Monthly Archives: June 2020

Section 230, the law that is often credited as the reason why the internet as we know it exists, could be facing its greatest threat yet. A seemingly coordinated attack on the law is unfolding this week from the Trump administration and Republicans in Congress. It follows complaints that platforms such as Facebook, Twitter, and YouTube unfairly censor conservative speech. Though some are framing the efforts as a way to promote free speech, others say the result will be exactly the opposite.

Following President Trumps executive order aimed at social media companies he thinks are censoring right-wing voices, the most direct actions taken against Section 230 arrived this week in the form of a new bill from Sen. Josh Hawley and a set of recommendations from Attorney General Bill Barr.

Hawley, a 40-year-old Republican from Missouri who has made no secret of his intentions regarding Section 230, is proposing a bill that would require large platforms to enforce their rules equally to stop a perceived targeting of conservatives and conservative commentary. Hawley is also rumored to be preparing another Section 230-related bill to add to his growing collection.

Meanwhile, Barrs Department of Justice said it is calling for new legislation that, in certain cases, would remove the civil liability protections offered by Section 230. If platforms like Facebook, Google, and Twitter somehow encouraged content that violates federal law, these platforms would be treated as bad samaritans and would lose the immunity offered by Section 230. Like Hawleys bill, the DOJs proposed rules would also force platforms to clearly define and equally enforce content rules.

Civil rights advocates say theyre concerned that some of these proposed measures may end up becoming law, leading to all sorts of unintended consequences and stifling speech which will ultimately punish internet users far more than the websites.

I do think there is a very serious risk to Section 230 right now, Kathleen Ruane, senior legislative counsel at the American Civil Liberties Union (ACLU), told Recode. And they all concern me, not for the platforms, but for users and online free expression.

Section 230 is part of the Communications Decency Act of 1996. It says internet platforms that host third-party content are not civilly liable for that content. There are a few exceptions, such as intellectual property or content related to sex trafficking, but otherwise the law allows platforms to be as hands-off as they want to be with user-generated content.

Heres an example: If a Twitter user were to tweet something defamatory, the user could be sued for libel, but Twitter itself could not. This law has allowed websites and services that rely on user-generated content to exist and grow. If these sites could be held responsible for the actions of their users, they would either have to strictly moderate everything those users produce which is impossible at scale or not host any third-party content at all. Either way, the demise of Section 230 could be the end of sites like Facebook, Twitter, Reddit, YouTube, Yelp, forums, message boards, and basically any platform thats based on user-generated content.

The law also gives those services that immunity even if they moderate certain content. This is why, for instance, Twitter can take down tweets that it deems in violation of its terms of service. Sen. Ron Wyden, who was one of the architects of Section 230, has likened these provisions to a sword and shield for platforms.

But as some of these platforms have increased in size, scope, and power, there has been increasing support on both sides of the aisle to chip away at the law that allowed them to flourish free of much accountability.

Democrats have supported laws that crack down on websites that facilitate sexual abuse. The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) made platforms legally responsible for third-party content related to sex trafficking. The two bills, known together as FOSTA-SESTA, overwhelmingly passed in the House and Senate, and President Trump signed them into law in 2018.

More recently, theres the bipartisan Eliminating Abusive and Rampant Neglect of Internet Technologies Act (EARN IT), which would require companies to follow a yet-to-be-defined set of best practices or else lose Section 230 immunity if third parties post child pornography on their platforms. Civil rights advocates worry what those best practices will be and how they might stifle all speech.

Many Republicans see altering Section 230 as a way to force platforms to fit their definition of politically neutral. Typically, this translates into restricting a website or services ability to moderate content.

This seems to be the goal of Hawleys bill, which is called the Limiting Section 230 Immunity to Good Samaritans Act. Cosponsored by Republican Sens. Marco Rubio, Mike Braun, Tom Cotton, and Kelly Loeffler, the bill would force large tech companies that is, companies that have 30 million American users or 300 million users worldwide, as well as $1.5 billion annual revenue to act in good faith when enforcing their content rules. Acting in good faith here means that platforms must clearly define what their rules are and enforce them consistently, rather than, say, targeting certain types of political speech, as some conservatives believe they currently do.

Users who feel that their content is being unfairly removed would also have a new tool for reprisal. Hawleys bill gives individual users who believe theyre being censored the right to sue companies for at least $5,000 as well as attorneys fees. You can imagine how many people would be happy to take advantage of that, which would give platforms a big incentive to comply lest they be flooded with millions of lawsuits.

It is impossible to moderate user-generated content at scale perfectly, or even well, and this bill would weaponize mistakes, Aaron Mackey, staff attorney for the Electronic Frontier Foundation, told Recode. There are legitimate concerns about the dominance of a handful of online platforms and their power to limit internet users speech. But rather than addressing those concerns, this bill bluntly encourages frivolous litigation and will lead to massive trolling.

This isnt Republicans only recent attempt at limiting Section 230. In 2019, Hawley introduced the Ending Support for Internet Censorship Act, which would have required the Federal Trade Commission to declare platforms unbiased to get Section 230 protections. The same year, Rep. Louie Gohmert introduced the Biased Algorithm Deterrence Act, which would remove Section 230 protections from companies that moderated content using algorithms. Both were responses to conservative complaints that companies including Facebook, Twitter, and Google were selectively enforcing their content guidelines, de-platforming, shadow banning, or otherwise censoring conservatives while mostly leaving liberals alone. Sen. Ted Cruz has also been a vocal critic of platforms in this regard, erroneously asserting that Section 230 includes some kind of political neutrality requirement even though the law doesnt say anything to that effect.

Those complaints have gained steam recently. Despite being one of the biggest beneficiaries of the influence and reach these platforms can afford, President Trump had a recent tantrum over Twitters decision to fact-check two of his tweets, which contained inaccurate information about mail-in ballots. Soon after, Trump signed his executive order aimed at social media companies, which said platforms that go beyond good faith content moderation should not be entitled to Section 230 protections. An executive order is not a law and therefore its impact on an actual law is likely limited, but the rights intention to go after big tech companies was made very clear.

While recent bills in Congress have been markedly divisive, Barrs proposed reforms manage to incorporate the issues that both Democrats and Republicans have raised with Section 230. The DOJ called this a productive middle ground. Note that the departments proposals are simply suggestions for the laws Congress should enact that would actually change things, but they, like the executive order, signal how and why the Trump administration hopes to go after or control large platforms.

One of Barrs recommendations is to withhold immunity from truly bad actors, which are defined as sites promoting, soliciting, or facilitating content that violates federal law. Sites must also maintain the ability to assist government authorities to obtain content (i.e. evidence) in a comprehensible, readable, and usable format. This would be the end of services that use end-to-end encryption, which Barr has a particular problem with, and which civil liberties advocates believe will be the ultimate effect of the EARN IT act.

Theres also a section that addresses open discourse and greater transparency. Here, Barr recommends something along the lines of Hawleys bill that platforms must have clear terms of service for what is and isnt allowed on their platforms and moderate content accordingly. This includes defining good faith, similar to Hawleys bill, as well as removing the part of the law that says platforms can moderate content that is otherwise objectionable, as Barr believes the term is too vague and has given platforms the freedom to remove anything simply by saying its objectionable in some way.

Wyden was not impressed by the recommendations to change the law he helped create.

This jumbled mess of a proposal is yet another cynical attempt by the Trump administration to bully the tech companies into letting the president and his cronies post lies and conspiracies on their sites, and is clearly not intended to become law, the Oregon senator told Recode. Congress should stay far away from this disingenuous plan that would gut the ability of tech companies to take down hateful slime, spawn endless frivolous lawsuits, and chill Americans free speech online.

In the background of all of this is a growing public sentiment against powerful tech companies due, in part, to how they help spread fake news and the incredible amounts of personal information about us they collect. That has surely emboldened politicians to act accordingly. Not only do we have multiple bills against Section 230, but there are also ongoing efforts to break up the biggest tech companies through antitrust investigations both in the United States and the European Union.

The Department of Justice has concluded that the time is ripe to realign the scope of Section 230 with the realitiesof the modern internet, the recommendations say.

This all adds up to a very real possibility that Section 230, at least as we know it, wont be around for much longer. Hawleys bill, which has no bipartisan support as of now, might go the way his past bills did that is to say, nowhere. But the EARN IT Act does have bipartisan support and, like FOSTA-SESTA which did pass, targets child sexual abuse. Few politicians may want to vote against a law that says its meant to combat child porn, regardless of any unintended consequences.

The consequences of changing Section 230 will inevitably change the internet and what were allowed to do on it. Ruane, from the ACLU, points to the impact of FOSTA-SESTA, which she says has been a complete and total disaster, and its unintended consequences as a guide for what we can expect. Faced with the new law, online platforms didnt seek to target specific content that might relate to or facilitate sex trafficking; they simply took down everything sex or sex work-related to ensure they wouldnt get in trouble.

It was only supposed to apply to advertisements for sex trafficking. That is absolutely not what happened, Ruane said. All platforms adopted much broader content moderation policies that applied to a lot of LGBTQ-related speech, sex education-related speech, and ... sites where [sex workers] built communities where they shared information to maintain safety.

She added, It is astonishing to me that that law is being used as an example of what we should do in the future because of all the clear harms that censoring a broad amount of speech has caused.

As for Wyden, he wrote in a recent op-ed that laws that force platforms to be politically neutral may not encourage more speech, as conservatives who favor those laws claim, but rather suppress it. Facebook has taken a similar stance, saying on Wednesday that changing Section 230s liability protections would mean less speech of all kinds appearing online.

Section 230 wont change tomorrow, if it changes at all. But a series of seemingly coordinated attacks from two of the three branches of government certainly shows some momentum toward the possibility of change.

On one hand, the internet has profoundly changed since the law was introduced 25 years ago and its not unreasonable to believe that the law should change with it. On the other, those changes likely wont have the impact on the companies theyre targeting that lawmakers and the administration seem to desire. The impact will largely fall on the people who use the platforms those companies run: You.

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The Trump administration attacks Section 230 and free speech online - Vox.com

Facebook employees are apparently creating exceptions to CEO Mark Zuckerbergs vow to refrain from policing political speech: On Thursday, the social-media giant took down a Trump-campaign ad citing a preposterous rationale.

We removed these posts and ads for violating our policy against organized hate, a Facebook spokesman said: They showed a red, upside-down triangle similar to what Nazis used to classify political prisoners, so they violated the platforms ban on using a hate groups symbol to identify political prisoners without the context that condemns or discusses the symbol.

Huh? There are no political prisoners in question here. And Team Trump was clearly condemning the symbol which is indeed linked to antifa because the ad included the words: STOP ANTIFA.

In any event, most Americans probably have no idea that the triangle is linked to either the Nazis or antifa. Indeed, a campaign spokesman notes that Facebook itself has an inverted red triangle emoji in use.

But soon after various left-wing groups started pushing claims that the Trump ads used Nazi symbols, Facebook agreed.

There are only two possible explanations for the companys decision: 1) Its speech cops are confused and incapable of figuring out what speech to ban. 2) Theyre looking for any excuse to silence the president and his team or make them look bad. Both may have factored in Thursdays decision.

Surely Facebooks censors missed the irony of banning an ad that attacked antifa by showing its link to a Nazi symbol. And that the Nazis themselves and antifa today are both known for silencing speech and censoring others, as Facebook did.

Since last fall, Zuckerberg has vowed not to police political ads, given the importance of people having the power to express themselves. Free speech may be fraught, he suggested, but the long journey towards greater progress requires confronting ideas that challenge us.

We must continue to stand for free expression, said Zuck. To his credit, he has stuck to that principle despite significant protest from many Facebook employees.

Either the boss has changed his mind or his minions are determined to end-run him.

The rest is here:
Facebook breaks own free-speech policy over bogus 'symbol of hate' charge - New York Post

December 15, 1791, the First Amendment was adopted as one of the 10 amendments that constitute the Bill of Rights. It states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Our founding fathers created the First Amendment in response to two centuries of state-sponsored religious conflict and oppression in America, and with the keen understanding of the religious persecution in European nations resulting in official state religions and religious wars that were the norm.

Their understanding of the past is really all our founding fathers had to create a basic set of freedoms for each of us to have in our back pocket. Freedoms, we all use each and every day.

Although evolution and progress of a nation and its people is understood and expected, they could never have foreseen the internet. Or Social Media for that matter.

Since its inception in, social media has been at the core of Free Speech controversy. It has become common place for some users to berate, threaten, pick on, bully and/or share false information.

Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law and true threats.

The Communications Decency Act of 1996 provides immunity from liability for providers and users of an interactive computer service that publishes information provided by third party users. Basically, social media platforms such as Facebook, Twitter and Instagram have absolutely zero responsibility for what citizens share across them and how they may hurt another human being.

Fast forward to May 28, 2020. President Trump signed an executive order aimed at social media companies after Twitter called two of his tweets potentially misleading. The executive order puts to test the level of authority the White House has when it comes to Free Speech.

This also brings up the question, How much free speech should social media be allowed? And, should social media platforms be held responsible for content submitted by users? Its not as black and white as some may think.

The First Amendment, vague in its explanation, is so in order to allow growth. But when that growth alters the flow of accurate information, or the interpretation is changed, we owe it to our nation to get it right.

For all the good social media brings to us, it is here that it lets us all down daily. We dont know who to trust with factual information. We become confused with who is sharing factual information. So we end up sharing and spreading information we believe to be true whether is or is not, ultimately exercising our own right to Freedom of Speech.

Is it right to censor social media platforms to help decrease the flow of false information? Is it our right under the First Amendment to share information whether accurate or not? Is it OK that social media platforms have the right to censor its users?

The quote below was written by the 28th President of the United States, Woodrow Wilson, in 1917. No matter what your opinion of President Wilson is, when reading it, it almost feels as though it is describing our nation today.

I can imagine no greater disservice to the country than to establish a system of censorship that would deny to the people of a free republic like our own their indisputable right to criticize their own public officials. While exercising the great powers of the office I hold, I would regret in a crisis like the one through which we are now passing to lose the benefit of patriotic and intelligent criticism.

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RICH MACKE: Social media and the First Amendment - Scottsbluff Star Herald

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John Bolton Is Not the Free Speech Hero We Need - Slate

President TrumpDonald John TrumpTrump mocked for low attendance at rally Trump suggests legislation that would jail people who burn the flag for a year Trump makes defiant return to campaign stage amid controversies MORE suggested at his campaign rally in Tulsa, Okla., on Saturday that legislation be proposedtorequire a minimum sentence of a year for anyone who burns the American flag.

We ought to come up with legislation that if you burn the American flag you go to jail for one year, Trump said,pointing to Oklahoma Republican Senators Jim InhofeJames (Jim) Mountain InhofeTrump nominee denounces past Islamophobic tweets Republicans face long odds of changing provision on Confederate-named bases Overnight Defense: Trump plan to pull troops from Germany gets bipartisan pushback | Top GOP senator says it's time to look at changing Confederate-named bases | GOP divided over renaming Army bases MORE and James LankfordJames Paul LankfordTrump suggests legislation that would jail people who burn the flag for a year Most Trump rally attendees opt not to wear face masks White House dismissal of COVID-19 concerns draws criticism MORE in the crowd.

We oughta do it. We talk about freedom of speech but thats desecration.

"We ought to come up with legislation that if you burn the American flag you go to jail for one year ... if somebody wants to burn the American flag and stomp on it, but just burn it, they go to jail for one year" -- Trump pic.twitter.com/sbETQDwUkp

Burning the American flag is not illegal.

In the 1989 case Texas v. Johnson, the Supreme Court ruled in a 5-4 decision that the act of burning an American flag is constitutionally-protected free speech under the First Amendment.

The presidenthas suggested similar legislation in the past. However, hisidea has resurfaced recently after several demonstrators protesting the death of George Floyd were seen burning U.S. flags.

The death of Floyd, an unarmed Black man who died in Minneapolis police custody, has sparked massive protests across the country, including in front of the White House and throughout the nation's capital.

During a conference call with governors earlier this month, Trump reportedly called the act a "disgrace" and pledged support for an "anti-flag burning" statute.

"We have a different court and I think that it's time that we review that again. Because when I see flags being burned they wanted to crawl up flag poles in Washington and try and burn flags but we stopped them," the President told governors, according to audio of the call obtained by CNN.

"They're weren't able to do it. They would've done it if we didn't stop them. I think it's time to relook at that issue, hopefully the Supreme Court will accept that."

Read more here:
Trump suggests legislation that would jail people who burn the flag for a year | TheHill - The Hill

The rock star has been very active on his social media during the lockdown. Mainly Brian May has been sharing micro-concerts to entertain fans, alongside updates on recovering from recent health problems including a minor heart attack. Additionally, the 72-year-old has shared a few opinions on current affairs, with his latest being on the importance of protecting free speech in the particularly hot political climate the world is in right now.

May wrote: The only thing we can change. Im a believer in the vital importance of a truthful and accurate history.

In George Orwells book 1984 the hero works in the Ministry of Truth - REWRITING history as recorded in Newspapers etc. So really, of course, its the Ministry of Lies.

The resulting propaganda is what is used to whip the populace up into a frenzy, in which they never question what they are being told.

I sense a real danger of the erosion of free speech in todays rush to tear down society as we know it.

READ MORE:Freddie Mercury and Queen quiz questions and answers

The Queen guitarist said: I believe the only thing we can change is the future. And however much we may hate the past or dislike it or be ashamed of it, its not changeable.

And its essential, its vital that we dont try to change it or sweep anything under the carpet because with all its atrocities and evil deeds and mistakes, it has to be preserved intact and in truth otherwise our children and our childrens children will have no idea what we were trying to do in 2020.

Its vital that we know these things or humanity will never learn these lessons. Imagine trying to pretend that the Holocaust never existed, what a terrible mistake that would be.

Imagine that trying to pretend that the whole of the last war didnt exist or that all the appalling acts of torture [and] betrayal that the human race has committed, imagine if that was all covered up or changed in some way and we were no longer telling the truth.

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Brian May warns real DANGER of free speech erosion Everything depends on it WATCH - Express

I have seen a remarkable amount of commentary in the aftermath of the Supreme Courts decision in Bostock v. Clayton County arguing that the Supreme Court dealt religious liberty in America a serious, dangerous blow. Bostock, for those who dont follow SCOTUS case names closely, is the case that interpreted Title VIIs prohibition against discrimination on the basis of sex to necessarily include sexual orientation and gender identity.

As I read piece after piece, I realized that many of the people writing about the impact on religious freedom simply didnt understand the law. A generation of Americans raised on breathless activist warnings about freedoms demise genuinely believe that religious organizations teeter on a dangerous precipice. They genuinely believe that free speech hangs in the balance. While liberty is under pressure (it always isevery single material liberty recognized and secured by the Bill of Rights faces constant, sustained pressure from an expanding state), its reach is still vast.

Warningwhat follows is a detailed legal discussion that just might bore you. But if youre interested, power through. And feel free to share this newsletter with your concerned friends, your concerned pastor, or your worried school principal.

Im going to outline the key federal statutory and constitutional protections for religious liberty and religious Americans that exist now, today, after Bostock and why I believe that, if anything, many of these protections are more likely to be extended, not restricted, in the coming days and weeks. So, here goes:

Religious employers have a right to impose religious litmus tests on their employees. Title VII of the Civil Rights Act of 1964the same statute at issue in Bostockcontains a provision specifically designed to protect the autonomy of religious organizations. It states, This subchapter shall not apply ... to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Its true that this carveout does not allow the religious organization to discriminate on other grounds (such as race or sex), but it does allow them to filter out all applicants who do not share the groups faith. This has a profound impact on the relevant applicant pool and (along with the First Amendment) permits employers to require that applicants agree to the organizations statement of faith.

Religious employers are completely exempt from nondiscrimination statutes when hiring and firing ministerial employees. The ministerial exception may well be the key firewall protecting church from state. Put simply, and as defined by a unanimous Supreme Court in 2012, both the Free Exercise and Establishment clauses of the First Amendment work together to remove the stateincluding all nondiscrimination lawsfrom the ministerial selection process.

The precise definition of a ministerial employee is presently before the Supreme Court. The key question is the extent to which the employee performs important religious functions and whether an employees title and training must also reflect those functions.

Its clear the exemption applies to called and trained clergy. By the end of the courts term, its likely also to apply to a broader range of religious employees who are engaged in religious instruction.

Religious educational institutions enjoy a right to exempt themselves from Title IX. If theres a single question Ive received more than any other, its this: Does Bostock mean that religious schools will now have to alter policies regarding dorm rooms or sexual conduct to comply with federal prohibitions against sexual orientation and gender identity discrimination?

The short answer is no. The longer answer is nope, not unless they choose to be subject to Title IX, the federal statute that prohibits sex discrimination in federally funded educational programs and activities.

To be clear, Bostock is an employment case (and thus the sections above apply to employment at religious schools), but one would expect that the definition of sex applied in Title VII would also extend to Title IX, thus preventing sexual orientation and gender identity discrimination in, for example, codes of conduct, dorm placements, and athletic programs. .

But Title IX contains a special carveout:

[T]his section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.

The exemption is not automatic. Schools have to choose to opt out (either proactively or in response to a Title IX complaint), and a number of religious schools have taken advantage of this provision. Many have not, but it is their choice, and that choice is plainly and clearly embedded in federal law.

Religious organizations (including religious schools) increasingly have a right of equal access to public funds. Few areas of constitutional litigation have been more relentlessly successful than the attempt to claw away at illegitimate and discriminatory attempts to relegate faith-based organizations to second-class status. For years, the argument that there had to be a high wall of separation between church and statewords that appear nowhere in the Constitutionmeant that religious organizations could not participate in otherwise-neutral state-funded programs simply because they were religious.

The Supreme Court has taken a jackhammer to that idea. Key cases include:

Rosenberger v. Rectors and Visitors of the University of Virginia (1995). SCOTUS held that a Christian publication on campus had a right of viewpoint-neutral access to student fee funding. (During my legal practice, I used that precedent to help secure millions of dollars in funding for Catholic and Evangelical student groupsincluding funding that directly applied to efforts to evangelize the campus.)

Zelman v. Simmons-Harris (2002). The Supreme Court held that a Cleveland, Ohio, school voucher program did not violate the Establishment Clause by permitting religious schools to be voucher recipients. This cleared the way for the state to fund (through vouchers distributed to parents) faith-based education as part of a larger program designed to increase school choice.

Trinity Lutheran v. Comer (2017). In a 7-2 decision, the Supreme Court held that the state of Missouri violated the Free Exercise Clause when it excluded a church from receiving a grant as part of a secular and neutral state program designed to make childrens playgrounds safer.

Critically, the court will soon decide yet another case involving state aid to religious schools, Espinoza v. Montana Department of Revenue. In Espinoza, the court will decide whether its lawful to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

In plain English, if SCOTUS rules for the plaintiff in the case, then it will place one of the final nails in the coffin of anti-Catholic Blaine Amendmentsstate constitutional provisions that blocked aid to sectarian institutions as part of a transparent effort to preserve a Protestant monopoly on public funds.

Religious organizations enjoy a right of equal access to public facilities. I dont need to spend much time on this category, but many younger Americans might be shocked to find out that it was once an open question whether Christian groups had a right to meet in empty classrooms or gymnasiums on the same basis and with the same access as secular groups.

A series of cases, from Widmar v. Vincent (1981) to Lambs Chapel v. Center Moriches Union Free School District (1993) to Good News Club v. Milford Central School (2001) blasted open access at every level of education, from elementary schools to colleges and universities. And now tens of thousands of student groups and even churches meet (often for free or for nominal fees) and preach the Gospel from public lands.

Religious Americans are protected from discrimination in the workplace. You might look at all the paragraphs above, and say, Thats all well and good, but Im not worried about the government. Im worried about my employer. Well then, youre in luck. The same civil rights act that now protects LGBT Americans also explicitly protects people of faith. Remember, Title VII protects against discrimination on the basis of race, sex, and religion. Heres the scope of that protection, as outlined by the Equal Employment Opportunity Commission:

With respect to religion, Title VII prohibits:

treating applicants or employees differently based on their religious beliefs or practicesor lack thereofin any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (disparate treatment);

subjecting employees to harassment because of their religious beliefs or practicesor lack thereofor because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.);

denying a requested reasonable accommodation of an applicants or employees sincerely held religious beliefs or practicesor lack thereofif an accommodation will not impose more than ade minimiscost or burden on business operations;and,

retaliating against an applicant or employee who has engaged in protected activity, including participation (e.g., filing an EEO charge or testifying as a witness in someone elses EEO matter), or opposition to religious discrimination (e.g., complaining to human resources department about alleged religious discrimination).

It is quite true that the case law interpreting and applying Title VII religious discrimination claims to private employers is not nearly as extensive as the case law applicable to race or sex. Theres a simple reason for thatemployers have not engaged in large-scale religious discrimination the in same way that theyve engaged in race and sex discrimination. People of faith have largely been left alone in the workplace.

That can change, of course, and there is anecdotal evidence (anecdata) that it is changing, but if discrimination does occur, people of faith have a potent legal weapon in their back pocket.

Religious Americans enjoy the protection of a federal super statute. Im using Justice Neil Gorsuchs words to describe the Religious Freedom Restoration Act, a law that hovers over and above all other federal laws, providing extraordinary protection to people of faith.

Thats the law that in 2014 permitted Hobby Lobby to opt out of part of the Obamacare contraception mandate.

Thats the law that this year protected progressive immigration activists from criminal prosecution for trespassing on federal lands to leave food and supplies for illegal immigrants crossing a desolate portion of Arizonas border with Mexico.

And speaking of super statutes, I havent even touched the Religious Land Use and Institutionalized Persons Act, a federal law passed in the last year of the Clinton administration that has granted countless local congregations special protection from hostile zoning boards and planning commissions.

Finally, keep a close eye on the next term of the Supreme Court. SCOTUS has accepted for review Fulton v. City of Philadelphia. The petitioners in Fulton seek protection from a Philadelphia rule that required a Catholic foster care agency to provide written endorsements for same-sex couples (in violation of church teaching) as a condition of participating in the citys foster care system.

In addition, the petitioners are asking the court to revisit Employment Division v. Smith, a 1990 Supreme Court opinion that substantially restricted the strength and scope of the Free Exercise Clause. If the petitioners prevail, it could well represent the most significant advance for religious liberty in decades.

Look again at all the elements above. Yes, it is true that in some respects religious liberty is under siege. There are activists and lawmakers who want to push back at multiple doctrines and some radicals even dream of revoking tax exemptions from religious organizations that maintain traditional teachings on sex and gender. But if the siege is real, then so is the citadel. People of faith in the United States of America enjoy more liberty and more real political power than any faith community in the developed world.

Look also at something else. Why did I include the dates of each court decision? Because they demonstrate that the effort to find, cultivate and confirm originalist and textualist jurists has borne legal fruit. There are those who decry the conservative legal movement as a failure after the Bostock decision. This is simply untrue. The conservative legal movement is one of the most successful legal movements in modern American history.

In the face of progressive control of the vast majority of the legal educational establishment, conservatives have created, sustained, and nurtured an intellectually vibrant and determined community of lawyers, scholars, and judges who have transformed American law to better match the meaning and text of the American Constitution. It has not accomplished all it could (what movement ever does?)and there have been bitter disappointmentsbut it has made an enormous impact by securing liberties that American Christians now take for granted.

Yes, in spite of legal successes many people of faith face profound cultural headwinds (not on all fronts, however, the pro-life movement has made immense strides, which weagaintotally take for granted). But those headwinds do not exist because the law failed us. The law has given every religious American, every religious organization, and every church or synagogue all of the liberty they need to speak words of truth and grace into our fallen culture..

The question for Americas religious community, then, is not whether we have libertyor will have liberty for the foreseeable futurebut rather what we do with that liberty. As John Adams declared, Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other. Im afraid that while the church has been consistently religious, it has not been consistently moral. And in its political witness it seems to grow less moral by the day. We cannot expect the lawor any other arm of the stateto heal the churchs self-inflicted wounds.

Ive spent the vast bulk of my professional life standing guard on the citadel of free exercise and free speech, working to expand its walls and hardening its fortifications. But that citadel exists for a purpose beyond its mere continued existence. It is supposed to empower the church to fearlessly act as salt and light in a broken world. Im reminded, however, of Christs words in the Sermon on the Mount:

You are the salt of the earth,but if salt has lost its taste, how shall its saltiness be restored? It is no longer good for anything except to be thrown out and trampled under people's feet.

In many quarters of American religion, a trampling is underway. It is not the laws fault that the church faces a reckoning, and even as we seek to preserve and strengthen our legal citadels, we must remember that it wont be the law that brings repentance and awakening. May God grant churches the grace and wisdom to use wisely and for his kingdom the abundant liberties they now possess.

One last thing ...

Every now and thenespecially in times of sorrow and certaintyits vital to remember the absolute sovereignty of Godto remember that in his will all is well. This song is by Robin Mark, and its been blessing me for more than a decade. Enjoy:

Photo by Scott Olson/Getty Images.

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The True Extent of Religious Liberty in America, Explained - The Dispatch