Freepreach.org - Protecting the Free Expression of All Religious Traditions
Shaky legal support?
Roman P. Storzer
Our analysis of Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000), offers a rebuttal to opponents of free political speech who argue that the case supports the IRS ban on such activity. Rossotti has been employed by the IRS and pro-censorship groups to support sweeping restrictions on what may be said by religious leaders during an election season. Unfortunately for those advocates, it's not so simple:
What about the kind of speech or conduct that an ordinary, socially engaged, bona fide house of worship might actually consider undertaking in connection with an election? For example, what about a minister preaching from the pulpit to his or her own congregation--even about particular candidates and voting--rather than in a newspaper ad to society at large? Is that also "intervening in a political campaign"? Branch Ministries does not resolve that question.
Rossotti was limited to narrow facts--the purchase of advertising space in national newspapers urging the public at large to vote for a specific candidate--and had nothing to say about the regulation's harm to freedom of association principles. Even so, it is the only case relied upon by the IRS in its recent warning to churches. At least as to preaching from the pulpit, the decision itself explicitly leaves open the possibility for a free speech challenge: "The Section 501(c)(3) status of the Church was not revoked on the basis of any expressive activity that occurred on the property of the Church, the purportedly 'open' forum. Instead, the Section 501(c)(3) status was revoked because the Church took out a full-page advertisement advocating against a partisan political candidate." There is little doubt that Rossotti leaves open more questions than it answers.