shocking collapse of a surf-side condo in Miami, the SCOTUS ruling on free speech, the coronavirus variant likely to cause the next wave, the drop in U.S. life expectancy, and the new family members introduced on Sesame Street. Lindsay gives a rundown of this week’s ERLC content including Jordan Wootten with “What’s the future of the global religious landscape? Three takeaways from the Pew Center projections,” Wendy Alsup with “4 ways to equip your kids to walk with friends who experience gender dysphoria,” and Josh Wester with “6 reflections from SBC21: Resolution, a new president, and a spirit of unity.”

ERLC Content

Culture

  1. Surfside Condo Collapse: At least 1 dead, 99 unaccounted for; 55 units involved In catastrophe
  2. SCOTUS rules for cheerleader in free speech case
  3. Teen cheerleader’s Snapchat brings Supreme Court clash over schools and free speech
  4. Delta variant likely to cause next wave
  5. US Life Expectancy Drops by Alarming Amount
  6. Sesame Street introduces family with two gay dads during Pride Month

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