Liberal Suppression: Section 501(c)(3) and the Taxation of Speech 9780226522135

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Liberal Suppression

Liberal Suppression Section 501(c)(3) and the Taxation of Speech

PHILIP HAMBURGER

The University of Chicago Press Chicago and London

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2018 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 East 60th Street, Chicago, IL 60637. Published 2018 Printed in the United States of America 27 26 25 24 23 22 21 20 19 18

1 2 3 4 5

ISBN-13: 978-0-226-52194-7 (cloth) ISBN-13: 978-0-226-52213-5 (e-book) DOI: https://doi.org/10.7208/chicago/9780226522135.001.0001 Library of Congress Cataloging-in-Publication Data Names: Hamburger, Philip, 1957– author. Title: Liberal suppression : Section 501(c)(3) and the taxation of speech / Philip Hamburger. Description: Chicago ; London : The University of Chicago Press, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017034940 | ISBN 9780226521947 (cloth : alk. paper) | ISBN 9780226522135 (e-book) Subjects: LCSH: Freedom of speech—United States. | Tax exemption—Law and legislation—United States. | Tax exemption—Law and legislation— United States—History. | Religion and politics—United States. | Religion and law—United States. | Constitutional law—United States—Religious aspects. | Religion and state—United States. | United States. Constitution. 1st Amendment. | Liberalism—United States—Religious aspects. | Liberals—United States—Attitudes. Classification: LCC KF4772.H35 2018 | DDC 343.7306/6—dc23 LC record available at https://lccn.loc.gov/2017034940 ♾ This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

For Joseph

[T]he justification of freedom from taxation of the property of religious societies is already questioned and may at any time become a practical issue. . . . [N]either in France nor in any other State could any objection lie to any appeal to any group of people within the State to express their views and sentiments at a State election, excepting when that group of people within the State is under a compulsory obedience to a sovereignty alien to the State, and is directed as to the principles that must guide them in fulfilling their civic duties by the officials representing, within the State, that alien sovereignty. char les c . m arshall ,

The Roman Catholic Church in the Modern State (1928)

How far may a church go in teaching disloyalty to the American government as a religious principle? How far may it go in inculcating opposition to the principles on which our government is founded? . . . Can it be allowed to organize political machinery on a religious basis? May it use its spiritual authority to coerce voters or members who are in public office? . . . Catholics [must] understand exactly the political philosophy we offer them. This requires . . . a codification of the rights and duties of churches under the principle of separation of church and state. Some of the questions involved are: The legal position of all churches in respect to the State, to their members, and to each other, together with their duties toward the State and the precise limits of their right to political activity either directly or through religious power over their followers. . . . In general, we must make Catholics know the American meaning of freedom, equality and Liberalism. imper ial w iz ar d hir a m eva ns ,

The Rising Storm (1930)

§501. Exemption from tax on corporations, certain trusts, etc. (a) Exemption from taxation An organization described in subsection (c) . . . shall be exempt from taxation. . . . (c) List of exempt organizations The following organizations are referred to in subsection (a): . . . (3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals,

no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation . . . , and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. 26 U.S.C. §501(c)(3) §170. Charitable, etc., contributions and gifts (a) Allowance of deduction (1) General rule There shall be allowed as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year. . . . (c) Charitable contribution defined For purposes of this section, the term “charitable contribution” means a contribution or gift to or for the use of— . . . (2) A corporation, trust, or community chest, fund, or foundation— . . . (B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals; (C) no part of the net earnings of which inures to the benefit of any private shareholder or individual; and (D) which is not disqualified for tax exemption under section 501(c) (3) by reason of attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. 26 U.S.C. §170

CONTENTS

INTRODUCTION 1 1.

I.

39

Influence and Propaganda Segregation 98 Subversion 124 Political Theory 143

73

UNCONSTITUTIONAL 167 8. 9. 10. 11. 12. 13. 14.

IV.

Idealistic Organizations in Politics Liberal Democratic Anxieties 48

THE LIBERAL ASSAULT 71 4. 5. 6. 7.

III.

21

GROUP SPEECH AND LIBERAL FEARS 37 2. 3.

II.

Conceptual Foundations

The Force of Law 171 First Amendment Principles 190 Licensing and Wholesale Suppression 214 Government Interests 224 Other Avenues for Speech 241 Not Only Exemptions but Also Deductions 249 Distortions of Constitutional Doctrine 256

DIVIDED AND SUBDUED 267 15. 16. 17. 18.

Rights of Associators and Associations 269 Fractions of Persons and Rights 279 Government Homogenization of Public Opinion Contemporary Speech Restrictions 307

CONCLUSION 317 Notes 339 Index 393

295

INTRODUCTION

Revenue subsections generally do not stir the passions of Americans. Nor usually do they illuminate broad developments in culture, theology, constitutional law, and political theory. Section 501(c)(3) of the Internal Revenue Code, however, is no ordinary revenue subsection.1 It exempts religious, educational, and charitable organizations from federal income tax. But it denies them this exemption if they engage in campaign speech or if they devote a substantial part of their activities to propaganda or other attempts to influence legislation. Churches, schools, and charities thus must pay a tax for exercising two of their First Amendment rights: speech and petitioning. Most astonishingly, they must pay a tax for engaging in political speech in politics. They are entirely free to speak politically outside political contests but not in politics. This is an extraordinary abridgment of an essential freedom. Although it is not the harshest abridgment of political speech in the nation’s history, it is among the most sweeping attacks on such speech. Section 501(c)(3) is therefore a puzzle. The First Amendment centrally protects political speech. Nonetheless, section 501(c)(3)’s broad suppression of political speech is widely considered normal and constitutional. This is odd. It therefore is necessary to reconsider the constitutionality of this tax provision. And if it turns out to be unconstitutional, it must be asked why has this not been widely recognized. In answering these questions, this book goes beyond the narrow realm of the tax code and even beyond constitutional law. More broadly, it explores American liberal culture, including its theology, its “democratic” political theory, and its suppression of speech. Put simply, section 501(c)(3) arose from liberal hopes and fears—bright hopes for the mental freedom of individuals and correspondingly dark fears

2 / Introduction

of group speech, especially the speech of churches, lest it threaten individual mental freedom. The fears included fervid and often nativist anxieties about religion and politics—anxieties about propaganda, influence, segregation, and subversion that were widely voiced across the range of American liberalism, from the groves of academia to the klaverns of the Ku Klux Klan. These anxieties and resulting prejudices were pervasive, and they were eventually satisfied, in part, by the use of the tax code to suppress much of the political speech of churches and other idealistic associations. This background makes it painfully clear that section 501(c)(3) has been a mode of suppression. Far from being a technical tax provision, it has been a mechanism for quieting down some central types of political speech, and on this foundation it becomes possible to consider the constitutional question afresh—to see how plainly section 501(c)(3)’s speech restrictions violate the First Amendment. At the same time, the history of section 501(c)(3) illuminates some largely ignored features of American liberalism. Liberalism has done much to elevate the minds of Americans above narrow interests and prejudices. But there are two sides to every coin, and the history of section 501(c)(3) reveals much about liberalism’s theological and nativist elements, about its overheated fears of churches and other idealistic associations, about its demands that they suppress their speech, and about its justification of this in terms of political philosophy. Somewhat similar developments can be observed in other countries— most prominently in France, where, since 1905, a “culte” must confine itself to narrowly religious activities and must avoid “cultural activities” such as publishing. Even more than the later American suppression, this French suppression arose from profoundly anti- Catholic anxieties for the preservation of the state. Although the French example was suggestive for some Americans, it probably did not much affect American developments. More pertinent is that the two nations had parallel responses to their versions of liberal anxieties. Their policies therefore ran in the same direction.2 Of course, there are orthodox as well as liberal assaults on speech, and no one has a monopoly of personal or constitutional virtue. Different types of speech constraints, however, have different foundations, and in order to understand section 501(c)(3) and some other speech restrictions, this book must focus on the threat from liberalism. Overall, in studying liberal anxieties and their results in section 501(c)(3), this book explores fields that are not typically considered together. For tax lawyers the book shows the unconstitutionality of two phrases in a revenue subsection; for First Amendment lawyers it reveals the theo-political forces

Introduction / 3

underlying a range of speech restrictions; for religion scholars it addresses the transformation of American theology and the declining public role of churches; and for students of government it explains the development of liberalism and the sordid foundations of liberal democratic political theory. It may seem odd to frame a reconsideration of liberalism, speech, theology, and political theory around a revenue subsection, but section 501(c)(3) opens up a window on the broad landscape of American liberalism, including not only its sunlit uplands but also its more dismal valleys.

Section 501(c)(3) Although this book mostly avoids narrow tax questions, it must begin by laying out section 501(c)(3)—to observe that however technical it may appear, it focuses on idealistic organizations and cuts back on their political speech. At stake is not merely a tax but the freedom of Americans to join together and bring their ideals to bear on politics.a The Statute Section 501(c)(3) identifies organizations exempt from taxation. As a preliminary matter, subsection 501(a) provides that “[a]n organization described in subsection (c) . . . shall be exempt from taxation under this subtitle”—thus generally exempting some as-yet-undefined organizations from the federal income tax. Subsection (b) qualifies this exemption by taxing even the exempt organizations for their “unrelated business income.” Then, subsection (c) lists the exempt organizations.3 Of particular interest here, subsection (c)(3) exempts corporations and other organizations dedicated to specified purposes: Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty

a. Incidentally, for the sake of readers who are not tax experts, this book speaks simply of “section 501(c)(3)” and “section 170(c)”—even sometimes when it is referring to their differently numbered predecessors in federal tax statutes. For similar reasons, when this book is discussing the era of the Bureau of Internal Revenue, it nonetheless occasionally generalizes about the “Internal Revenue Service” or “IRS.”

4 / Introduction to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual.

It is usually said that section 501(c)(3) thus exempts “nonprofits,” and this anodyne technical label may suffice for calculating taxes. It may even, perhaps, be sufficient for understanding why the organizations are not subject to the income tax. The label fails, however, to capture section 501(c)(3)’s broader import, for by including religious, educational, and otherwise charitable organizations, it covers the central categories of idealistic associations.4 This focus is troubling, because in exempting idealistic organizations, section 501(c)(3) also requires them to limit their political participation. After reciting the types of exempt organizations, section 501(c)(3) adds that the exemption is only for an organization no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation . . . , and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

The exemption for churches, schools, and charities thus comes with two restrictions on the exercise of First Amendment rights: a substantial restriction on speech to influence legislation and a complete restriction on campaigning. Section 501(c)(3) thus takes aim at, not all, but nonetheless central types of political speech.5 It is bad enough that section 501(c)(3) specifically singles out religious organizations for such restrictions. Even more broadly, the section imposes its restrictions on almost the full range of idealistic organizations. It targets the religious, educational, and charitable organizations through which Americans associate to pursue and espouse their ideals, in contrast to the business, labor, or other associations through which Americans organize to pursue various types of self-interest. What at first glance is just a tax provision thus turns out to be an astonishing intrusion on the liberty of Americans to unite for idealistic purposes and voice their aspirations in the political sphere. Another Statute Aligned with the suppressive effects of section 501(c)(3)’s exemption is section 170’s deduction. Whereas the one section exempts idealistic organiza-

Introduction / 5

tions from income tax, the other adds that a donor to such an organization can deduct his contribution from his income, thus reducing his income tax. This deductibility (as will be seen in chapter 13) is a means of indirect government support for idealistic organizations, and it has the effect of reinforcing section 501(c)(3)’s speech limits.6 Although section 170(a) generally allows a charitable contribution to a religious, charitable, or educational organization to be deductible, section 170(c) defines a gift to be a charitable contribution only as long as the recipient organization is one “which is not disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” Section 170(c) thus ties its deductions to section 501(c)(3)’s restrictions.7 To most tax lawyers—whether engaged in tax planning or more academic tax analysis—deductions seem at least as significant as exemptions, and such lawyers may therefore be surprised that this book concentrates so heavily on section 501(c)(3). This focus, however, is no accident. For purposes of the history, section 501(c)(3) and its exemptions are central, because the anxieties and prejudices that underlay the tax code’s speech restrictions initially developed largely as to organizations and their exemptions. In addition, for constitutional purposes, section 501(c)(3) is foundational because section 170 does not independently impose one of the restrictions. To be sure, it recites the restriction on campaigning. But it merely piggybacks on section 501(c)(3) for the lobbying restriction. More precisely, it offers deductibility only for gifts to organizations that are not “disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation.” The lobbying restriction thus has no independent existence in section 170. Notwithstanding the historical and constitutional reasons for focusing on section 501(c)(3), section 170 is also important in this inquiry. Section 170(c)’s speech restrictions parallel those in section 501(c)(3), and in denying deductibility on the basis of the speech restrictions, section 170(c) creates profound pressures for conformity—pressures that many nonprofits feel even more severely than those arising from section 501(c)(3). Thus, even though this book concentrates on section 501(c)(3), it also occasionally considers section 170(c) and its constitutional weaknesses.

6 / Introduction

Churches, Schools, and Charities These two statutes speak in terms that have become part of tax law but that are somewhat distant from the realities of American life. Most centrally, they speak of organizations with religious, educational, or charitable purposes, and these terms are so bland and abstract—are so remote from the ways in which Americans ordinarily talk about their associations—that they do not adequately convey what is at stake. This book, therefore, often eschews the statute’s terms and speaks more concretely about the suppression of churches, schools, and charities. Of course, in speaking about schools, this book usually means only private nonprofit schools (unless it indicates otherwise); and in talking about churches, it typically means all houses of worship, not merely those that are Christian. Although these caveats are substantial, the words “churches” and “schools” have the virtue of clearly identifying the sorts of associations that are suppressed.8 It is too soon to explore what lies behind the tax code’s speech restrictions on religious, educational, and charitable organizations, but already here it is important to observe that these different types of organization are not as distinct as the statutory phrasing may seem to suggest. Although the tax code classifies them by subject matter, it recognizes that they all are versions of common law charities, and it therefore mostly treats them alike. Traditionally, moreover, many educational and charitable organizations were, in one way or another, religious. They tended to be religiously inspired or influenced, and they were often under ecclesiastical or clerical control. Readers therefore should not be surprised to find that attitudes toward churches and church schools drove much of the debate about all sorts of exempt organizations.

An Open Question Already at the outset, readers should be cautioned against thinking that the constitutionality of section 501(c)(3)’s speech restrictions is a closed question. It is easy to assume that the matter is so settled or obvious that there is little more to discuss. In fact, the constitutional question is far more interesting and unresolved than is commonly understood. To be sure, in Regan v. Taxation without Representation, the Supreme Court upheld section 501(c)(3)’s lobbying restriction. But when one realizes that section 501(c)(3)’s speech restrictions rest on profound theo-political anxieties and prejudices, and when one notices that even the Court’s conclusion

Introduction / 7

in Regan reflected such fears and presuppositions, then the decision no longer seems dispositive. The history unsettles existing precedent. It may also be thought that, because the speech restrictions are merely conditions, their constitutionality is too obvious to be disputed. Certainly, it is widely assumed that the restrictions are merely conditions on a government subsidy and that it is therefore an uphill struggle to argue that they are unconstitutional. Readers, however, should hold their skepticism in abeyance. They will soon find that, although section 170’s deduction can be understood to have a subsidizing effect, section 501(c)(3)’s exemption cannot so easily be considered a subsidy. They will discover, moreover, that the subsidy view of the exemption developed largely out of prejudice. And even if the exemption is a subsidy, section 501(c)(3)’s offer of either taxation or reduced speech is a direct constraint. (Offering someone a choice between two constraints does not make either voluntary.) Last but not least, even if section 501(c)(3)’s exemption is merely a subsidy, without any constraint, its restrictions still run into difficulty. For one thing, they are neither proportionate nor germane. More broadly, private consent cannot enlarge the government’s constitutional authority. And in any case, the restrictions discriminate theologically in the distribution of privileges in violation of the Establishment Clause. Of course, readers may ultimately disagree about these conclusions. But at this stage the point is simply that the constitutional question is far from settled or obvious. Indeed, it is wide open.

Conceptual Foundations This book sometimes departs from what may be expected, and there is consequently a risk that readers may misunderstand the argument. To minimize the danger of misreading, whether about narrow legal doctrines or broad questions of theology and political theory, chapter 1 elaborates some of this book’s basic conceptual assumptions.

Part I. Group Speech and Liberal Fears How did idealistic group speech come to be viewed as dangerous? And how have Americans come to assume that it may need to be suppressed? The historical answer to these questions begins not in the twentieth century, but in the eighteenth and especially the nineteenth century. Part I therefore traces the early development of liberal fears of group speech. By focusing on

8 / Introduction

the eighteenth and nineteenth centuries, part I lays the foundation for this book’s twentieth-century argument. Chapters Traditionally, as explained in chapter 2, churches and other idealistic associations played a crucial role in enabling individuals to espouse their opinions effectively in the public and political sphere. This was profoundly important for their freedom because (as Alexis de Tocqueville observed) it is only through private associations that public opinion can be preserved as a force independent from government. Nonetheless, as explained in chapter 3, another point of view has become increasingly popular. In response to theologically liberal anxieties, growing numbers of nineteenth-century Americans came to fear the speech or opinion of churches and related organizations as a threat to the individuality of individuals and their freedom of thought—even as a threat to the nation and its democracy. Although these fears began as a matter of theology in response to relatively orthodox churches and their ministers, they soon reached all sorts of churches and even other sorts of associations and their members. In sum, although idealistic organizations and their speech were essential for the preservation of liberty, they and their speech provoked liberal fears for the liberty of individuals and the democracy of the nation. The concerns that eventually found expression in section 501(c)(3)’s speech restrictions thus had a long history in liberalism, and this is revealing about the fears, about liberalism, and ultimately about the suppression. Oppressive Speech An underlying theme of part I is the notion of oppressive speech. An essential element of the liberal reconfiguration of freedom of speech was the recasting of demands for suppression in terms of demands to redress oppressive opinion and speech. American liberalism and American law are based in hopes for freedom, and they could not have turned toward suppression without a vision of speech as oppressive—in other words, without an understanding of some speech restrictions as necessary for freedom. It may seem strange to view speech and suppression in such ways, but as already suggested, many Americans, long before the adoption of section 501(c)(3), began to worry about the opinions and speech of churches and other idealistic organizations. From a theologically liberal perspective, ide-

Introduction / 9

alistic organizations and their speech tended to stifle the mental freedom of individuals and even threatened the nation’s democracy. And on the basis of these liberal fears of group speech, it could seem that government had to take action. The liberal anxieties about group speech as a danger to mental freedom eventually, at least by the late twentieth century, expanded to include fears of speech that cause mental discomfort, pain, or trauma. Of particular concern has been the speech that seems orthodox, conventional, stereotyped, and in this sense “illiberal,” and that is felt to cause mental hurt to individuals who understand themselves to have unorthodox or unconventional identities. Not simply a rejection of verbal slights, this is more precisely a repudiation of illiberal speech on the theory that it is harmful or oppressive. Whether aimed at the speech of organizations or at illiberal speech, liberal suppression stands in contrast to the suppression attributed to various orthodoxies. For many centuries, restrictions on speech tended to arise from anxieties about the speech that undermined orthodox truths and conventional morality. Orthodoxies have therefore often seemed the primary threat to speech—as evident from a host of examples, ranging from the medieval European repression of religious dissent to the nineteenth- and early twentieth-century American restrictions on sexual expression. In the twentieth century, however, the threats to speech were shifting. Rather than merely a product of orthodox fears, suppression has increasingly come from a different direction—from liberal fears, not least about orthodoxies and the organizations in which they thrived. Contemporary threats to speech are widely recognized, but the liberal anxieties that underlie many of them are insufficiently understood. In his Kindly Inquisitors, Jonathan Rauch documents recent attempts to punish speech for causing individuals mental trauma or pain. He recognizes that many threats to speech traditionally came from relatively orthodox perspectives—what he calls “fundamentalism.” He also recognizes that the limits on speech for inflicting mental discomfort come from a different direction. But rather than analyze the new sort of danger in terms of “liberalism,” he says it results from an exaggerated “humanitarianism” and claims that, from different directions, the fundamentalism and the humanitarianism threaten “liberal science.” He thereby utterly discounts the possibility that many contemporary threats to speech arise from liberal fears.9 More recently, Greg Lukianoff condemns demands for a “freedom from speech.” He argues that American efforts at suppression are symptoms of a basic human weakness—an all too human desire for mental comfort, undisturbed by disruptive or painful opinion. American demands for suppression

10 / Introduction

are thus, from his point of view, little different from such demands in other parts of the world and cannot be blamed on liberalism, let alone American liberalism. This generically human explanation of human failings is attractive, and at a fundamental level makes much sense, but it would be a mistake to take it so far as to blur the differences among different cultures and thereby miss the distinctive features of some types of suppression.10 America has been an unusually liberal society, with high ideals of freedom, and it is therefore not an accident that so many Americans have tended to cast their demands for suppression in terms that reflect such ideals. They have done so, however, not so much in terms of a freedom from speech as in terms of the stifling and oppressive character of some sorts of speech. This vision of some opinion or speech as oppressive initially developed as part of the theologically liberal rejection of religious authority, at first in England and then, even more vigorously, in America, and it has portrayed much speech as a threat to mental freedom or well-being and ultimately to democracy. Although this vision has spread beyond England and America, it remains very American, and it explains much about section 501(c)(3) and a wide range of liberal suppression in the United States. Among other things, it suggests how the suppression of speech in America acquired its liberal slant—its slant against the speech of organizations and against “insensitive” orthodox or illiberal opinion. In many cultures, group speech tends to be punished as an affront or offense to another group. In the liberal understanding, however, group speech or opinion can be viewed as oppressive to individuals and their democracy—thus allowing the suppression of speech to be justified on a theory of individual and political freedom. Of course, liberal ideas did not accomplish this alone. They became intertwined, beginning in the late nineteenth century, with progressive ideas (drawn from Germany) about the state and the pursuit of freedom through its power. Underlying liberal and progressive tendencies, moreover, was the sociological development of the American people, who increasingly were individuated and resentful of the censorious claims of religious and other groups that claimed to speak with moral authority. On this foundation, the liberal fears about group speech can be understood as the anxieties of an individuated majority about more cohesive minorities and their expression of nonconforming ideals. Liberal anxieties gradually reconfigured understandings of freedom of speech. Whereas the First Amendment guarantees a freedom of speech from government, liberal anxieties led many Americans to assume that, under the First Amendment, government must be able to protect individuals and their democracy from speech—not least (as traced in this book) from the speech

Introduction / 11

of churches and other idealistic associations. Thus, rather than bar suppression, the Constitution came to permit it. This reconceptualization of speech, in which freedom of speech has significantly given way to a vision of much speech as oppressive, was part of a broader transformation of ideas of liberty and oppression. The danger of oppression once seemed to come centrally, although not exclusively, from government and its constraints on freedom, and traditional liberal ideas did much to limit this danger. In an ever less cohesive society, however, the threat has increasingly also seemed to come from other Americans—not least from their freedom to associate and speak—and the evolution of liberalism has had a profound role in this shift. By envisioning much speech as oppressive to the mental freedom or well-being of individuals, liberalism as it has developed in the past two centuries has justified government suppression of constitutionally guaranteed freedoms.

Part II. The Liberal Assault How exactly did American liberalism contribute to section 501(c)(3)’s suppression of political speech? The answer is not merely legal, or even political, but more basically cultural. Mere law and politics cannot explain how so sweeping a constraint on speech could be adopted and quietly accepted. The sordid history of section 501(c)(3) in Congress is well known. Across half a century (from 1934 to 1987), senators responded to political opposition from idealistic associations by embellishing the section with speech restrictions.11 These senators, however, did not act alone. Congress as a whole adopted the section’s restrictions, and most subsequent lawyers and judges joined them in assuming that it was a lawful tax provision. So broad an adoption and acceptance of the speech restrictions cannot be explained by narrow political desires for suppression or even by legal ideas about it. In addition, there must have been deeper and more widespread expectations of suppression. Hence, part II’s examination of the underlying role of liberalism. Section 501(c)(3)’s restriction arose in the context of a liberal assault on supposedly antidemocratic speech. The assault initially was theological, then became more broadly cultural, and eventually was carried out through tax law. All along, and especially afterward, it was justified in political theory.

12 / Introduction

Chapters As recounted in chapter 4, the most basic element of the attack that gave rise to section 501(c)(3) involved nativist and other liberal anxieties about the speech of churches. These anxieties prototypically focused on the Catholic Church’s “propaganda” and its “influence” on “democratic” elections and legislation, but the fears increasingly took aim more generally at the speech of a wide range of churches and idealistic associations. Against this background, it is no surprise that Congress in 1934 amended section 103—since then renumbered as 501(c)(3)—to restrict “propaganda” to “influence” legislation. Chapter 5 shows how the nativist and liberal anxieties that resulted in section 501(c)(3) included concerns about segregation. Nowadays it is assumed that the only real question about segregation in the decades before the Supreme Court’s 1954 decision in Brown v. Board of Education was racial segregation in public schools. What tends to be forgotten is that theologically liberal fears tended to focus on religious segregation in private schools. It has been suggested by scholars such as Richard Garnett that section 501(c) (3) segregates religion (or at least the religion of churches) from politics, and chapter 5 observes that such observations have some foundation in history. There were widespread nativist and other liberal complaints about Catholic segregation in parochial schools and corresponding demands that Catholic children be desegregated. Interestingly, these demands contributed to the ethos of desegregation that eventually was given effect in Brown. At the same time, however, such demands were part of the circumstances that prompted Congress, in 1934 and especially 1954, to use section 501(c)(3) to segregate churches from democratic politics. The most severe liberal anxieties, as explored in chapter 6, were about subversion. After decades of narrow denunciation of Catholic subversion, and similarly narrow attacks on communist subversion, many liberals came to view Catholic and communist organizations as a twin threat to liberal “democracy.” From this perspective, although it might be unconstitutional to limit the speech of either Catholic or communist nonprofits, it seemed justified, for the sake of democracy, to demand that idealistic associations of all views suppress their political speech. On these assumptions, when the tensions over McCarthyism reached a breaking point, Congress in 1954 repudiated narrow anticommunism and adopted section 501(c)(3)’s more ecumenically suppressive restriction on campaigning by idealistic organizations, regardless of whether they were communist or Catholic. It thus is necessary to reconsider the merely political explanation of sec-

Introduction / 13

tion 501(c)(3)’s speech restrictions. In 1934 and 1954—and once again in 1987—the politicians who introduced the speech restrictions resented the hard edge of campaign speech and petitioning by idealistic associations. The restrictions, however, were not merely political. On the contrary, the underlying concerns were liberal anxieties about propaganda and influence, about segregation, and about subversion—fears that made it seem desirable and even normal to suppress the speech of idealistic associations. Amid these popular anxieties, the politicians felt no compunctions about using section 501(c)(3) to tax the intrusive political speech of idealistic organizations. Part II concludes, in chapter 7, with political theory. What began as a matter of culture was soon elevated as philosophy. It may be thought that liberal “democratic” demands for suppression came merely from extremists. It may also be thought that such demands can be dismissed merely as past prejudice—that they have nothing to do with the current role of section 501(c)(3) in suppressing speech and petitioning. But the underlying attacks on the speech of churches, which came from nativist and more broadly liberal commentators, became the foundation for some of the most widely admired liberal political theory of the twentieth century. The philosophy of John Dewey and John Rawls systematically, albeit not self- consciously, elevated the democratic suppression from religious prejudice to political philosophy. Although the suppression has thereby appeared to leave behind any majoritarian bigotry and any desire to stifle opponents, the high-toned, genteel generalities of the philosophers cannot disguise the underlying history of prejudice and conformism. Recognizing the Reality of Suppression The most basic step in the constitutional analysis is to recognize the reality of suppression. Part II’s history is thus essential for the next part’s constitutional argument. One reason that section 501(c)(3)’s speech restrictions have been so widely accepted is that they have not been recognized as a mode of suppression. Part II’s historical account therefore explores the range of theological and cultural anxieties, even animosities, that underlay the stifling of churches and other idealistic associations. Of course, these prejudices do not by themselves show the unconstitutionality of the speech restrictions, but they force one to recognize the underlying reality and thereby leave one no choice but to take the constitutional question seriously. The existing scholarship on section 501(c)(3) occasionally notices some of the dark clouds—in particular, the segregation of politics from religious

14 / Introduction

organizations and the anxieties about subversion.12 These glances toward the turbulent horizon, however, are all too rare, and in focusing narrowly on section 501(c)(3) and its political context, existing studies do not recognize the breadth and force of the theological and cultural storm. They treat section 501(c)(3)’s suppression of speech as if it were a narrowly legal and political matter—as if it had not evolved amid lurid theological, social, and political anxieties—and the result is to examine it on an almost entirely sanitized historical record. In studying mid-twentieth-century America, it would be absurd to discuss racially discriminatory legislation without considering the underlying racial prejudices. Similarly, it is a mistake to examine section 501(c)(3) without delving into anti-Catholicism, anticommunism, and more general liberal anxieties about the role of private associations in a democracy. By viewing the constitutional question expansively, in a way that includes not only the discussions that rose to the surface of the political waters but also the theology, culture, political theory, and sociological divisions that lurked beneath, part II reveals the reality of section 501(c)(3)’s suppression.

Part III. Unconstitutional The next stage of this inquiry is to analyze the constitutionality of section 501(c)(3)’s restrictions. Do they violate the First Amendment? And if they do, why has this not been recognized? The constitutionality of section 501(c)(3) is no ordinary constitutional inquiry. Rather than one of the many incidental and marginal intrusions on speech that are the bread and butter of much First Amendment jurisprudence, section 501(c)(3) is a broad assault on petitioning and political speech by churches and other idealistic associations, and it thus threatens the core of most First Amendment freedoms. It therefore deserves much more careful study than it has received. The constitutional question turns on five basic elements: the force of law, the violation of constitutional principles, the danger of licensing and wholesale suppression, the possibility of justification in a compelling government interest, and the possibility of justification in alternative avenues for speech. Each stage of the analysis confirms the unlawfulness of section 501(c)(3)’s restrictions.

Introduction / 15

Chapters The initial constitutional difficulty, explored in chapter 8, is to understand whether section 501(c)(3)’s restrictions come with the force of law. They are widely assumed to be merely conditions on a government subsidy or “tax expenditure.” In fact, section 501(c)(3) imposes its speech restrictions as direct constraints or penalties rather than merely as conditions on government expenditures. Indeed, the assumption that the section’s exemptions constitute an expenditure arises not from the scholarship on tax expenditures but from a long history of theological prejudice. Once this prejudice is recognized, it is all the more clear that section 501(c)(3) directly constrains churches, schools, and charities. On this foundation, it will be seen, in chapter 9, how section 501(c)(3)’s restrictions violate the First Amendment’s freedoms of speech, petitioning, and religion, including both free exercise and establishment rights. Even if section 501(c)(3) is merely a subsidy and thus does not directly constrain, its speech restrictions are unconstitutional, for they are disproportionate and nongermane, in violation of the Supreme Court’s doctrine on unconstitutional conditions, and they are part of a discriminatory privileging of one type of religion over others in violation of the Establishment Clause. In the end, it is difficult to avoid the conclusion that the section’s restrictions on political speech, on petitioning, and on churches are grossly unconstitutional. Adding to the constitutional problems, section 501(c)(3) establishes a system of licensing speech and religion—as shown in chapter 10. This licensing violates jury, due process, and other procedural rights and exacerbates the First Amendment difficulties. The licensing even creates a system of wholesale suppression, in which it is much easier to restrict speech than in retail proceedings. Notwithstanding these constitutional violations, might they nonetheless be justified by compelling government interests? This question animates chapter 11. For example, can the suppression of political speech by idealistic associations be justified as a means of protecting the political process? Or can the suppression be excused as a means of preventing the political abuse of tax deductions—as a means of preventing gifts to section 501(c)(3) organizations from becoming, in effect, deductible political contributions? And so forth. Such justifications run into difficulty, for even where the claimed government interests are within the government’s powers, and even where they initially seem compelling, it turns out that section 501(c)(3) is not nar-

16 / Introduction

rowly tailored to these interests. Its restrictions are profoundly overbroad and thus clearly unconstitutional. One of the excuses for the speech restrictions is that idealistic organizations have other avenues for speech—notably, through section 501(c) (4) organizations and section 527 political action committees. From this perspective, the “suppression” scarcely deserves that name and cannot be considered unconstitutional. This excuse for the suppression, however, as hinted in chapter 1 and elaborated in chapter 12, rests on a series of misconceptions about speech and about the Constitution. It assumes that Internal Revenue Service (IRS)–compliant committees are an adequate substitute for the harmonized voices of a congregation; that such committees are not subject to their own speech restrictions; and that churches and other idealistic organizations can directly control the speech of their affiliate organizations. It also fails to recognize how, by forcing idealistic organizations to speak through circuitous mechanisms, the law discriminates against the poor and some of the relatively orthodox. Above all, the alternative-avenue excuse incorrectly focuses on the total amount of messaging from the points of view of idealistic organizations rather than on their freedom of speech—meaning, most basically, their freedom to speak for themselves, in their own voices. In other words, the alternative-avenues excuse fails to appreciate that, even if the total amount of messaging remains constant, the idealistic organizations are still severely suppressed. Put in narrow doctrinal terms, the tax code’s pressures on idealistic organizations to speak through other organizations is anything but narrowly tailored. Thus, although idealistic organizations can partly compensate for the suppression by working through other organizations, the suppression of their own speech remains serious and utterly unconstitutional. Although this book focuses on section 501(c)(3)’s speech restrictions on exempt organizations, chapter 13 examines the constitutionality of the parallel restrictions that section 170 ties to deductions. Section 170’s grant of deductions undoubtedly has a subsidizing effect. Its speech conditions on this subsidy, however, are so broad as to be nongermane and disproportionate, and therefore, like the speech restrictions in section 501(c)(3), they are unconstitutional. Indeed, in at least one way, they are worse than those in section 501(c)(3). Section 170 benefits churches that conform to the government’s vision of appropriate ecclesiastical political engagement, and this discriminatory privileging of churches creates profound Establishment Clause problems. All of this prompts a final question: If section 501(c)(3)’s suppression is so flagrant a violation of basic constitutional principles, how has it been

Introduction / 17

considered lawful for so long? Chapter 14 observes that the suppression has been upheld only with a distortion of constitutional doctrines. For example, the tax expenditure theory has been applied in an entirely selective and discriminatory way to justify section 501(c)(3)’s suppression of speech. Such distortions are illuminating, for they show how the very fears and prejudices that produced section 501(c)(3)’s restrictions have also left commentators and judges blind to the constitutional problems. When the doctrinal distortion is understood, one can begin to see the constitutional questions afresh. The warping of constitutional law that underlies section 501(c)(3)’s alleged constitutionality confirms what otherwise is evident—that section 501(c)(3) suppresses Americans in their exercise of several constitutional rights.

Part IV. Divided and Subdued Although espoused with elevated intentions about preserving liberal democracy, section 501(c)(3) has the effect of dividing and subduing Americans. At the very least, it is part of a broader tendency in United States to divide Americans and allow them only fractions of their rights. Not coincidentally, it is also part of a tendency toward government homogenization of opinion in which outlying perspectives are subdued. Chapters Section 501(c)(3), as seen in chapter 15, interferes with the constitutional freedom of Americans to speak in unison. It thereby violates the rights both of associators and of their associations. Chapter 16 explores how section 501(c)(3) is part of a broader trend in liberal jurisprudence to confine specialized types of speech to specialized speakers. The effect is to treat speakers as only fractions of persons with only fractions of their First Amendment rights. The government thereby fragments the interests of the people in their rights and undermines the structural protection for rights that comes when all persons have an equal claim to rights and thus an equal interest in defending them. Chapter 17 shows that the divisions have come with demands for homogenization. At the same time that section 501(c)(3) has contributed to the division of Americans and their First Amendment rights, government has increasingly been asked—not least by liberals—to homogenize public opinion. And section 501(c)(3) itself has had an homogenizing effect by discriminating against the political expression of some types of outlying beliefs.

18 / Introduction

Finally, moving beyond section 501(c)(3), chapter 18 considers other liberal restrictions on speech. Current speech restrictions often seem unconnected to each other. Academic speech and harassment codes are said to reflect political correctness. Federal restrictions on corporate speech allegedly remedy the crowding out of other political speech. As for the licensing by Institutional Review Boards of speech in or about human-subjects research, it is depicted as an ethical reaction to the danger from researchers who are led astray by curiosity or money. And so forth. Considered functionally, the restrictions seem too diverse to have much in common. Nonetheless, amid a swelling wave of speech restrictions, it is odd that each sort is understood on its own rather than as part of a common development. Of course, demands for suppression have come from many directions, not all of them liberal; but in a liberal society, it is no surprise that there has been increasing liberal suppression of speech. The point is not that there is any concerted liberal attempt to suppress speech, but rather that many speech restrictions have arisen from shared liberal anxieties. When examined against the background of liberalism as it developed over the last two centuries, numerous contemporary speech limits turn out to be manifestations of expanding liberal anxieties for the mental freedom or well-being of individuals or, more broadly, for the “democratic” character of the nation. From this perspective, many types of organized or group speech, and dogmatic or opprobrious speech, have seemed so dangerous as to merit public constraint. Section 501(c)(3) thus illuminates a sort of suppression that can be observed across the spectrum of contemporary speech restrictions. And as already suggested, it is a sort of suppression that fractures Americans and their rights and that homogenizes public opinion—that divides and subdues.

Religion and the Polity Along the way, there will be occasion to observe the costs for religion and the polity. Although these losses are difficult to evaluate, they clearly are profound. The implications for traditional religion are sobering. For example, it often is said that religion, especially in its traditional modes, is in retreat, and it is suggested that this is a natural response to reason, science, and modernity—a response, that is, to religion’s own failings. The truth of this thesis need not be explored here, but even if it is partly true, it must be added that the retreat of religion from public life has been accelerated by law. Most centrally here, section 501(c)(3) has excluded much religion from

Introduction / 19

public life by denying churches and related idealistic associations the ordinary rights of petitioning and political speech. As with some of the other legal assaults upon religion, the underlying animosity comes from theological and broader forms of liberalism. Put bluntly, institutionalized liberal prejudice, in the form of section 501(c)(3)’s discrimination against ecclesiastical speech in politics, has sidelined churches from much active participation in the nation’s public life—thereby limiting their ability to protect their liberty and marginalizing them even in the minds of many of their adherents. On the other side of the equation, the polity has also suffered. The shift from theology to ideology and the liberal suppression of the political speech of idealistic organizations, especially churches, has left moral opinion, and thus public opinion, largely without a strong anchor independent of government. And the theological loss has obvious structural costs for liberty. Whatever the failings of traditional American religion, it at least had a profound role in preserving a source of authority apart from the demos and its government, and what else can serve this function remains disturbingly unclear.

( Four broad inquiries—about liberalism, demands for suppression, the unconstitutionality, and the dangers of dividing and subduing—thus arise from a narrow tax provision. The overall effect is to question more than a century’s worth of liberal prejudice in theology, tax, speech restrictions, constitutional law, and political theory. Magnum in parvo.

ONE

Conceptual Foundations

This chapter lays out some basic conceptual assumptions. Section 501(c) (3) and its history are plagued by a host of preconceptions. Chapter 1 therefore takes note of some of these presuppositions, so as to explain why they should not become stumbling blocks. There are enough real obstacles to understanding section 501(c)(3), and there is no need for the path ahead to seem more steep and rocky than it is.

Anxiety, Prejudice, and Oppression, but Not Necessarily Intent Prejudice and oppression are often assumed to arise from deliberate animosity, and on this narrow understanding, it may seem odd to associate suppression with liberalism. Much prejudice and oppression, however, is not intended in any strong sense, but rather develops in response to underlying anxieties. On these assumptions, this book explores the anxieties or fears that underlay the support for section 501(c)(3)’s speech restrictions. It thereby becomes possible to understand how so many Americans welcomed an assault on freedom of speech that they might otherwise have found repugnant. Americans who supported section 501(c)(3)’s speech restrictions assumed not that they were suppressing speech but rather that they were protecting individual mental freedom and preserving democracy. They were thus entirely high-minded about what they were doing. Far from making the suppression less serious, however, this elevated gloss made it more appealing and thus more difficult to resist. Bad intent is therefore not part of this story. When this book speaks of liberal animosities, anxieties, and prejudices, and when it talks about the resulting suppression, segregation, exclusion, and other oppression, read-

22 / Chapter One

ers should not assume it is suggesting anything self-consciously prejudiced or intended to be oppressive, let alone any conspiracy. For some, the suppression may have been self-conscious or intended, but on the whole, the problem has been very different.

Theology and Ideology To understand the intellectual and cultural history of the United States, one must recognize the link between theology and ideology, including the connection between theological liberalism and the more general cultural and political sorts of liberalism that are familiar today. The place of theology in the development of contemporary American thought is one of the great untold stories of American life, and this book will suggest how nineteenthcentury theology became the foundation of much twentieth-century law, politics, and political theory. For now, it is enough simply to draw attention to the link between theology and ideology—in particular, between theological liberalism and the cultural and political versions. Readers familiar with contemporary liberalism may be discomforted by the connection, but it is borne out by evidence from over two centuries, during which Americans have not so much abandoned theological ideas as realigned them. This is not to say that contemporary liberalism typically involves any positive theological commitment. But much theological liberalism has centered on fears of ecclesiastical organizations and their speech, and such fears have often appealed to utterly nonreligious liberals. On this basis, readers should not be surprised to find that theology looms large in the history of liberal ideas or that the theological and nontheological elements are so intertwined that they often are difficult to tease apart. This book, indeed, occasionally refers to the theo-political character of the liberal suppression, as this succinctly captures the history and current reality, in which theologically liberal assumptions remain potent not far below the surface of cultural and political versions of liberalism. The theology and the ideology must be studied together.

Varieties of Liberalism Liberal sentiments have been pursued along different trajectories, even to the extent of evolving into different types of liberalism, and there is a risk that these varieties will not be sufficiently distinguished by readers. Therefore, to avoid confusion, it is important to sort out the basic differences

Conceptual Foundations / 23

among general, theological, economic, cultural, and political liberalism. And this is just the beginning, for each type encompassed a range of views. General, Theological, Economic, Cultural, and Political Underlying the full range of liberal ideas were some general feelings or sentiments that in eighteenth-century England and America came to be identified as “liberal.” When men adopted views that rose above narrow prejudices and interests, they often said generally that they had “liberal sentiments,” and it was no accident (as will be seen) that these feelings were of the free, open, and generous sort that might be expected of a gentleman. These liberal sentiments could be deployed to assert freedom against all sorts of constraints, and they therefore could seem relevant in a host of circumstances, including the theological, economic, cultural, and political.1 Theological liberalism was based on Protestant fears about ecclesiastical threats to the mental independence of individuals. From this perspective, church organizations, their clergy, their creeds, and even their authoritative voice, dogma, and harsh tone tended to overawe individuals and thereby deprive them of their capacity to think or judge for themselves. Ecclesiastical speech thus seemed to threaten the individual mental autonomy that Protestants considered essential for faith and salvation. For Americans with nativist tendencies, these liberal attitudes cut mostly against the Catholic Church, but for growing numbers of Americans, theological liberalism reached further, calling into doubt all Christian divisions and even all distinct religious affiliations. And of course, theological liberalism could appeal to persons who were not particularly religious—even those who were antireligious—because it was not always simply a religious belief but instead could be a Protestant-derived fear of organized religion and the sort of speech associated with it. Growing up alongside the theologically liberal fears of churches were similar fears of business corporations. Economic liberalism is often understood as a theory of economic freedom. It will be seen, however, that there also was another sort of economic liberalism, which developed among theological liberals, but with a fear not only of churches but also of business corporations. Both of these economic visions were called “liberal,” but of particular interest in this book is the theologically inspired liberal fear of corporations. Theological liberalism eventually became the foundation for a more generally cultural liberalism, in which individuality and independent thought were valued in opposition to all dogma, whether religious or ideological.

24 / Chapter One

From this perspective, many educators assumed that their task was to teach students not what to think but how to think—independent thinking or mental judgment being how an individual preserved his individuality. Thus, what began as the mental independence necessary for faith and salvation in the next world became the intellectual independence essential for an individual to achieve his potential in this world. Sometimes allied with theological and cultural liberalism was political liberalism, and already in the eighteenth century, liberalism could have conflicting implications for government. On the one hand, a government was apt to be considered liberal if it was accountable to the people and limited by legal rights; on the other hand, the federal government was said to be liberal in the 1780s because it would be energetic and powerful enough to defeat the local prejudices and interests of the states. In the wake of the French Revolution, nineteenth- century Americans tended to confine their liberalism to the theological realm, and thus for a while the political expressions of liberalism remained subdued in America. Eventually, however, especially in the twentieth century, political liberalism reemerged and flourished in the United States—again with both limiting and empowering implications for government. Although political liberalism often appealed to theological liberals, it attracted many others independently of theological concerns. Even so, as will be seen, twentieth-century political liberalism often drew upon theologically liberal concerns, including theo-political anxieties about ecclesiastical and other group speech.2 Of least significance for this book is the colloquial use of “liberal” as a twentieth-century label for the political left. Even this political usage, however, is valuable in its recognition of the degree to which the left is liberal. For example, the left is politically liberal in its concerns about government, theologically liberal in its worries about ecclesiastical organizations, and economically liberal in its fears of corporations. All of these different expressions of liberalism could be allied with each other, and in this way liberalism tended to unite many Americans who were not entirely in accord. At the same time, there were divisions. For example, the 1928 and 1960 presidential elections sharpened the divergence between political liberalism and the theological liberalism that sometimes took aim at the Catholic Church. Many Americans who were politically liberal were also theologically liberal. But whereas some Americans were more committed to their theologically liberal fears of Catholicism and therefore were unwilling to vote for a Catholic presidential candidate, others were more committed to their political liberalism than fearful of the Catholic Church

Conceptual Foundations / 25

and therefore were content to vote for a Catholic. On the whole, theological liberalism was allied with political liberalism, but not always. Indeed, the range of liberalism discussed in this book so permeated American life that it often transcended narrow religious and political affiliations. Many Republicans, for example, were theologically, culturally, and even loosely politically liberal, and it therefore should be no surprise to find that Republicans accepted and even espoused section 501(c)(3)’s speech restrictions. And the same was true of many leftists who thought liberalism did not go far enough. Liberalism, in other words, was a profoundly appealing mode of thinking, which reached to different degrees through much of America. Overspecificity and Its Dangers For the sake of clarity, this book tries, where it can, to specify which sort of liberalism it is discussing. The overlap among the different types, however, means that it often would be misleadingly narrow to speak of theological, cultural, or political liberalism—let alone to speak of anti-Catholic liberalism. Among most theological liberals, for example, although the Catholic Church was the model of the ecclesiastical threat to mental independence, the danger also seemed to come from traditional Protestant churches. Indeed, according to relatively radical theological liberals, the threat to individuals came from all religious organizations and even all distinct religions. This book therefore does not suggest that all theological liberals were merely anti-Catholic, even though many were fervent opponents of the Church of Rome. The danger of being too specific about the different types of liberalism can also be observed in connection with the Ku Klux Klan—that is, the Klan that flourished during the 1920s. At first, it may seem odd to speak about the Klan’s liberalism, but theological liberalism underlay much of the Klan’s anti-Catholicism. In the Klan, moreover, theologically liberal attitudes about religion often blended into culturally liberal attitudes about the human mind and about education, and there often were politically liberal implications—interestingly, about equality, desegregation, and the need for federal power over education. Thus, although the Klan’s liberalism was primarily theological, it also could reach much further. Amid the overlapping and connected types of liberalism, it is difficult to be both specific and open to the breadth of possibilities. This book does its

26 / Chapter One

best to have the best of both worlds. It tries to be as specific as possible about particular versions of liberalism, but where the liberalism was broader, it often speaks in general terms about liberal ideas, in the hope that context will provide the clarity that an excessively narrow label cannot.

Ideas and Identity It should always be kept in mind, whether as to liberalism or other perspectives, that few persons are so attached to any one idea as to make it their identity in all circumstances. Put another way, an ideal is rarely a full measure of identity. For example, many of those who considered themselves liberal in some circumstances did not think themselves liberal in others contexts. And some who felt liberal anxieties did not ordinarily identify themselves as liberal. Accordingly, when this book speaks of liberals, nativists, and others, it should be understood that this is merely a shorthand way of speaking about Americans who adopted these modes of thinking in situations relevant to this book. The convenience of this mode of talking about people is considerable—as long as it is understood that few persons, if any, were exclusively or merely liberal, nativist, and so forth.

Reconsidering Some Foundational Ideas By now it should be clear that this book asks readers to reconsider some key American intellectual developments, including liberalism, nativism, and the veneration of democracy. At first, its account of these developments may seem disconcerting, but once they are understood, they should be all the more interesting. Reconsidering Liberalism The continuity and range of American liberalism, as presented in this book, may seem unexpected. It is commonly assumed that twentieth-century liberalism scarcely has a prior history in the United States. It even is widely assumed that liberalism is so close to enlightened philosophy that it rises above narrow interests and prejudices and thus nearly floats above the sordid details of history. Certainly, if one traces the genealogy of liberalism from John Stuart Mill to John Rawls—at least if one examines their most famous works, without considering their personal lives—liberalism looks distinctively “secular”

Conceptual Foundations / 27

and philosophical. It thus appears religiously neutral. And in rising above religious commitments, it apparently enjoys the authority of disinterested reason and evidently establishes broad, even universalistic implications. Liberalism, however, has a history, and its history in American culture reveals a liberalism that is not primarily secular or philosophical or otherwise particularly sanitary. John Stuart Mill wrote in the context of theological liberalism, especially as espoused by William Channing, and John Rawls wrote in the context of twentieth-century American theological liberalism—a liberalism modified by the anxieties of nativists, including the Ku Klux Klan. By the same token, the liberal demands that churches suppress themselves came from persons more diverse than are ordinarily recognized as liberal. In fact, the most prominent person to propose both legal restrictions of the sort eventually adopted in section 501(c)(3) was Hiram Evans—imperial wizard of the Klan. Subsequently, the most notable person to delegitimize the speech of ecclesiastical and other organizations in politics, even if not to bar it by law, was John Rawls. The point is absolutely not to claim a connection between Evans and Rawls or otherwise to pin a donkey’s tail on an elegant philosopher, but rather to understand that liberalism and its critiques of private speech had a breadth and depth in American society that are often missed when one focuses merely on liberal philosophers. At first it may seem shocking, even slanderous, to suggest that both Evans and Rawls self-consciously identified as liberal and shared some basic liberal assumptions, not all of which were entirely open and tolerant. Nothing, however, better reveals the role of liberal ideas across a wide range of American life, often below the elevated realm of academic philosophy. Section 501(c)(3) and its suppression of speech will thus require readers to reconsider the character of American liberalism. Liberalism has a long and varied history in the United States, running from the mid-eighteenth century until the present, and the development of liberalism over the past centuries has introduced changes in American life that resist simple moral classification. Liberal sentiments have overturned much of American theology, politics, and culture—sometimes for good, and sometimes for ill. The mixed history of liberalism is not entirely unknown. The early development of liberalism in the eighteenth century, and its expression in ideas about separation of church and state, has occupied some of my scholarship. And John McGreevy has explored the role of anti-Catholicism in defining the terms of mid- twentieth- century liberalism. The history of liberalism, however, has not enjoyed much attention from liberals, who have shied away from recognizing the continuities, whether between eighteenth- and

28 / Chapter One

twentieth-century liberalism, between theological and political liberalism, or between nativism and liberal democratic ideals.3 The failure of many scholars, whether liberal or not, to wrestle with the complex history of liberalism is an astonishing lacunae. In looking back, some historians selectively highlight appealing elements of liberalism, but this is the worst sort of Whig history, which reshapes the past to justify the present. Liberalism has contributed to much of the best of American culture; but like most other important phenomena, it has not uniformly been a blessing, and it is time for a serious recognition of the diversity and mixed character of nineteenth- and twentieth-century American liberalism.4 At the risk of repetition, it must be emphasized that although this book focuses on a dismal side of American liberalism, this is not to say that liberalism was entirely dark. My own scholarship (especially my study of eighteenth-century liberality) has shown how liberalism was often a blessing. Nor is it proposed that liberalism was distinctively aggressive or prejudiced. Across the centuries, many orthodoxies have had their own grim histories, and the liberal threat to speech has come in the wake of all sorts of orthodox threats. Nonetheless, it is difficult to avoid recognizing the growing danger to speech from liberalism. Liberals (ranging from theologians to Supreme Court justices) have long decried the danger from various orthodoxies—whether Catholic, Protestant, or otherwise—but there is also a danger from liberalism and its antiorthodox attitudes.5 A sober reconsideration of liberalism is therefore long overdue. Liberalism has not been entirely “secular,” neutral, or philosophic, and although it has often been a mode of challenging oppression, it also, as illustrated by section 501(c)(3), has been oppressive. Section 501(c)(3) therefore is a valuable pathway, for it offers an unusually concrete avenue for understanding the motley character of what usually is understood in a much more abstract, even philosophic manner. It may seem peculiar to suggest the illuminating quality of a subsection of the tax code, but not when one learns how the section developed amid liberal anxieties. A revenue subsection thus illuminates an unexplored side of American liberalism, and in revealing the often unhygienic qualities of liberalism as it existed on the ground, the section also suggests much about the allegedly more salubrious liberalism that is often assumed to float above in the philosophic clouds.

Conceptual Foundations / 29

Reconsidering Nativism Along with liberalism, this book explores nativism, and this term may require some explanation. The term “nativist,” when taken literally, is associated with hostility toward immigrants and their ideas. But this is not its only significance. Although nativists were native-born Americans who feared Catholic immigration, they more generally worried about all adherents of the Catholic Church—on the theologically liberal theory that this organization’s claims of ecclesiastical authority threatened intellectual independence. At risk, from this perspective, was not only the mental freedom necessary for faith and salvation but also the independent political judgment requisite among the citizens of a democracy. Nativism thus adopted a theologically liberal stance against the Catholic Church and soon gave theological liberalism a “democratic” political twist. It therefore would be a mistake to view nativism as merely a response to foreigners. It must also be understood as an expression of theologically liberal fears and as the avenue by which such fears became the basis of the nativist vision of what it was to be American. By insisting on the personal and political freedom of individuals from the Catholic Church, nativists envisioned the individual citizen as standing alone in relation to government; and in their opposition to the Church, they nearly idolized the American nation. Of course, when meeting in their fraternal organizations, they did not act or think so individualistically, but in their assaults on Catholicism, they envisioned a democracy of individuals and thereby reduced the nation’s republican form of government to a popular democracy. And by elevating “Americanism” in opposition to Catholicism, they flattened out the distinction between the states and the federal government. Their theologically liberal stance against the Catholic Church thereby became a series of demands for a sort of theo-political conformity. Readers should therefore not be surprised that this book associates nativism not merely with anti-foreign sentiment but more broadly with theological liberalism. Nor should they be surprised that nativism, including its exaggerated ideals of Americanism and democracy soon permeated much liberal thought. To understand twentieth- century liberal ideals and their limited tolerance for ecclesiastical and other orthodoxies, one must explore the underlying role of nativism in reshaping liberalism.

30 / Chapter One

Reconsidering Democracy and Liberal Political Theory Readers who are accustomed to thinking of the United States as a democracy, and who value the liberal political theory that celebrates American democracy, may be puzzled by this book. Obviously, the United States is not a democracy but a republic—a complex federal republic—in which constitutional structures and rights protect minorities from majorities. Nonetheless, many Americans assume that the nation is fundamentally a democracy, and in accord with such sentiment, much contemporary liberal political theory, from that of John Rawls to that of Robert Dahl, expounds democratic values. Readers may therefore initially be troubled to learn that the reconception of the United States as a democracy has come with the suppression of some minority opinion and the reimagining of speech rights in majoritarian terms. It should hardly be unexpected, however, that the ideal of democracy elevates majority power over minority rights or that it conflicts with constitutional ideals. Section 501(c)(3) is surely not the only instance of how minorities have had their constitutional rights abridged in the name of the demos.

The Seriousness of the Problem Some readers may doubt the seriousness of section 501(c)(3)’s suppression. Giving substance to such reservations, they may observe that the suppression is moderated by marginal economic pressures for compliance, by weak enforcement, and by alternative avenues for speech. These ameliorating circumstances, however, are not as reassuring as they may initially sound, and the suppression therefore remains very real. To be sure, there are worse sorts of suppression, but that is no excuse for this sort. Marginal Economic Pressures and Minimal Enforcement From an economic perspective, it may seem comforting that the tax code places only marginal economic pressures on many nonprofits. Numerous idealistic organizations earn only a minimal amount of income and therefore do not gain much from section 501’s exemption from income tax. Many, moreover, receive only minimal amounts in donations, or only minimal amounts from donors who seek to deduct their gifts, and such organizations benefit only slightly from section 170’s deductibility. One might therefore leap to the conclusion that many idealistic organizations face only marginal

Conceptual Foundations / 31

economic pressures to comply with the speech restrictions in sections 501(c) (3) and 170(c), and that the restrictions have little effect on speech. The economic pressures, however, are not entirely marginal. Federal exemptions for idealistic organizations, and federal deductions for contributions to them, amount to many billions of dollars annually. And although the financial pressures for some organizations are marginal, the pressures for others are clearly substantial.6 Even when one focuses on idealistic organizations with little exempt income, and with few donors who itemize deductions, it is a mistake to confuse economic consequences with speech consequences. Most idealistic organizations operate close to the edge of what they can afford, and many are therefore sensitive to relatively small economic pressures. Accordingly, even many organizations that do not have much at stake in their exemptions and deductions try to qualify under sections 501(c)(3) and 170 and tend to trim their speech in response to the restrictions. Most, moreover, look beyond the immediate economic pressures; they recognize that if they lose their section 501(c)(3) status, they will forfeit not only their tax advantages but also their reputation. For multiple reasons, therefore, it is an error to assume that the pressures are only marginal or that, where they are marginal, they have only negligible suppressive effects. The point about weak enforcement similarly seems plausible at first glance. After an organization qualifies for nonprofit status, the IRS does not always enforce the restrictions in sections 501(c)(3) and 170(c). Put another way, the IRS systematically imposes its views at the decision letter stage, and after that, most of the suppression arises from a fear of the IRS rather than any specific deterrence. This does not mean, however, that the enforcement is weak. The IRS has been quite vigorous at the decision letter stage, and it dexterously uses selective subsequent enforcement against a small number of organizations to get the attention of the myriad others. Although there is limited data on compliance, the vast majority of idealistic organizations more or less comply. Some are bold and sophisticated enough to understand that they can go far before the IRS will intervene and therefore stretch the limits without much sense of fear. Others are more timid or unsophisticated and therefore fastidiously constrain themselves. Brazen and regular noncompliance, however, is rare. To be sure, some churches flaunt the speech restrictions in protest, but tellingly this tends to happen only once a year—on “Pulpit Freedom Sunday.” And (as shown by a 2004 IRS study discussed in chapter 9) even when noncompliant idealistic organizations are merely informed of IRS interpretations of the speech restrictions, the organizations

32 / Chapter One

tend to fall in line. In fact, a Pew survey during the height of the 2016 presidential campaign concluded: “Few hear clergy speak out about candidates.” The economic and enforcement pressures are thus not as weak as may be imagined, and the suppressive effects, although incomplete, appear to be significant.7 But this is not all, for the economic and enforcement excuses misunderstand constitutional law. Imagine an argument that the Alien and Sedition Acts were not a dangerous or serious constitutional problem because they were enforced against only a small number of persons, thus leaving most Americans unaffected! Imagine an argument that McCarthyism had little suppressive effect because most communists and fellow travelers were not fired or hauled before a congressional committee, or because those who were threatened could avoid losing their jobs simply by cooperating! If the speech restrictions in sections 501(c)(3) and 170(c) were enforced in violation of the First Amendment rights of only one idealistic organization, they would still be grossly unconstitutional. And even without any enforcement pressures, the mere existence of a law that chills expression is considered a serious abridgment of the freedom of speech. The economic and enforcement counterarguments thus are not only wrong but also inapposite, for they fail to recognize what is required by the Constitution. Alternative Paths for Speech Although idealistic organizations are subject to section 501(c)(3)’s severe restrictions on political speech, they can rely on other entities—notably, section 501(c)(4) organizations and section 527 political action committees—to get their message out. The overall speech effects of section 501(c) (3) on speech may therefore appear minimal, and it may thus seem that the “suppression” scarcely deserves that name. This conclusion, however, rests on a series of misconceptions (as will be hinted here and more fully in chapter 12). The soothing view that the alternative pathways for speech deprive the suppression of its bite depends on the illusion that the alternative paths are adequate substitutes. In fact, the alternatives are subject to their own speech restrictions. And even if they were not, the reality is that a memorandum issued by an IRS-compliant committee of church leaders cannot be as vigorous and empowering as the harmonized voices of the congregation itself. The effect of speech notoriously depends not only on words but also on spontaneity, identity, and voice, and the alternative avenues for speech are thus very poor substitutes.

Conceptual Foundations / 33

But suppose that the alternative paths were (by some miracle) a rough substitute; still, the view that they avoid the suppression makes the mistake of focusing on the total amount of speech rather than the suppression of some speakers. Even if the total amount of speech from an idealistic point of view remains constant, this does not mean that the suppression of idealistic organizations is any less severe. On the contrary, the very fact that such organizations must turn to other types of organizations to engage in political speech confirms the degree to which the idealistic organizations themselves are suppressed. In constitutional terms, the First Amendment does not guarantee some total amount of speech from one’s point of view but rather the freedom of speech—the freedom to speak regardless of the government’s evaluation that one’s opinion is adequately expressed by others. The government thus cannot pick and choose political speakers—suppressing some on the theory that they can rely on others to speak for them. In personal terms, imagine having one’s mouth taped shut and then being reassured that this is not problematic because equivalent words will emerge from someone else’s mouth. The suppression therefore needs to be taken very seriously. To be sure, idealistic organizations can compensate for their loss by working through other organizations, and this certainly puts them in a better position than they would be if they were entirely silenced. This does not, however, mask the reality that they are severely suppressed in their own political speech—in their ability to speak for themselves, in their own voice. Even If Not Typically Deep, Still Discriminatory and Broad But what if one were concerned more about the overall effect on messaging by idealistic organizations than about the suppression of some speakers? From this point of view, one might surmise that the suppression probably does not ordinarily cut very deep—that even if some particular organizations feel the pain, most of them can still communicate their messages effectively. Unfortunately, there are limited empirical data on the effects of section 501(c)(3)’s speech restrictions—partly because the effects are difficult to measure, and partly because it is difficult to find a suitable control group. Therefore, until reliable data are brought to bear on the subject, any reassuring conclusion that the loss of messaging is minimal cannot be much more than speculation. Some conclusions, however, are clear. Although the speech restrictions

34 / Chapter One

do not bar idealistic organizations from generally expressing their views about legislation and elections, they limit campaigning for or against candidates and substantial attempts to influence legislation. The restrictions thereby confine the most direct attempts to influence voters and legislators. They affect almost all idealistic organizations in central types of political speech. Although idealistic organizations can emit messages through section 501(c)(4) organizations and section 527 political action committees, they still are hindered in their speech. As already noted, idealistic organizations cannot directly control the speech of their affiliates, their affiliates are subject to their own speech restrictions, and this indirect mode of communication deprives their speech of its spontaneity, authenticity, and distinctive expression. Thus, when idealistic organizations must speak through an IRS-devised contraption, their voices inevitably are muffled, and the sheer breadth of this dampening down of speech is more than sufficiently worrisome. It will later become apparent, moreover, that section 501(c)(3)’s speech restrictions have disproportionate costs for some Americans. The restrictions appear to bear down hard on at least some of the relatively orthodox, who often feel obliged to work through their churches. And the restrictions limit the ability of the poor to speak through their own idealistic organizations, for it can be complicated and expensive to get a determination letter from the IRS and to set up a section 501(c)(4) affiliate and a section 527 political action committee. Thus, even if the suppression does not slice deeply into the overall messaging of idealistic organizations, it has discriminatory effects and apparently cuts sharply into some speech.a In short, even if the suppression only mildly affects the total messaging of idealistic organizations, it alters how such organizations, as a whole, contribute to political contests. And even if it is discriminatory merely in limiting the ability of the poor to be heard in their own voices, or in burdening a small number of the orthodox, it limits the range of voices heard in public debate. Thus, notwithstanding that one may be more concerned about overall messaging than about any one organization’s freedom to speak, the suppression is sobering.

a. Unlike other idealistic organizations, churches can qualify for section 501(c)(3) status without applying to the IRS, but even they (as explained in chapter 10) often find it a practical necessity to obtain IRS recognition and a determination letter.

Conceptual Foundations / 35

Calibrating the Problem To get a clearer sense of the seriousness of the problem, one can calibrate section 501(c)(3)’s speech restrictions against other examples of suppression. Readers thereby should become hesitant about either overstating or dismissing this book’s conclusions. By the standards of European, African, and Asian history, section 501(c) (3)’s suppression is small potatoes. By American standards, however, it is very serious. In the United States, the section’s restriction on all election speech and any substantial lobbying by almost all idealistic organizations stands out as an unusually sweeping attack on political speech. The primary American landmarks for the suppression of speech are the Alien and Sedition Acts in the founding era and McCarthyism in the 1950s. Both were in many respects more serious than section 501(c)(3), for they focused more narrowly on particular political opinions, and they came with harsher personal consequences. Section 501(c)(3), in contrast, may seem anodyne. Nonetheless, in administratively taking aim at all election speech and any substantial lobbying by vast numbers of churches and other idealistic organizations, it reaches a much broader range of speech and is categorically applicable to a much broader array of speakers than the prior landmarks of suppression. Of course, this book does not aim to show that section 501(c)(3)’s restrictions are worse than the Alien and Sedition Acts or McCarthyism. That would be, at best, an adolescent exercise. Rather, the point is simply that section 501(c)(3)’s restrictions are serious. Another mode of calibration is constitutional. Freedom of speech, petitioning, and religion are fundamentals of American constitutional law, which are understood to be violated even by a single abridgment of the most offensive speech. For example, the Supreme Court has been much lauded for protecting the speech rights of Nazis marching through Skokie, Illinois. In this context, section 501(c)(3)’s broad restrictions on the petitioning, political speech, and religious liberty of idealistic organizations look more than passing strange. The restrictions are a striking departure from the usual expectations. One can confirm this conclusion by comparing section 501(c)(3)’s restrictions with some hypothetical speech restrictions. Imagine that the federal government used conditions on benefits to universities to impose section 501(c)(3)’s restrictions on professors or used conditions on student loans to impose the restrictions on students. These assaults on speech, even if framed only as conditions on spending, and even if only partially en-

36 / Chapter One

forced, would rightly be viewed as profound threats to American liberty and the nature of American society. There would be no hesitation in condemning the restrictions as suppression. Hence, this book’s use of strong words, such as “suppression” and “silencing”—even “segregation” and “exclusion.” The point is not that churches and other idealistic organizations are entirely suppressed, silenced, etc., but that the law asks them to stifle themselves in ways that, by First Amendment standards, are commonly understood to amount to suppressing, silencing, etc. This book’s concerns should therefore be neither overstated nor dismissed. Although not the most egregious sort of suppression, the restrictions are, in the American context, more than bad enough.

Whether Idealistic Organizations Should Speak in Politics Last but not least, nothing in this book should be understood to suggest that idealistic associations should typically speak on political matters. The book argues that they have a full constitutional right to political speech, but this does not mean they always or even regularly should exercise this right. Put abstractly, a study of the constitutional right is very different from an investigation into what is right, and neither inquiry necessarily implies the answer to the other. Of course, individuals and business organizations should also think twice about what they say. But idealistic organizations stand out. Churches and other idealistic organizations tend to speak in heightened tones and with great confidence about right and wrong, and at times this can be desirable. In many instances, however, their leaders live sheltered lives and espouse ideals without adequately understanding the scientific, economic, and other practical realities. Indeed, many idealistic organizations have taken views that may reasonably be considered not merely incorrect but downright immoral and even evil. The free speech of idealistic organizations therefore cannot rest on the assumption that their speech is ideal. Instead, what matters are the rights guaranteed by the Constitution and their structural value.

( Such are some of the ways in which this book’s arguments may seem unexpected. Hopefully, after this chapter, they will not be misunderstood.

T WO

Idealistic Organizations in Politics

Did idealistic organizations in the United States historically enjoy a freedom to speak in politics? And what has been the structural role of their speech in limiting government? Conventionally, inquiries about the political speech of idealistic organizations have emphasized their moral contribution and have even portrayed churches as the conscience of the nation. In contrast, this chapter makes a less moralizing and more institutional argument. It observes that idealistic organizations once enjoyed a full freedom of political speech and that they often participated vigorously in elections and influencing legislation. On this foundation, the chapter suggests that idealistic organizations once tended to shape public opinion independently of government, and thus in a way that could limit it.

The Traditional Political Role of Churches Although the argument here concerns all sorts of idealistic organizations, churches can serve as an illustration. These organizations traditionally enjoyed a full freedom of political speech, and in at least some of the controversies that most clearly protected liberty in the United States (the Revolution, the fight for religious liberty, the struggle against slavery, and the civil rights movement), the speech of churches was crucial for shaping public opinion independently of government. Churches did not always adopt admirable positions in politics. Many took the wrong side in the debates discussed here. And in other debates, many advocated questionable legal restrictions on personal conduct. But as already hinted, the point is structural. Churches contributed to public opinion independently of government, and thus, in at least some of the na-

40 / Chapter Two

tion’s movements that most clearly protected liberty, the speech of churches was essential. The Revolution Churches and their ministers played a key role in the politics of the Revolution. Many Anglican ministers argued that America should remain loyal to Britain. Many other clergy, however, especially Congregationalists, Presbyterians, and Baptists, developed public opinion in ways that laid the foundation for both revolution and republican government. During the Revolution, patriotic clergy were often the mainstay of the American cause. Both North and South, many espoused resistance to tyranny. The Reverend Samuel West, for example, preached in 1776 that “magistrates have no authority but what they derive from the people.” Accordingly, “whenever they act contrary to the public good, and pursue measures destructive of the peace and safety of the community, they forfeit their right to govern the people.”1 At the same time, ministers also preached obedience. West explained that, although magistrates were to consider themselves as “servants of the people,” they also were “ministers of God ordained by him for the good of mankind.” It thus was possible to “see the reason why we are bound to obey the magistrate”—at least, that is, when “a people have by their free consent conferred upon a number of men a power to rule and govern them.” Then they were “bound to obey them.” With such sentiments, ministers did much to form the opinion that would undergird the new republic.2 Religious Liberty In the eighteenth- century campaigns to secure religious liberty, the indispensable arguments came, naturally, from clergymen, churches, and their members. Some ministers, notably Congregationalists in New England and Anglicans in the South, defended their religious establishments. They usually justified them as tolerant establishments—meaning a combination of freedom for dissenting denominations and establishment for their own. Far from being crudely selfish, such ministers often spoke with sociological sophistication about the value of an established church for the preservation of religion, morality, and government. Most denominations, however, were dissatisfied with existing arrangements. Quakers meetings and their representatives regularly spoke out for

Idealistic Organizations in Politics / 41

a freedom from military service and against paying an equivalent for it, and they assiduously petitioned and otherwise lobbied legislators for this freedom. Baptist churches and associations also organized for religious liberty, but, instead of exemptions, sought equality, whether in their own free exercise of religion or against an establishment of anyone else’s religion. In addition, Presbyterians were active—as when the Hanover Presbytery sent memorials to Virginia’s General Assembly against an establishment and for legislation allowing all ministers, not merely Anglican clergymen, to conduct marriages. Indeed, in 1785, what defeated the attempt to revive an establishment in Virginia was not so much James Madison’s Memorial and Remonstrance as the petitions and votes of Baptists, Presbyterians, and some liberal Anglicans.3 Baptist political participation is particularly illuminating, for Baptists are often assumed (mistakenly) to have advocated separation of church and state.4 In fact, it was organized Baptist pressure in the first federal election that turned Madison around on the question of a bill of rights. During the drafting and ratification of the Constitution, and even afterward, he and other prominent Federalists insisted that the Constitution’s enumeration of powers was sufficient to limit the new government and that an enumeration of rights was therefore unnecessary. Nonetheless, many other Americans still desired a bill of rights, and Baptists in particular worried about the absence of a guarantee for religious liberty. A leading Baptist preacher in Virginia, George Eve, pressed the question during the 1789 congressional election, and he thereby got Madison’s attention. Madison was running in Virginia for the House of Representatives and needed Baptist votes, and he therefore sent Eve a carefully phrased letter of support for a bill of rights. Now that the Constitution finally was ratified, the candidate explained, a bill of rights might give additional security for liberty and certainly would have the advantage of “satisfying the minds of well meaning opponents.” To this end, Madison assured Eve and other Baptists that “it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend to the states . . . provisions for all essential rights.” Organized Baptist pressure in the election thus spurred Madison to reconsider, and during the first Congress, he introduced what became the Bill of Rights.5 In these debates about religious liberty, religious organizations evidently campaigned and lobbied in ways that shaped public opinion independently of government. They thereby not only secured religious liberty but also, more broadly, obtained what became the federal Bill of Rights.

42 / Chapter Two

Slavery and Its Aftermath Religious associations made one of their most enduring political contributions on the question of slavery. Even sometimes where antislavery opinion was unpopular, many churches pressed Americans and their government to reject servitude. Although this religious campaign against slavery is aptly remembered for its moral significance, it simultaneously is the leading example of the structural point that idealistic organizations, especially churches, have espoused their ideals in public debates and have thereby developed independent public opinion in ways that limited government. In the 1770s and 1780s, Quaker meetings across the states repeatedly petitioned and lobbied government officials against human servitude. Even where slavery was deeply entrenched, such as in North Carolina and Virginia, Quaker meetings and their committees were active, and although they ultimately were not very successful, their arguments laid the foundation for the nineteenth-century antislavery movement.6 Anti- slavery churches were more successful in the nineteenth century, although only after a long struggle. When Congress in 1854 debated the Nebraska Bill, which eventually allowed white male settlers in Kansas and Nebraska to vote on whether to have slavery within these territories, Protestant ministers in New England and New York preached over 3,200 sermons against it in the space of only six weeks. More than 3,000 New England clergymen signed a memorial to Congress, presenting themselves to Congress as clergymen rather than as citizens and even presuming to speak “in the name of Almighty God.” They declared: The undersigned, clergymen of different religious denominations in New England, hereby, in the name of Almighty God, and in his presence, do solemnly protest against the passage of what is known as the Nebraska Bill, or any repeal or modification of the existing legal prohibitions of slavery in that part of our national domain which it is proposed to organize into the territories of Nebraska and Kansas. We protest against it as a great moral wrong, as a breach of faith eminently unjust to the moral principles of the community, and subversive of all confidence in national engagements; as a measure full of danger to the peace and even the existence of our beloved Union, and exposing us to the righteous judgments of the Almighty: and your protestants, as in duty bound, will ever pray.

Observing the prominent political role of Protestant ministers, one commentator concluded that “Protestant ministers may, in fact, be said to be at the head of the Abolition party in the North.”7

Idealistic Organizations in Politics / 43

As might be expected, some northern ministers, such as the midnineteenth-century Baptist William Richards, refused “to sanctify the clamors of the multitude shouting for partisan issues.” He expressed his own view on servitude with a quotation from William Cowper: He is a freeman whom truth makes free; And all are slaves beside.

Unsurprisingly, most other northern clergymen could not remain content with so inward a view of freedom and therefore could not remain silent.8 Many southern churches, far from being silent, loudly justified slavery, and the role of churches defending freedom may therefore be questioned. The point, however, is not that churches consistently were advocates for liberty but rather that, in the disputes that most clearly secured liberty, churches and their role in keeping public opinion independent of government were essential for limiting government. Even after the defeat of slavery, the role of churches and their ministers was particularly important for blacks. Without their ministers, blacks typically would have been without leadership. As the American National Baptist Convention explained in 1889, “Our political leaders are few, and even those we have cannot reach the people; therefore it becomes our duty to speak out upon all questions that affect our people socially and economically, as well as religiously.” And this was not merely a matter of convenience. A report on the state of the country, adopted by the 1898 National Baptist Convention, declared: “Christianity should have an opinion about all that pertains to the interest of man morally, intellectually and materially. It should give shape as far as may be consistent to the sentiment of a community, a State or a nation.”9 Both for blacks and for the nation, churches remained profoundly significant on racial questions—most clearly in the civil rights movement. The preeminent leader of the movement was not a politician but a clergyman, the Reverend Martin Luther King Jr., who preached equal rights and marched to Washington to share this gospel with Congress. But it was not only King. The depth of religious leadership is nicely captured by a list of some of the other speakers at the 1963 March on Washington: the Very Reverend Patrick O’Boyle, archbishop of Washington; Dr. Eugene Carson Blake, stated clerk of the United Presbyterian Church of the U.S.A.; Rabbi Uri Miller, president of the Synagogue Council of America; Mathew Ahmann, executive director of the National Catholic Conference for Interracial Justice; Rabbi Joachim Prinz, president of the American Jewish Congress. Such men and their reli-

44 / Chapter Two

gious associations formed much of the movement, and their religious message was indispensable in overcoming the depths of prejudice.10 Of course, churches have rarely been so clearly in the right. Many other churches obviously were not. Indeed, churches often go astray. Their contributions noted in this chapter, however, suggest that in at least some of the most important movements for freedom in the United States, churches have played an essential role in maintaining the independence of public opinion from government. Being devoted to ideals that stood apart from government, they could lead the nation along paths that did much to limit its oppression.

Preserving Public Opinion Independent of Government Although this chapter has already hinted at the importance of idealistic organizations in forming public opinion, it now must pursue this point more systematically. Religious and other idealistic associations play many valuable roles in American society. For example, they reconcile individual and communal life by allowing individuals to pursue their inward personal aspirations in outward communal ways. And this leads to a more political role of idealistic associations, that they provide avenues for individuals to join together and thereby act in effective ways to form public opinion independently of government. One understanding of the problem is as a loss of mediating institutions and their moral voice in opposition to the state. Richard Garnett explains about section 501(c)(3): “The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government’s claims and conduct.” Accurate as this may be, it is useful, in a book on the suppression of various forms of speech, to focus in addition on another aspect of the question—on the role of idealistic associations within a republican system of government in preserving the independence of public opinion and thus its capacity to limit government.11 This alternative angle on the role of churches and other idealistic organizations is particularly significant in the United States. In much traditional Continental thought, ecclesiastical institutions challenge government with an alternative vision of authority. In America, however, government has been directly responsive to the people through elections and other political engagement, and idealistic associations have had an acknowledged role within the political system as the means of shaping public opinion independently of government. From this perspective, although the speech and

Idealistic Organizations in Politics / 45

petitioning of idealistic organizations can still be understood as challenges to state authority from without, they more immediately can be considered an integral element of the nation’s republican system of government. Independent Public Opinion The role of private associations, notably churches and other idealistic associations, in sustaining public opinion independent of government was recognized long ago by Alexis de Tocqueville in his Democracy in America. After visiting the United States in the 1830s, this French aristocrat became the most thoughtful commentator on equality in American life, and he was perhaps most profound when observing the place of associations, especially churches, in overcoming the isolation of individuals in an egalitarian society. In his hands, American practice became political theory. In egalitarian circumstances, individuals stand alone in relation to government. Their equality cuts through any inherited class or other attachments, and they therefore are equally free but also very weak and vulnerable in relation to government. Thus, only by associating can they come to feel their strength as individuals, and only by this means can they, independently of government, create ways of thinking and living together. This means that individuals can enjoy intellectual independence from government, and can form independent views as a people, only by means of voluntary associations.12 From this perspective, the greater the equality of a people, the greater their need for associations, if they are to avoid the danger of tyranny. Although tyranny sounds like an improbable concern in a free and equal society, Tocqueville understood that this is precisely the sort of society in which at least a sort of tyranny—a soft populist tyranny—is apt to develop. The very isolation of individuals in a modernized egalitarian society renders them vulnerable to government—vulnerable not only to its laws but also its ability to affect the direction of public ideas.a a. Tocqueville hammered this point home by comparing democracies to aristocracies: When the members of an aristocratic community adopt a new opinion, or conceive a new sentiment, they give it a station, as it were, beside themselves, upon the lofty platform where they stand; and opinions or sentiments so conspicuous to the eyes of the multitude are easily introduced into the minds or hearts of all around. In democratic countries the governing power alone is naturally in a condition to act in this manner; but it is easy to see that its action is always inadequate, and often dangerous. A government can no more be competent to keep alive and to renew the circulation of opinions and feelings among a great people, than to manage all the specu-

46 / Chapter Two

Hence the political value of private associations. They not only allow individuals to protect their private interests and liberty but also give independence to public opinion. Through such associations, individuals can share and develop ideas, espouse them with vigor, and thereby establish public opinion independent of government. Obviously, idealistic associations have not been alone in preserving the independence of public opinion. Associations dedicated to selfish ends, such as the interests of business and labor, have also frequently asserted ideals and have thereby contributed to a diverse and independent public opinion, but they have tended to do so in line with their market interests. In contrast, idealistic associations allow individuals to pursue lines of thought and action more or less independently of both government and the market. This is especially true of religious associations. Churches, together with religious charities and schools, claim authority not merely from human beings but from God. Through these associations, therefore, individuals can elevate their understanding of themselves above power and money and can sustain public opinion in a manner that reaches beyond these narrow ends. Churches and related idealistic associations have therefore traditionally led the way in establishing public opinion independent of government, and they have often directly challenged the nation’s complacency and oppression. This Tocquevillian significance of churches has been fundamental for American life. For more than two centuries, it will be recalled, American clergy have participated in politics from the pulpit. From this vantage point, many preached in favor of the Revolution, in favor of the Bill of Rights and religious liberty, and against slavery and racism. Some, to be sure, were on the other side of these disputes. But without the involvement of the

lations of productive industry. No sooner does a government attempt to go beyond its political sphere and to enter upon this new track, than it exercises, even unintentionally, an insupportable tyranny; for a government can only dictate strict rules, the opinions which it favors are rigidly enforced, and it is never easy to discriminate between its advice and its commands. Worse still will be the case if the government really believes itself interested in preventing all circulation of ideas; it will then stand motionless, and oppressed by the heaviness of voluntary torpor. Governments, therefore, should not be the only active powers; associations ought, in democratic nations, to stand in lieu of those powerful private individuals whom the equality of conditions has swept away.* (N.B.: An asterisk at the close of a footnote means that citations can be found at the end of the book, preceding the endnotes for each chapter.)

Idealistic Organizations in Politics / 47

churches, the Revolution and the movements for religious freedom and racial equality would have been utterly enfeebled. Idealistic associations, especially churches, have thus enabled the people of the United States to move opinion along lines other than those espoused by government. In preserving Americans from becoming not only legally but also intellectually subject to government, these organizations have enabled Americans to preserve their freedom. Cutting Back on the Role of Idealistic Associations All of this, however, is at risk when the government, most directly through section 501(c)(3), suppresses the speech of idealistic associations. When these associations are stifled, the formation of public opinion independently of government becomes difficult, and this bodes ill for limits on government. It is common in the United States to assume that associations are tangential or even dangerous to individual freedom and political liberty. But there is reason to believe that associations of all kinds (including those in corporate form) are essential for allowing individuals, independently of government, to feel common cause with others and to express themselves effectively. Admittedly, the energy of churches and other idealistic associations can seem irksome to politicians and politically oriented Americans who do not want to be held accountable to the most elevated ideals of their countrymen. Nor is this surprising. The aspirations of idealistic associations tend to be especially threatening to Americans who have collapsed their personal passions or their identity into the vortex of politics. For such Americans, it seems only natural that religious and other idealistic organizations should be confined to their own sphere, understood as distinct from politics. Yet this would deny the breadth of religious, cultural, and political experience in America. Most importantly here, it would cut off politics from the religious and cultural life that enriches political life and sustains its freedom.

( If public opinion is to be an independent force—something arising from the people and thus capable of limiting government—it probably must be developed through private associations, especially the idealistic half of such associations, and above all, churches. It is therefore sobering that section 501(c)(3) targets the speech of such organizations.

THREE

Liberal Democratic Anxieties

In the nineteenth century, attitudes about churches and other idealistic associations were changing. Notwithstanding what has been observed in chapter 2, Americans increasingly felt liberal democratic anxieties about such organizations—fears that the organizations and their speech were threats to individual mental liberty and the nation’s democracy. Although such fears did not yet spur the adoption of speech restrictions, the logic of suppressing the speech of churches and other idealistic organizations was already becoming apparent. It is often suggested that section 501(c)(3)’s speech restrictions were merely the product of technical tax considerations or, at worst, the result of mid- twentieth- century congressional politics. As seen in this chapter, however, what underlay the restrictions were long-standing liberal anxieties about ecclesiastical and other group speech—anxieties that were in no small part theological and even nativist.

Theology in the Development of Liberal Thought Liberal thought has a long and often distinguished history, much of which is not theological. Nonetheless, in the nineteenth century, liberal theology reshaped much liberal thought by shifting the focus of liberal fears from government to private associations. It may be disquieting to learn that contemporary liberalism owes so much to theological versions of liberalism. This lineage of liberal thought, however, is fundamental for understanding liberalism and its changing approach to speech.1

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Prior Scholarship The early history of liberal thought has been much debated. Up through the 1960s, historians tended to write about eighteenth- century liberalism in highly abstract ways, reifying it as an active cause of the American Revolution and other events, without evidence that early Englishmen or Americans ever thought about themselves or their ideas as liberal. Since the 1960s, historians (led by Bernard Bailyn and Gordon Wood) have tended to go to the other extreme—denying that early Americans were self-consciously liberal, and viewing liberalism as merely the pursuit of economic interest. As Wood summarizes, “The new liberal reality” was “selfishness.”2 British and American sources, however, reveal that many eighteenthcentury Englishmen and Americans already thought of themselves as “liberal” or as having “liberal sentiments” and that they were not talking about their commercial interests. On the contrary, they were adopting a liberal attitude that can be traced across much subsequent liberalism. The detailed evidence of this is laid out in my prior scholarship, particularly in my article “Liberality.”3 Here, it is enough to recognize the long history of self-consciously liberal ideas and how they came to include theological suspicions about the speech of churches and other associations. The Breadth of Eighteenth-Century Liberalism The liberal sentiments espoused in the eighteenth century tended to be understood broadly. They therefore seemed important for almost the full range of human life, and at least in this sense, they have much in common with contemporary liberalism. In at least one respect, however, they were different: they were not typically employed in opposition to churches or other private associations, let alone their speech. A liberal stance was appealing in the eighteenth century because it allowed individuals to raise themselves above narrow prejudices and interests and thereby assume an elevated moral position. Indeed, liberality tended to be portrayed as an elevated sentiment, of the free, open, and generous sort that might be expected of a gentleman—of a man unburdened by selfish interests or constricted ideas. Although liberality was initially modeled on traditional expectations about the character of men with superior status, it soon developed into a more modern expectation about the desirable characteristics of all individuals. All persons could elevate themselves by rising above narrow prejudices and interests.4

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It therefore is no accident that liberality in the eighteenth century had its greatest appeal in America—a nation in which gentility was not clearly conferred by birth. In such circumstances, the natural tendency of individuals to try to raise themselves above others took different avenues than inherited status—for example, the pursuit of money, power, religion, or virtue. Along these lines, Americans who sought to elevate themselves outside of, or in opposition to, local or parochial channels could find it tempting to reject such paths as narrow and illiberal and to declare an attachment to more expansive or liberal attitudes. At least by the 1760s, Americans were adopting liberal sentiments on a wide range of topics, and in ways that contributed to the development of America’s liberty and institutions. In favor of the freedom of the press, the Continental Congress declared in 1774 that this freedom was important because of “its diffusion of liberal sentiments on the administration of government.” Against religious inequalities, a “Friend of Society and Liberty” hoped in 1788 to see the “liberality and virtue of America in establishing perfect equality and freedom among all religious denominations and societies.” Similarly, against slavery, a student at the Richmond Academy urged the Virginia legislature to “adopt their most liberal regulations” so that “the late revolution in favor of liberty will ultimately produce a general emancipation in this commonwealth.”5 Even constitutions could be liberal. The Reverend Joseph Lathrop of Springfield preached in 1786 that “the constitution of these states” were distinctively “liberal.” The formation of the federal Constitution was especially liberal, for it was a means of overcoming the narrow interests and prejudices of the states. Writing to Thomas Jefferson in 1786, George Washington expressed his “hopes and expectations that we shall ’ere long adopt a more just and liberal system of policy.” With a hint of things to come, the Constitution’s substantial grant of power to the new federal government was understood to be liberal because federal power would defeat narrow local interests and prejudices. On such assumptions, many Americans wanted “a great, liberal and energetic government.” As Washington wrote to James Madison in 1786, America needed “a liberal, and energetic Constitution.” Such was the “philosophic and liberal discernment which prevails in America at present”—“the liberal way of thinking that is daily more and more predominant in the present age.”6 Going even further in a contemporary direction, some Americans began to view diversity as preferable to uniformity in public circumstances, as it would encourage liberal sentiments and thereby harmonize an other-

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wise discordant people. In 1776, an opponent of establishments in Virginia asked: “Whatever narrow zealots may allege to the contrary, does not a mixture of a variety of religious sects in the same civil society the most effectually promote freedom of inquiry, and liberal sentiments?” In 1782, President John Dickinson of Delaware applied this perspective to international politics. On the basis of their older views, the English supposed that a friendship between America and France could never succeed. They assumed this alliance would fail “because of the dissimilarity of governments, laws, manners, customs, religion and language.” Yet Dickinson rejected such “hereditary habits of thinking.” Instead, he believed that “[m]utual interests, liberal sentiments, and fair dealing, are better promoters of concord between nations, than resemblances.”7 Liberal sentiments in eighteenth-century America were thus broadly conceived and widely applied. Tellingly, though, liberal critiques of churches and their speech were not yet widely popular. That would come only in the next century. A Theological Bent In the nineteenth century, although Americans typically abandoned a broadly liberal perspective, vast numbers of them embraced theological liberalism. American liberalism of the nineteenth and early twentieth centuries was therefore predominantly theological. As a result, even when a more general liberalism revived in the twentieth century, it came with a theologically liberal bent. And this would matter for speech, not least in section 501(c)(3), because theological liberalism often took aim at the claims of churches and other organizations.8 One reason many Americans in the nineteenth century dropped their general notions of liberality was that liberality could easily be taken too far against conventional morality. Liberality was merely an attitude or sentiment, not a fixed position. Being a stance of rising above narrow interests or prejudices, liberal sentiments could be applied by different men to different constraints, and when they took it further and further, there eventually could be a reaction. In the 1787 Constitutional Convention, Gouverneur Morris rejected arguments from “liberality,” expostulating: “Liberal and illiberal—The terms are indefinite.” To illustrate his point, he suggested: “The Indians are the most liberal, because when a stranger comes among them they offer him their wife and daughters for his carnal amusement.” More moderately, Rev. Nathan Strong noted both the value and the open-ended

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character of liberal attitudes: “But while we speak of a liberal spirit, let not immorality and irreligion think they have a right to our tenderness.” Such concerns about liberal thought would soon lead many Americans to back away from its breadth.9 These moral worries about liberal sentiments were soon compounded by political anxieties. Liberality had once been a gentlemanly attitude, but especially in the wake of the French Revolution it increasingly had a more radical edge. At least in America, therefore, the political and other wideranging liberal claims that had been familiar in the eighteenth century became less salient. At the same time, theologically liberal ideas became prominent. From the beginning of the nineteenth century until well into the twentieth, liberalism in America was most commonly a theological stance against churches and their hierarchies, creeds, and other authority or “orthodoxy.” Theologically liberal sentiments had developed in the early eighteenth century in opposition to religious authority, and already then they cut against at least some types of churches and their speech. Protestant clergymen had regularly disparaged the Catholic Church’s claims of authority, and the arguments they advanced against Catholicism soon led many of them to criticize traditional Calvinism and various other Protestants assertions of religious authority. As early as the 1730s, some of these critics were repudiating ecclesiastical authority in the name of “liberal piety.” From this perspective, when clergymen used creeds and rigid doctrines, harsh tones, or other ecclesiastical “authority” to create “awe and constraint,” they imposed an illiberal restraint on the mental freedom of individuals to choose their own faith. “Persecution” thus included “the least uneasiness given to our neighbor upon account of different belief.” At stake was whether an individual, in conformity to others, would accept beliefs that were not really his own and would thereby end up sacrificing his hopes for salvation. Individuals, accordingly, were not to be pressed with authoritative claims about doctrinal truth, or about the hellfire that might come with departures from it, but instead were to be invited to follow their own minds in exploring “a rational sense of good and evil.”10 The liberal critique of authority, creeds, and doctrines was different from the liberal opposition to legal constraints on religion. As already noted, it was commonplace in the eighteenth century to complain that legal restrictions on religion were “illiberal” and to voice hopes for a “liberal” equality under law. What was less common, but would become widespread, was the view that even voluntary churches, if they made authoritative assertions of doctrine, were illiberal.11

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A notable milestone in the progress of liberal theology was the election of Unitarians to leading positions at Harvard beginning in 1805. Another was the triumph of Unitarians during the ensuing decades in taking over Congregationalist churches in Massachusetts. These, however, were only the most visible successes. Although initially associated with Unitarianism, Universalism, and Deism, theological liberalism was becoming an increasingly popular attitude in almost all Protestant denominations, not to mention Judaism. As a result, almost all Protestant affiliations in the United States— even the Presbyterians—were divided over liberal theology, and this division within denominations was often more significant than the boundaries between denominations. To be sure, interdenominational splits still predominated at the surface of American religion, but not far below, there was a growing liberal attack on “orthodoxy”—an assault that was transforming American religion.12 The underlying sociological reality was not merely diversity but individuation. A populace as mobile as Americans, and as communicative across vast distances, was relatively untethered to local communities and their shared relationships, beliefs, and hierarchies. Individuals in these fluid circumstances tended to resent claims of authority, even from their own churches and clergy, and they therefore were often tempted to feel liberal theological animosities against any assertion of theological authority or orthodoxy. Of course, relatively orthodox Protestant clergymen understood that such sentiments were often directed against them. Many therefore went out of their way to direct popular liberal passions against the model of theological illiberality, the Catholic Church. Increasingly, however, liberal animosities overflowed the banks of narrow prejudice and moved against all churches, Catholic or Protestant, and against all orthodoxies, whether theological, cultural, or political. An early hint as to how liberal anxieties about churches shaped liberal fears about other organizations can be observed in the growing concern about business and charitable corporations. When James Madison was young, his fear for religious liberty led him to propose limits on government, whether in the 1776 Virginia Declaration of Rights or the 1791 U.S. Bill of Rights. But by the early nineteenth century—notably when he vetoed the bill to incorporate the Alexandria Protestant Episcopal Church in 1811—he seems to have acquired a theologically liberal fear of authoritative and thus fixed creeds and orthodoxies. From this perspective, in his so-called Detached Memoranda, probably written c. 1820, he expressed a fear of ecclesiastical corporations and even discussed the danger from business and charitable corporations. Although he worried about the danger

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of “monopolies” and of perpetually incorporated churches and banks, his concerns were broader. The traditional understanding of the problem was the “indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations,” but he explained that the “power of all corporations, ought to be limited in this respect,” for the “growing wealth acquired by them never fails to be a source of abuses.” Revealingly, he illustrated this point with “the example of the various charitable establishments in Great Britain.”13 This expansion of liberal fears to reach all sorts of organizations, whether ecclesiastical, charitable, or financial, soon became a staple of Jacksonian politics—as can be illustrated by Isaac Hill. In 1835, the year before he became governor of New Hampshire, his campaign biography emphasized “the strong, the pervading tinge, which his liberal feelings impart to every subject on which he touches.” He was generally “liberal in his opinions, in religion as well as politics.” In religion, he rejected ecclesiastical claims of authority and thus was “willing to extend the hand of charity to every sincere worshiper of God, whether he agree with himself upon speculative points or not.” And in politics, he opposed “monopolies of every description.” Over the coming century, myriad other Americans would also move from theologically liberal fears of ecclesiastical bodies to more open-ended liberal fears of all sorts of organizations—at least where, through their speech, money, or other power, the organizations seemed to have undue influence over Americans.14 Since the nineteenth century, most Americans have largely forgotten theological liberalism, for they have revived generally liberal attitudes and made them a potent force across a wide range of American culture and politics. Nonetheless, the prominence of theological liberalism in the nineteenth century, and well into the twentieth, has had consequences for the more general cultural and political liberalism. It is not merely that many midtwentieth- century cultural and political liberals had begun as theological liberals. More substantively, as will be seen, the anxieties about authoritative ecclesiastical speech that animated theological liberalism remained appealing as a central element of much cultural and political liberalism. In other words, although Americans in the twentieth century returned to generally liberal attitudes, their liberalism retained a theological bent. Ultimately, theological liberalism altered the liberal fear of oppression, shifting the object of concern from government to private associations. From this perspective, associations are so great a threat to freedom and democracy that the people must turn to government for a response—not least to restrict speech.

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Liberal Anxieties about Speech Liberalism had consequences for speech, because the liberal fear of ecclesiastical and other group authority often came down to a fear of ecclesiastical and other group speech. Thus, long before section 501(c)(3)’s speech restrictions, anxieties about speech were becoming a staple of much liberal thought. Theologically Liberal Fears of Speech One of the foundations of liberal theology was that the creed, sermonizing, and other authoritative opinion of a church or moral association was apt to cow individuals and thereby threaten their spiritual or mental liberty. In this sense, ecclesiastical and related group speech—much of what would be targeted by section 501(c)(3)—seemed to endanger the freedom of individual thought. An early American theological liberal who expressed such fears was Elihu Palmer—a Deist who theorized about liberality, developing it into a liberal “system.” When he came to Philadelphia in the early 1790s, his skepticism did not make him popular, and the best place he could find to preach his views was a dance hall. Palmer soon lost even this lowly venue, for when he advertised his plan to preach “against the divinity of Jesus Christ,” the owner asked him to decamp. Indignant that he could not speak even in a dance hall, he complained in a newspaper about a spirit of persecution, and he preached that his fellow citizens should have been more liberal. He felt so oppressed by criticism in the press that he soon left town, but not before protesting the oppression of his conscience: “[N]otwithstanding the legal and nominal freedom that obtains in this country, the law of opinion, and the internal spirit of persecution, bear hard upon the rights of conscience.” So deeply did he feel this verbal “persecution” that he concluded: “But he does not despair; if his life is spared, he is determined to exert his feeble abilities to demolish the ancient fabric of superstition.” None of Palmer’s critics aimed to inflict physical harm on him, but he felt the religious opprobrium as persecution, even to the point of fantasizing that he would be martyred.15 Palmer’s anxieties hinted at a dramatic change in ideas about oppression. Many eighteenth-century Americans feared the tyranny of government but denied that government could control the mind. As the early Virginia Baptist David Thomas put it, conscience “cannot be swayed by human authority:

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For it is absolutely impossible to force conviction on the mind.” Such was the view taken in the eighteenth century by Isaac Backus, Thomas Jefferson, James Madison, and myriad others. In contrast, nineteenth-century liberals feared group opinion for its tendency to create a “blighting tyranny . . . over the mind.” Jefferson himself tended in this direction after 1800, as when in 1818 he wrote: “Public opinion erects itself into an Inquisition, and exercises its office with as much fanaticism as fans the flames of an Auto-da-fé.”16 Theological liberals regularly compared group or public opinion to the Inquisition and warned that, if expressed authoritatively, opinion could censor individuals as much as any physical force. In 1830, the most popular Unitarian critic of “penalties of opinion,” William Ellery Channing, preached: There are countless ways by which men in a free country may encroach on their neighbors’ rights. In religion the instrument is ready made and always at hand. I refer to Opinion, combined and organized in sects, and swayed by the clergy. We say we have no Inquisition. But a sect, skillfully organized, trained to utter one cry, combined to cover with reproach whoever may differ from themselves, to drown the free expression of opinion by denunciations of heresy, and strike terror into the multitude by joint and perpetual menace,—such a sect is as perilous and palsying to the intellect as the Inquisition.

Fearing that individuals would “lose themselves in masses,” “identify themselves with parties and sects,” and “sacrifice individuality,” Channing urged an “inward” or mental freedom from “the bondage of habit,” from the slavery of “precise rules,” and from anything through which the “mind” might be “merged in others.”17 The underlying theological danger was that if the pressure of group opinion could deprive Americans of their internal freedom of judgment, it would lead them, in Channing’s words, to “substitute the consciences of others for our own.” As explained by the New Haven Congregationalist Leonard Bacon in 1856, the risk lay in any claim of authoritative judgment that displaced the individual’s personal judgment: “By whatever method, in whatever form, we substitute for the action of truth upon the mind . . . the decision of an authority that must not be questioned,—we really subvert . . . the dominion of Christ on the earth, and we establish in its place a spiritual despotism adverse to all liberty.”18 Not merely a restraint on the mind, organized opinion seemed to Channing a threat to speech. As a result of the concerted “persecution” of other opinion, “[t]he multitude dare not think, and the thinking dare not speak.” Particularly when associations acted in coordination, they could easily “es-

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tablish a control over newspapers” and could conduct “as cruel a persecution . . . as in a despotism.” Thus, public opinion could be so “brought to bear on odious individuals or opinions” as to make it “perilous to think and speak with manly freedom, as if an inquisition were open before us.”19 Channing was seconded by many fellow clergymen, such as Bernard Whitman, who argued that “the use made of human creeds by the leaders of the orthodox denomination is subversive of free inquiry” and “religious liberty.” Summarizing the stance taken by Channing, his close associate Ezra S. Gannett eulogized that “[h]e stood by the Protestant principle of private judgment, and defended it against theological violence.” This sort of violence, as explained by another liberal, the Reverend Daniel Huntington, was commonplace even “where the civil arm is wanting,” for it existed wherever there was a “persecuting spirit.” “There is a persecuting heart, and a persecuting tongue, as well as a persecuting sword. Hard names, uncharitable censures, rash dealings, are the very essence of it.” In effect, these Protestants declined to distinguish between what one minister, Samuel Lothrop, called “internal” and “external” religious liberty.20 a Associations, their harsh speech, and their authoritative voice undoubtedly could bear down hard on individuals. But in denouncing private associations and their speech as a threat to individuals and their speech, many theological liberals went in a direction that would eventually result in governmental speech restrictions, including those in section 501(c)(3). Tocqueville evidently drew much from Channing and other theological liberals. Moreover, after the Frenchman published Democracy in America, theological liberals tended to quote him—one of their favorite lines being that there is “no country in which there is so little true independence of mind and freedom of discussion as in America.” And a liberal such as Orville Dewey could even find in that “intelligent French traveler” a “striking

a. Theological liberals made their arguments with a range of different emphases. Most fundamentally, they worried about authoritative claims about religious or other truth, lest individuals adopt their religious beliefs out of deference rather than rational and free reflection. Often associated with this rejection of authority was an assumption that those who asserted authoritative truths were apt to speak in a harsh or overbearing manner and that this severity would lead individuals to choose their faith on the basis of a superstitious anxiety about hellfire or even merely a timid unwillingness to resist “human frowns.” And because authoritative opinion was prototypically majority or at least group opinion, individuals might succumb to the weight of opinion or peer pressure, thus substituting group opinion for freely chosen belief. In such ways, authoritative speech and opinion seemed to do violence to the intellect and authentic faith of individuals. Liberals sometimes bolstered their arguments by suggesting that illiberal views ineluctably, given the opportunity, would issue in government coercion and oppression, but this argument was peripheral to their central focus on the mind.*

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confirmation” of the liberal view that the “general effect of public opinion . . . is increased . . . by the principle of association.”21 The difference was that whereas the liberals thought voluntary associations were the source of the problem, Tocqueville considered them the solution. Tocqueville thought such groups enabled individuals to overcome their weakness and maintain public opinion independent of government. Liberals, in contrast, worried that through associations, the “influences of society” menaced “individuality of character.” As put by Dewey, associations underlay the “tendency of a controlling public opinion to abridge private and personal independence.”22 On such foundations, John Stuart Mill developed his ideas about the danger to individuality from religious and, indeed, all sorts of social opinion. His wife, Harriet Taylor, whom he met in 1830, had a Unitarian background, and after some of Channing’s works became available in London in the same year, Mill assimilated the American’s theologically liberal fear of group opinion. Most famously, in his 1859 book On Liberty, Mill warned how opinion could threaten individuality. A careful reading of Mill’s tract does not sustain the common scholarly belief that (as put by Isaiah Berlin) Mill had an “overmastering desire for variety and individuality for their own sake.” Certainly, however, Mill worried about the “present direction of public opinion,” which he thought was “peculiarly calculated to make it intolerant of any marked demonstration of individuality.” There was a “philanthropic spirit abroad, for the exercise of which there is no more inviting field than the moral and prudential improvement of our fellow-creatures,” and this made the public especially prone to make everyone “conform to the approved standard.” The threat to liberty thus came not merely from the state but from the “despotism of custom”—from the “ascendency of public opinion in the state.”23 As suggested by the recurring liberal fear of organized or public “opinion,” theologically liberal fears were not confined to speech; they also, even more intolerantly, could reach mere attitudes. A harsh tone could convert otherwise innocent speech into something oppressive, and even “human frowns,” Channing thought, could have this effect. Thus, the mere suggestion of opprobrium could be oppressive—perhaps even more oppressive to the mind than government force. Also frequently condemned as illiberal were orthodox attitudes and ideas and more generally all habits or customs—again, things that could be felt as oppressive even when not put into words. Channing, it will be recalled, complained about “the bondage of habit,” and John Stuart Mill worried about the “despotism of custom.” A mere tendency of thought could be dangerous.24

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Undoubtedly, individuals tend to be sensitive to group and other authoritative opinion; this is a real psychological danger. Theological liberalism, however, held that the penalties of opinion were as dangerous as the penalties of law—that the mental harms from opinion were at least as serious as the physical limits imposed by government. This was an exquisite sensitivity to mental harm, and by thus elevating the threat from private opinion, and minimizing the threat from government, theological liberalism laid the foundation for government constraints on the freedom of speech. Liberalism thereby created its own threat to liberty. Whereas traditional American understandings of liberty focused on the freedom enjoyed under law against government, the theologically liberal vision centered on the internal freedom enjoyed within the mind and thus on the oppressiveness of censorious or otherwise authoritative opinion, especially group opinion. And this shift was ominous, for whereas the danger from government seemed to require constitutional limits on government, the threat from overbearing authoritative opinion might require government limits on private speech, notably group speech—as would become a reality in section 501(c)(3). Antiorthodox Slant These liberal concerns about group speech, and more generally about authoritative opinion, could be applicable, in the abstract, equally to the theological liberal and the theologically orthodox. Theological liberals, however, understood themselves as a beleaguered minority, and they understood themselves as individuals who were exploring the truth rather than a group asserting theological authority. Therefore, long after they became a majority, they continued to imagine that their speech did not come with the force of numbers or authority. Even when organized into religious groups, such as the Unitarians, theological liberals thought that they formed their beliefs as individuals rather than as members of their groups. The Reverend Aaron Bancroft, president of the Unitarian Association and father of the historian, argued that Unitarians were not really a sect but rather were merely a collection of independentminded individuals. Their “faith was the separate conclusion and result of the action of independent minds, each thinking, inquiring, and deciding for itself, and adopting that belief, for which it was willing to be responsible by itself.” Under pressure from the antagonism of the orthodox, Unitarians worked together in the manner of a sect, but “[i]f we are a sect, it is involuntary; it is because others have compelled us to become such; and it will continue no longer, than the force which compels us continues to operate.”25

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This vision of their individuality, even within their religious denominations, was the sort of self-image that Protestants had regularly used to distinguish themselves from Catholics. From this point of view, Catholics were merely theological slaves, who held their beliefs in submission to their church, and their political influence therefore violated the separation of church and state. In contrast, Protestants held their faith as individuals, in accord with their consciences, and consequently their religion, being that of individuals rather than a church, did not violate the separation of church and state. Theological liberals turned this vision of individual faith against fellow Protestants as well as Catholics. Liberals assumed that they believed as mere individuals, not as a group, and that their opinions were therefore not oppressive, but, in contrast, the opinions and speech of relatively orthodox Protestant churches threatened mental liberty. Liberal ideas about oppressive ecclesiastical opinion thus came with a slant—with a prejudice against whatever opinion or speech could be condemned as orthodox. From this liberal perspective, “orthodox” speech and opinion threatened individual thought, but the liberal equivalents did not. This was another hint of things to come. In worrying about group speech and adopting an antiorthodox slant, nineteenth-century theological liberalism laid a groundwork for the fears that would lead to section 501(c)(3).

A Nativist Twist During the nineteenth century, the theological bent of liberalism acquired a nativist twist. Theologically liberal fears traditionally had centered on the threat to the mental freedom of individuals from churches and their authoritative speech. The nativist version of these fears, however, added majoritarian political concerns about the threat to democratic government, and this would matter for section 501(c)(3). This additional layer of anxieties was not entirely new, for it was implicit in much theologically liberal thought, and it tended to surface whenever relatively orthodox clergy engaged in politics against more democratic forces. Already during the 1800 presidential election, when New England ministers denounced Jefferson as a deist and slaveholder, Jefferson and his allies protested bitterly not only about how these clergymen were established by law but also, in theologically liberal terms, about how they and their creeds stultified the minds of individuals in both religion and politics. It was in these democratic circumstances that Jefferson declared that he had “sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.”26

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The combination of fears both for individuals and for the nation’s democracy became widely popular when Americans responded to Catholic immigration by turning to nativism. The arrival of large numbers of Irish Catholics in America prompted worries because the Catholic Church, in exerting its ecclesiastical authority, seemed to deprive its adherents of their mental freedom and thereby could apparently use its theological influence to secure political power. As put by Samuel Morse in 1835, “Popery” had stifled the intellect of Catholics by filling their minds with “puerile fables” and closing “their mental eyes in the darkness of ignorance.” This gave the Church the “advantage of a despotic organization” in politics, and the Church might thereby assert its antidemocratic power by relying on its followers in elections—that is, “by assuming the name and adopting the language of democracy.” The ecclesiastical threat to the mental freedom of Catholics thus became a threat to American democracy.27 Many Americans responded, beginning in the 1840s, by forming nativist fraternal organizations. Nativism was a movement not only to defend native- born Americans from Catholics but also to promote Protestant American principles against Catholicism. For more than a century, nativists took a theologically liberal stance against the Catholic Church and its speech, and they thereby transformed American life, including American liberalism, in ways that eventually, as became manifest in section 501(c)(3), would seem to require speech restrictions. Of course, not all nativists were theological liberals in their own churches. On the contrary, many were not. By offering a shared liberal stance against the Catholic Church, however, nativism united many Protestants who otherwise were divided by liberalism. For example, as already hinted, after Presbyterians and other more or less Calvinist clergy took the brunt of theologically liberal complaints from Unitarians, many of these roughly orthodox clergy took the lead in stirring up theologically liberal animosities against the Catholic Church. By this means, they simultaneously could reclaim their sense of leadership among Protestants and could deflect theologically liberal fears away from themselves and toward Catholics.28 For at least a century, and in some quarters even longer, nativism infused the theologically liberal anxieties about authoritative ecclesiastical speech with a concern for democracy, thereby giving it overtly political implications. Nativists associated religious hierarchy with political hierarchy and repeatedly condemned the Catholic Church as an ecclesiastical tyranny that threatened democratic freedom. Such arguments regularly turned the theologically liberal anxiety about the mental independence of individuals into a broader fear for the nation.

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The danger, as noted, was that the Catholic Church “combined political and religious papal influence, extending to the ballot box.” Its religious control over the minds of its adherents would thus allow it to “overthrow American liberty.”29 For example, when Thomas Whitney—a nativist editor and politician—argued in 1852 that Catholics should be denied suffrage, he rested on their alleged renunciation of mental independence: The individual who places his conscience in the keeping of another, divests himself of all individuality, and becomes the creature, the very slave of his conscience-keeper. In every sense, moral, social, and religious, he becomes a mere instrument, and as a natural consequence his whole being, his happiness or misery, his successes and defeats, his condition and circumstances, all are made dependent on the will or caprice of another.

Deprived of individuality, Catholics lacked the essential qualification for voting: “The exercise of the right of suffrage is, in its legitimate sense, an intellectual act; and the conferring of that right upon minds like these—minds incapable of understanding the purport or power of the ballot—seems little less than an act of madness or imbecility.”30 As put in 1855 by James Putnam— the New York state senator from Erie who sought to deprive Catholic bishops of their ecclesiastical property—if an individual would “surrender a portion of his franchise to his spiritual teacher, he will soon be prepared to surrender all his judgment, all his political individuality, to the same ambition.”31 In other words, not only the Catholic Church’s claims of temporal power but also its internal doctrines, discipline, and structure of authority—which, in America, were entirely voluntary—seemed to threaten “inward” individual freedom or individual authority. And because this apparently rendered Catholicism undemocratic, Catholics merited losing their right to vote and perhaps also, it will be seen, their right to speak. Although the nativist anxieties for democracy initially flourished among Protestants who took a liberal stance against Catholicism, these fears for democracy soon took hold among Americans who pursued their theological liberalism more systematically. Notable among these theological liberals were those who in the 1870s called themselves “secularists” or “Liberals” and formed themselves into the liberal leagues and ultimately the National Liberal League. They typically opposed all Christianity and, indeed, all organized religion, and their embrace of the new liberal fears for democracy can be illustrated by Carrie Kilgore’s 1876 speech “Democracy.” She was the president of the Philadelphia Liberal League, and at the Centennial Congress of Liberals she spoke to the newly formed National Liberal League in

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support of its campaign for the separation of church and state. Like antiCatholic nativists, she framed her liberal fears for the individual’s mental freedom in terms of more political anxieties about the nation’s democracy. The difference was that, as might be expected from a secularist or Liberal, she directed her political argument not merely against Catholicism, but more broadly against Christianity and all ecclesiastical and religious authority. Whereas the “[s]overeign authority” of a “king, a pope, a creed, [or] a Divine revelation too sacred to be questioned” was “inimical to republicanism,” the “[i]ndividual sovereignty of reason and judgment” was “consistent with a democracy.” From this perspective, “Christianity is . . . averse to republicanism.” Americans thus had a choice—as already framed by nativists against Catholicism but now applied against all Christianity—between two theopolitical visions, “the one democratic, the other despotic.” What began as a theologically nativist complaint about the undemocratic character of Catholicism had become the basis for a liberal protest that all Christianity, on account of its claim of authority, was “averse to free institutions.”32 b In such ways, nativism was beginning to transform American liberalism. Whereas theological liberalism in the eighteenth century had been the position of a small minority of individuals who were fearful of majority creeds and ecclesiastical authority, it now was becoming the position of a majority that was worried about the creeds and ecclesiastical authority of minorities. Whereas theological liberalism once emphasized individualistic fears for the individual’s mental liberty, it increasingly combined this with majoritarian fears for the state and its democracy. Democracy thereby came to seem a liberal basis for suppressing the political rights of undemocratic minorities. The contemporary implications of the theological and nativist developments are sobering. Although American liberalism has returned to a general cultural and political attitude, it acquired, beginning in the nineteenth century, a theologically liberal bent against churches and other associations, and even a nativist twist against many such organizations as threats to democracy. Prevailing liberal fears have thus increasingly shifted from fears of government to fears of private associations, and these worries about associations are now expressed not only for individuals but also for the majority and its democracy. b. Carrie Kilgore explained: “I use the term Christianity with no reference to Christ or his teachings, but as the name of a special religion,—the religion of this age and people. Were I to say that Mohammedanism was averse to free institutions, the Christian would honor my judgment; for he can see that implicit faith in and obedience to the Koran, as an unquestionable revelation of Deity, must of necessity circumscribe thought and action and render the individual unfitted for self-government.”*

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Oppression, in the liberal vision, has thereby partly changed direction. Rather than focusing on government as a threat to individuals, much liberal thought has also come to view associations as a threat—both to individuals and to democracy. And as will be seen when this book gets to section 501(c) (3), the tax code eventually was the vehicle for addressing this danger.

Demands for Suppression Liberal anxieties did not generally lead to the suppression of speech before World War I. They already, however, produced some notable demands for suppression, lest ecclesiastical opinions endanger the nation’s political freedom. Of course, most liberals still declined to move toward suppression. Many understood the danger that liberalism was apt to be intolerant of nonconforming or otherwise distinctive views. As will be seen later (in chapter 14), some liberals in the 1870s cautioned, “let liberals not become bigots, and demand that others shall think precisely as they do.” Nonetheless, liberal fears about the danger from ecclesiastical speech led to proposals for drastic limits on speech. The initial focus, predictably, was Catholic speech. More than any other development, liberal anti-Catholicism accustomed Americans to thinking it illegitimate for churches to exercise political influence.33 The most prominent call for legal action came from in 1870 from Elisha P. Hurlbut—a theological liberal and former New York judge—who proposed an amendment to the First Amendment. His suggestion was to apply the First Amendment to the states and add an enforcement clause, all of which sounds innocuous enough, until one considers the details. The enforcement clause would have authorized Congress to “enact such laws as it shall deem necessary to control or prevent the establishment or continuance of any foreign hierarchical power in this country, founded on principles or dogmas antagonistic to republic institutions.” As Hurlbut explained, Congress would thereby be authorized to forbid “the exercise of any priestly office under a foreign appointment, by any order of religionists, whose organization, discipline and teachings among us, were antagonistical and dangerous to our political teachings.” He candidly added that he was taking aim at “the Roman pontiff, his high dignitaries, and his doctrines,” which Hurlbut denounced as “utterly at war with our entire theory of government.”34 Underlying this nativist concern about democracy was, predictably, a theologically liberal anxiety about mental freedom. The United States had recently emancipated slaves, but “[t]here are bondsmen still on our soil,

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subjects of a foreign tyranny, in comparison with whose bondage, African slavery, with intellectual freedom, was as nought.” From this perspective, “Democracy and Theocracy are stronger and fiercer in their antagonism, than freedom and slavery.” On this basis, democratic freedom required suppression of theocracy: “A free government rests on opinion, and opinion may change as to convert it into a despotism; it must therefore be guarded against influences which tend to its overthrow.”35 His solution to the danger from Catholic opinion was to abort the Catholic Church: Suppose then, we indulge in a familiar piece of surgery, and cut the umbilical cord which binds the spiritual foetus of America to the great mother of superstition, and thus stunt a growth, whose completed proportions would be likely, upon a successful delivery, to ruin the nurse into whose arms it should fall. It is not murder for the midwife humanely to stifle the birth of a monster.

He understood that some readers might fear the amendment was “calculated to abridge religious liberty,” but from his liberal perspective, he did not think so: “There is a distinction to be taken between religious opinion and worship on the one hand, and organizations and practices in the name of religion on the other.” In another of his metaphors, “theocracy is a fungus of religion. It may be eradicated without hurting religion itself.” Theocracy and its opinions could be suppressed because “[t]heocracy, as the world has ever known it, is not religion, but a false assumption—usurpation and tyranny.”36 More ecumenical hopes for suppression, which took aim at not only the Catholic Church, but all churches, can be illustrated by a 1914 Truth Seeker booklet, Science and Superstition. The author, Samuel Stevens, was a New Hampshire doctor, and although there was nothing distinctive or influential about his desire to do away with churches, his views are therefore all the more revealing. “No priest or prelate, pope or potentate,” he declared, “should be permitted to stand between man and nature, or interfere with the divine right of freedom of thought and expression.” The underlying problem was that “[d]ogmatic religion is an embodiment of error—little less than criminal to believe or teach!” At the individual level, “Any man or woman who allows another to do their political or religious thinking is an enemy to free institutions—unfit to be the citizen of a Republic.” At the organizational level, Stevens added that ecclesiasticism was one of those “diseased conditions that call for heroic treatment.” He explained: “While by no means inclined to go as far as one great Vermont iconoclast, in saying,

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‘all clergymen should be hung and all churches burned!’—We will say that all high ecclesiastics should be compelled to . . . eat bread in the sweat of the brow;—and that all church buildings be converted into Scientific Laboratories,—open and free to all.”37 This was a theologically liberal fantasy. Some men’s dreams, however, are apt to become other men’s nightmares, and the liberal vision of freedom evidently could have very dark horizons. Thus, even before the period that will be the focus of this book, liberal anxieties were beginning to draw Americans in disturbing directions. Fears about theocratic doctrine and influence, whether Catholic or more generally ecclesiastical, seemed to justify the suppression of the Catholic Church and perhaps even all churches, and although this suppression was initially a mere fantasy, more measured demands for the suppression of ecclesiastical speech would soon become popular and plausible.

Liberal and Progressive Looking ahead, beyond the nineteenth century, one can see how liberal fears of private associations anticipated, and eventually came to include, progressive fears of private associations as instruments of private oppression. Both liberal and progressive anxieties often seemed to justify government restrictions on private freedom, and because of the progressive confidence in government, the alliance of these tendencies could reinforce the sense that government should intervene, not least in speech. It has already been seen how the theologically liberal fear of churches increasingly could become a liberal stance against a wide range of powerful associations, including businesses. James Madison and Isaac Hill eloquently expressed these sweeping liberal anxieties in the early nineteenth century, and by the end of the century such worries became a basis for progressive concerns about economic power. In this way, progressive suspicions of corporations grew partly out of liberalism.38 Progressives and theological liberals tended to share worldly religious impulses. While many Americans in the nineteenth century were becoming skeptical about salvation in another world, they simultaneously were becoming confident about the possibility of salvation in this world, and this tendency was evident both among liberals and among progressives. Among the things that distinguished progressives, however, was their focus on economic oppression and their hope for redemption through the good graces of government. The energies once devoted to the conversion of sinners and the salvation of souls found new outlets in the saving of the socially downtrodden and the conversion of the obdurate who hesitated to

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embrace progressive reforms, and in these battles, the threat seemed to come from private organizations. To which progressives added that government should redress the danger of private oppression—even, if necessary, at the expense of rights. Notwithstanding differences, liberal and progressive attitudes often converged. As noted by Thaddeus B. Wakeman in 1879, “Liberals, who are generally poor or educated, or both,” were “therefore often very radical and progressive.” Illustrating this, Samuel Stevens in 1914 not merely protested “ecclesiasticism” and its “vast untaxed possessions,” but more broadly complained that “[o]rganizations of every kind are supremely selfish, a menace to the state, and to equal and exact justice between men.” In such ways, liberalism increasingly moved beyond theology and once again became a general cultural or political attitude—although now with a theologically liberal edge against organizations and their speech, which was often accentuated by a sharp progressive distrust of business organizations. In such ways, many liberals could be progressive, and many progressives could easily consider themselves politically liberal.39 The way in which it was “liberal” to adopt progressive limits on speech was explained in 1953 by Francis Biddle in an American Civil Liberties Union (ACLU) pamphlet called Dilemmas of Liberalism. Biddle had been chairman of the National Labor Relations Board during much of the 1930s and attorney general during World War II, and he now observed the conflicting impulses felt by “the modern liberal who, still not unmindful of the necessity of restraining state power,” nonetheless sought to use that power “for services which he deems essential or valuable, or to balance forces that have developed on the industrial scene, which, it would appear, cannot be kept in hand by resort to any less potent control.” In other words, the progressive liberal anxiety to counteract private oppression might require government limits on speech, and the way Biddle framed the resulting constitutional questions revealed his answers: Does the admirable doctrine of free enterprise and free speech necessarily involve abandoning these media to the commercial field? Is the control, in effect the censorship, implicit in the British broadcasting system, the return to a state monopoly, more hurtful to the creative imagination of human beings, to the sources of their energy and the vitality of their leisure, than the flood of commercials to which the American public are at present subjected? Is it necessary, we might further ask, that our young be educated by the ideals of Superman, richly soaked in brutality and sadism, because all books are free and children should be allowed to buy them?

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Biddle thereby questioned whether Americans should be free to publish as they pleased. As might be expected of a leading proponent of the New Deal, he focused on the danger from economic rather than idealistic organizations. His Dilemmas of Liberalism thus reveals how seamlessly liberals of all sorts—not only theological but also political liberals—were led by their concerns about private influence and oppression to question the freedom of speech.40 This liberal and progressive fear of private influence was often matched by a progressive confidence in government, which opened up doubts as to whether it was still admirable to allow private associations to shape public opinion independently of government—that is, to impede the government in its benevolent exercise of power. Government seemed the primary source of wisdom on most economic and policy questions, and government benefits were increasingly displacing or even subsidizing private charity—leading to what a commentator in 1952 at the American Jewish Committee called a “deep penetration by government into areas which were formerly spheres of church activity.” In these shifting intellectual and economic circumstances, churches and other idealistic organizations were, perhaps, better understood as instruments of government power than as independent bodies. Indeed, their old tendency to speak truth to power could seem like ill-informed interference with the forces of both power and truth.41 Of course, American liberals included very different persons, many of whom were at odds. Those who identified as liberal included, for example, both those who worried about government power and increasingly those who worried more about private power. The latter, moreover, included not only Biddle but also Hiram Evans. It may seem odd to include under one rubric a distinguished participant in the ACLU and the imperial wizard of the Ku Klux Klan, but they both described themselves as liberals, and this is revealing. They held opposing views on the nature of liberalism—Evans being still centrally concerned about ecclesiastical oppression (what he called “old-time Liberalism”) and Biddle being more concerned about economic oppression (what he called “modern liberalism”). They both, however, feared much private speech as oppressive and wanted government to do something about it.42 c c. Evans complained in 1930 that “[t]he word ‘Liberalism’ has been used in so many ways that its meaning is no longer definite.” Two decades later, Biddle acknowledged that “[t]he word ‘liberal’ is itself ambiguous, used to suggest a variety of meanings—a political policy, a way of life, a point of view—sometimes historical and sometimes moral,” and that “[t]he incidence and implications of the word change even as the evolving society to which is applied forms and reforms . . . like the changing texture of a cloud.” More than Biddle, Evans emphasized some of

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Changing Conceptions of Liberty and Oppression Although the flow of constitutional law and liberal sentiments traditionally pressed against government power, there has also been a liberal crosscurrent that has pressed against private power. And this crosscurrent would have consequences for section 501(c)(3). Indeed, it has transformed American conceptions of liberty and oppression. The Constitution responded to the danger of conflict and injustice within American society mostly by limiting government power, and this was widely considered liberal. Much subsequent liberal and progressive thought, however, responded by seeking limits on private power and a corresponding expansion of government power. The distance traveled since then is evident from the response of the founding generation to the danger of private oppression. Cesare Beccaria famously observed: “In every human society, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally.” Melancton Smith quoted this in 1788 in the New York Ratification Convention, but like most of his contemporaries, his solution was to seek further limits on government. Although James Madison aimed in his early nineteenth-century Detached Memoranda to limit the wealth of ecclesiastical, charitable, and business corporations, he tended in the eighteenth century to respond to private power by worrying about the framing of government. For example, in Federalist 10, he recognized that factions might attempt oppression, but rather than indulge in the “folly” of seeking to limit their liberty—a cure he considered “worse than the disease”—he explained how, in an enlarged republic, factions would have difficulty capturing government.43 Against this background, theological liberalism, including nativism, was consequential, for it began a systematic realignment of liberal fears, by which private power came to seem more fearsome than government power—so much so that it often seemed to justify government restrictions on private freedom, including constitutionally protected private speech. The alleged goal was to confine some dangers from within the society, but as

the sharp divisions among liberals. He complained about those who employed liberalism “as a cloak for so many anti-social and often immoral practices and ideas.” This “modern Liberalism, so-called, has little in common with the old,” for it “sees a menace to individual liberty in moral laws, but none in the destruction of individuality by the parochial schools.”*

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will become apparent from section 501(c)(3), even if the aim was always so wholesome, the liberal solutions expanded the danger from government. Indeed, there is reason to fear that, on the basis of liberal anxieties, an individuated majority has used government to suppress the speech of their theological, cultural, and political opponents. One way or another, the theologically liberal fear of churches, including the nativist fear for democracy, did much to reconfigure conceptions of liberty and oppression. Liberal ideas of liberty increasingly came with a solicitude for individuals’ mental freedom and the nation’s democracy, and liberal ideas of oppression came with a fear of authoritative associations and their orthodox opinion and speech. Liberalism itself was thus transformed.

( Notwithstanding that idealistic associations and their speech have long appeared essential for independent public opinion and consequently for limited government, another point of view became popular in nineteenthcentury America. For vast numbers of Americans, theological liberalism, including nativism, recast mere speech as a threat to individuals and democracy. No wonder, from a liberal perspective, the speech of many associations was coming to seem more worthy of attack than of protection.

FOUR

Influence and Propaganda

The liberal anxieties about the speech of idealistic organizations eventually found expression in law. Whether worried about the Catholic Church or a wide range of other idealistic groups, many Americans adopted a theologically liberal stance against the speech of such associations, complaining that they were using their “propaganda” and powers of persuasion to “influence” and even control the nation’s democracy. Some commentators were so concerned about this that they called upon churches, and at times also other idealistic associations, to silence themselves or face legal restrictions on their speech rights. It may be doubted whether section 501(c)(3)’s restrictions were a direct result of any such demands for suppression, but in the context of the complaints about propaganda, influence, and other speech dangers, it is not surprising that Congress adopted section 501(c) (3)’s speech restrictions and even framed the first of them in terms of “propaganda” and “influence.”

Influence and Propaganda What was the theological and cultural context in which restrictions on the speech of churches, schools, charities, and other tax-exempt organizations seemed acceptable and even desirable? An initial answer can be found in liberal anxieties about the speech of the Catholic Church. It is well known that many nineteenth-century nativists and other Protestants adopted a theologically liberal stance against Catholics and thereby hoped to limit their political participation. Less familiar is that this attack continued well into the twentieth century and that anti- Catholic prejudice thus prepared the way for section 501(c)(3).1

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Many Americans during the twentieth century expressed liberal fears about Catholic speech—about the Church’s influence, about its propaganda, and more generally about the danger that the Church might sway the public and ultimately the government. Liberal fears of Catholic speech thus established a model and vocabulary for broader worries about the speech of all sorts of idealistic organizations. At the outset, before delving into the anti-Catholic layer of these anxieties, it must be emphasized that the broader argument here is not that section 501(c)(3) was narrowly anti-Catholic or even narrowly antireligious. On the contrary, the point is that anti-Catholic tropes and code words laid a pathway for more ecumenical liberal anxieties about idealistic associations and their speech and thereby led to the sort of suppression that acquired legal force in section 501(c)(3). Catholic Influence on Elections and Legislation As in the nineteenth century, so in the twentieth, nativists worried about the “influence” of Catholic organizations on elections and legislation. Anxious that Catholics would defer to the authority of their church not only in religion but also in politics, nativists protested against the influence of the Church—an influence exercised through speech—in elections and legislation. They thereby laid part of the foundation for section 501(c)(3), including both its 1934 restriction on influencing legislation and its 1954 restriction on campaigning. An underlying concern (as noted in chapter 3) was the old theologically liberal fear that the Catholic Church exercised ecclesiastical authority over its members and thereby secured their unreasoned attachment to its orthodoxies. On such assumptions, the Church’s authority interfered with the rational and independent mental judgment of individual Catholics, and by depriving Catholics of their independent judgment as citizens, the Church even threatened American “democracy.”2 Summarizing the problem in 1927, the New Republic explained: “The real conflict is not between a Church and State or between Catholicism and Americanism, but between a culture which is based on absolutism and encourages obedience, uniformity and intellectual subservience, and a culture which encourages curiosity, hypotheses, experimentation, verification by facts and a consciousness of the processes of individual and social life as opposed to conclusions about it.” Paul Winter—the thuggish Pennsylvania Klan leader—more succinctly said the choice was “Mental Slavery v. Liberty.”3

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Particularly worrisome was how the threat to mental liberty could become a threat to political liberty. Justin D. Fulton’s nativist classic, Washington in the Lap of Rome, had been published in the nineteenth century, but the theme persisted. According to Henry Clay Morrison—the widely admired president of Asbury College, who published Romanism and Ruin in 1914—it was “no secret” that “the Roman Catholic Church proposes to dictate the policies, the election of officials, the legislation and administration of the law of the country.” Thus, whereas “[t]he Protestant churches are not political organizations; the Roman Church is a political organization.” Whereas “[t]he pastors of Protestant peoples do not control the votes of their people; the priests of the Roman Catholic Church do control the votes of their people.”4 Of course, Morrison and his ilk emphasized that they had nothing against the liberty of individual Catholics but merely were concerned about the “influence” of the Church: Let it be understood that we would not countenance, for one moment, any sort of interference or infringement upon the civil rights or religious liberties of a Roman Catholic. Nothing could be more foreign to our thought. . . . But it must be remembered that the Roman Catholic Church is not only a church, but it is one of the most powerful political organizations in all the world. That her millions of members, with rare exception, are under the absolute sway of their ecclesiastical masters, and the Pope of Rome, with his cardinals and bishops are constantly seeking advantage in this country by throwing their political influence where it can be used to best advantage to intimidate, and influence those who make and enforce the laws of the land.

Being a majority, Protestant organizations also influenced elections and legislation, and Morrison therefore attempted to sound evenhanded: “If any one of the great Protestant churches of this nation should enter openly into politics, keep a strong lobby at Washington City, seek to influence legislation,” and should it “throw its influence and vote first to one party and then the other, simply voting where it could secure most advantage for itself; that church would justly subject itself to severe criticism.”5 Protestants, however, were diverse, and they seemed to act individually, in accord with conscience, rather than under the control of a single church. The problem of church influence on legislation and in elections therefore seemed distinctly Catholic; it was “exactly what the Catholic Church has done, is doing, and will do.” Thus, as put by Andy Lockhart, the Church had disproportionate power: “Out of all proportion to its local and national

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membership,” the Catholic hierarchy had “concentrated its activities and exercised its power in Washington”—the goal being to “exercise a marked influence upon every piece of legislation which this church may favor or disapprove.”6 Such concerns were commonplace. In the 1920s, William Lloyd Clark used his Rail Splitter Press to churn out titles such as Washington in the Grasp of Rome, Pat’s Grip on the Government, and, later, Al Smith and the White House.7 A typical Rail Splitter heading was “Papal Claws in Nation’s Throat.” And cartoons were plentiful. “A New Laocoon,” for example, showed the Capitol topped by a cross in the background and, in the foreground, Uncle Sam, surrounded by Education and Liberty, struggling to escape the coils of a giant snake labeled “Superstition” and “Priestcraft.”8 Many Protestants responded with their own efforts at influence. The antiCatholic newspaper the Menace demanded in 1914 that Catholic votes had to be met with American votes, prompting a commentator to rhyme: Read the Menace Get the Dope Go to the Polls And defeat the Pope.

Fourteen years later, the theme was unchanged: If Al Smith is elected, You can take this tip from me. The orders from the Vatican Will be cabled o’er the sea. For the sake of Pilgrim fathers, There’s a guy we’ve got to lick, Or Columbia will be outraged By a crafty scheming Mick.

More soberly, as to legislation, the Philadelphia Lutheran boasted that a “body of Lutherans” had “taken the lead in exposing and counteracting very manifest and very pernicious attempts on the part of the Roman Catholic Church . . . to influence legislation in its behalf.”9 The Church defended its social and political action as part of its religious mission—as when the pope in 1929 told the faithful that “to promote and defend Catholic schools for their children is work of a genuinely religious character, and it is therefore the chief duty of ‘Catholic Action.’ ” In response,

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the most prominent masonic body in America—the Supreme Council 33° of the Scottish Rite, Southern Jurisdiction—denounced the pope’s views, and its grand commander condemned “[t]he ‘Catholic Action’ societies in papal countries,” not least on the ground that they “terrify law-making bodies into passing laws demanded by the papacy.” He therefore asked: “Shall we tolerate them here in America?”10 a The fear of Catholic power remained widespread and respectable well into the mid- twentieth century. Protestants and Other Americans United for Separation of Church and State worried in 1948 about “the interpenetration of papal influence and control over the huge concentration of Catholic interests in Washington.” Recognizing the danger of seeming to go too far, it asked: “What do we mean by Catholic influence? We must distinguish clearly between the power seeking prelate who would undermine our form of government and mold us all through legislation in an ultimate goal of uniting Church and State and the humble Catholic follower whose only fault is a blind faith in leaders who regard him as tool.” The problem, in other words, was the influence of the organization.11 Even into the 1960s, Protestants and Other Americans United was still complaining that there is “no more powerful political influence in the United States than that exercised by the Roman Catholic Church.” By way of example, it noted that in the 1960 presidential election, “this strategic influence was largely responsible for the election of the first Roman Catholic as President of the United States.”12 Protestants and Other Americans United had no such qualms, however, about its own theological engagement in politics. It was founded ecumenically as a theologically liberal organization, and in the old theologically liberal nativist style, it urged: “Vote American. The ballot box is the chief weapon of the patriotic American.” Speaking in anti- Catholic code words, it explained that, if a candidate was “opposed to American freedoms or American institutions the patriot cannot support him,” and that public issues should be evaluated “in the light of the Constitution and the American way of life.”13 Amid these long- standing fears about influence on legislation and elections, section 501(c)(3)’s restrictions begin to make sense. The antiCatholicism was not, by itself, a cause of the suppression, for the Catholic Church was merely prototypical, but it was the opening wedge. a. The Scottish Rite, Southern Jurisdiction, included all of the United States other than the northeastern states, Ohio, and the states around Lake Michigan. For the sake brevity, this book sometimes refers to it simply as the “Scottish Rite.”

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Broader Fears of Influence Fears of Catholic influence gradually legitimized concerns about a broader range of associational influence on politics. Theological liberals had long directed their complaints against fellow Protestants, and therefore, even in relying on the Catholic Church as the prototypical danger, they often generalized about the danger from all churches, creeds, and dogmas. And the liberals who skirted along the edges of Protestantism, or who slipped over into secularism, were especially apt to generalize in this way. Even nativists, who focused their liberal anxieties on the Catholic Church, often spoke more broadly about the danger to individual liberty and faith from any claim of ecclesiastical authority. A 1924 anti-Catholic nativist tract generalized, “Keep religion out of politics,” and explained: “A church in politics is contrary to one of the leading fundamental principles of Americanism. It is therefore for the sole purpose of keeping religion out of politics —not ‘putting it in’—that liberal patriots are working.” In similarly general ways, a mason protested in 1954 in the New Age—the organ of the Southern Jurisdiction of the Scottish Rite—that “there are some religious groups which insist on using their influence in lobbying and otherwise directing political procedure.” Nativists thus could speak entirely generally and yet without leaving any doubt about the organization that was the sum of their fears.14 From a later vantage point, it may seem oddly inconsistent for nativists to have held broadly liberal ideas in opposition to church influence and yet to apply such ideas only to Catholics. It made sense to many nativists, however, because, whereas Catholicism was a church, Protestantism (or true religion) seemed merely a matter of conscience. Nativists could thus adopt liberal generalities against churches and their influence without assuming that such generalizations applied to themselves. As times changed nativists moved toward their generalizations; they became more attached to their ideals than to their animosities. Like so many Americans, nativists were becoming more individuated, and it therefore is no surprise that they began to shift from a merely Protestant anti-Catholicism to a more broadly liberal antiecclesiasticism. One way or another, some of them increasingly took their underlying liberal principles seriously enough to question the political influence of all churches. Already at the beginning of the twentieth century, part of the leadership of the Guardians of Liberty tried to persuade its anti-Catholic members take a generally antiecclesiastical line against all churches and their influence on government. It was a hint of things to come.15

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By the 1930s, it was a rare liberal Protestant academic who recognized the danger in these developments and spoke out against them. One was F. Ernest Johnson—an unusually independent-minded theologian at Columbia’s Teachers College. Perhaps the only member of the faculty who partly questioned John Dewey’s thought, he also worried about liberal demands for limiting the influence of the Christian church: To seek to limit the influence of the church to its own membership is no more reasonable than to apply the same rule to business. Business leaders take for granted the right to influence public opinion; likewise the labor movement and the professional associations. The right is incontestable if the methods are open and honest. So the church may properly influence public opinion if in so doing it is making effective a body of convictions deeply held by the people whom the church represents.

If businesses could influence the public, why not churches?16 Increasingly, however, Americans were equally suspicious of both business and ecclesiastical influence. A nineteenth-century commentator already observed that “[p]erhaps there is no topic more constantly pressed upon our attention than the influence exerted by corporations upon current legislation, both state and national.” Such fears about the speech, influence, or propaganda of business corporations are usually attributed to progressivism, but they initially, in the early nineteenth century, had evolved in connection with theologically liberal anxieties about the speech of churches, and by the twentieth century, liberal and progressive anxieties about corporate speech were increasingly aligned. Progressives tended to be theological liberals, and as many liberal and progressive concerns gradually merged, all sorts of organizations, whether self-serving or idealistic, came under attack for their speech.17 Of particular interest here is how fears of Catholic political influence lent legitimacy to more systematically liberal fears of all ecclesiastical influence and, then, fears of the influence of all sorts of idealistic associations. The narrow anxieties about the Catholic Church almost inevitably extended to its schools and charities; and because most educational and charitable organizations traditionally had religious connections, the fears of churches in general soon also reached the majority of educational and charitable organizations. Indeed, the underlying concerns about influence seemed directly applicable to all idealistic associations. Hence, the range of organizations subject to section 501(c)(3)’s restriction on “influenc[ing]” legislation. To be sure, the influence of the Catholic Church always remained the model of

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what caused concern, but the implications—for all churches and ultimately all idealistic organizations—would go much further. The Catholic Press A central avenue for the influence of the Catholic Church was the press. Anxieties about dominant power in the press were not exclusively liberal or anti-Catholic; they also, for example, could be anti-Jewish or anticapitalist. Along the way, however, there were distinct and widespread liberal fears about the power of the Catholic Church in the press. From the liberal perspective, the speech of Catholic organizations was not so much an expression of freedom as a threat to freedom. The problem in relation to Catholics was that the Church claimed religious authority and thus seemed to control the minds of its adherents. Beyond Catholics, the problem was sheer intimidation. “Romanism,” Morrison wrote, “has a powerful influence over the public press,” and he worried that it used its speech so aggressively that it that demoralized those who spoke up for Americans. Thus, because of “the dangers that attend free speech and aggressive contention against the constant encroachment, infringement and insistencies on recognition, place and power by Roman Catholics . . . thousands of good men, remain quiet and inactive, who otherwise would speak freely and act aggressively for the preservation of Americanism.”18 Catholics thereby seemed to have won a double victory. As put by George Rutledge in 1914, the Catholic Church simultaneously “dominates the mechanical, distributing, reportorial, and editorial departments of the great papers” and “censors the Associated Press news”—and this “boycott club is held over the management of every newspaper in the land.” The combination of dominance and boycott was a common trope. The 1935 tract Rome Stoops to Conquer explained: Not only have Catholics succeeded in putting their case boldly and frequently before the public, but they have set up virtually impassable barriers against criticism. The hidden influence of the church is used effectively in preventing the presentation of the opposing case. On the plea that criticism of the church is bigotry and intolerance, she “insists,” usually successfully, that American editors close their pages to it.

Catholics thereby forcefully disseminated their own views and used boycotts against Protestant alternatives.19

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Of course, the troubling boycott power of the Church usually consisted of nothing more than the exercise of freedom of speech. Clerics denounced newspapers that attacked the Church and urged church members to boycott such papers—that is, they used the freedom of speech to condemn prejudiced opponents and to urge coreligionists to avoid doing business with them. By such means, however, as put by Theodore Graebner of the Concordia Seminary in 1929, the Church “makes it hard for any paper which exposes the working of the Roman system.” As usual, the underlying theological concern, as explained in 1951 by the New Age, was that “[t]he boycott is one of its favorite means of intimidating its victims and others of free minds.”20 The practical difficulty for liberals of a nativist disposition, at least after the mid-1920s, was that their brand of Americanism seemed to be losing ground, while Catholic publications retained their readership. The Protestant—a nativist magazine published in the 1920s and 1930s in the District of Columbia, largely for members of the growing bureaucracy—worried that Catholic-controlled newspapers and magazines “constantly ply the public with offensive and defensive propaganda of the Roman hierarchy.” Unfortunately, “No patriotic periodical of limited circulation can match weapons so powerful and far-reaching,” for while the patriotic periodicals “reach and enlighten a few score thousand people, the controlled press reaches a hundred million.”21 In 1921, when Catholics paid Pittsburgh newspapers to print what Protestants denounced as “propaganda advertisements,” a Protestant professor asked them to publish his response, but without success—perhaps because he did not offer to pay. Learning of this, the Presbyterian declared: “This kind of thing has gone far enough. Protestantism must assert itself.” On the one hand, it had to “let the hierarchy of Rome know that their full religious liberty will be respected”; on the other “any attempt . . . to spread propaganda by civil or physical means will be stoutly resisted.” It thus “would be well for the fair-minded Catholics to join in repression of all this forced propaganda.”22 In the end, not only Catholic organizations would be asked to repress themselves. During the twentieth century, liberal anxieties about the role of corporations in the media led to limits on advertising—especially for tobacco. Liberal worries about the political influence of broadcasters led to the fairness doctrine, which required them to cover public issues and to provide fair representation of opposing views, and to the equal time doctrine, which required broadcasters who aired candidates to give equal time to their

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legally qualified opponents. All along, however, anxieties about Catholic speech, including Catholic “influence,” were the oldest and most persistent of fears about the speech of organizations. Propaganda The word “propaganda,” which was added to section 501(c)(3) in 1934, loomed large in complaints about the speech of the Church. The word recalled the Sacra Congregatio de Propaganda Fide—the Sacred College for the Propagation of the Faith—and although it increasingly took on much broader significance, especially in World War I, it often continued, at least domestically, to have religious connotations. Indeed, it frequently served as a code word for illegitimate Catholic speech.23 The 1935 book Rome Stoops to Conquer captured the spirit of the complaint when it observed that “[t]he tenseness and moroseness of propaganda pervades all Catholic journals, high and low alike. In general, the Catholic press is a war press and betrays the throbbing militancy and excitement that fills the Catholic camp.” Even at its best—at its most “civilized and cultured”—the Catholic press was “strong and harsh propaganda.”24 Propaganda tended to be understood as the sort of speech that was used when organizations were attempting to persuade dogmatically—when they spoke with a confidence or claim of authority that seemed to override individual inquiry, thought, and judgment. In 1928, the Klansman Paul Winter, who combined his physical brutality with refined liberal sensitivities, explained: “Propaganda is usually the instrument used in diverting the tendencies of a mind from the course that it would normally follow.” Propaganda thus stood in contrast to the toleration espoused by President Calvin Coolidge, who thought: “Toleration in the broadest and most inclusive sense” is “a liberality of mind, which gives to the opinions and judgments of others the same generous consideration that it asks for its own.” Propaganda, in other words, was the opposite of the speech of individuals engaged in open-minded inquiry, with a genuine willingness to be swayed by other points of view.25 This sort of distinction suggested a sharp difference between stultifying and tolerant speech, and between propagandists and thinking citizens. The Fellowship Forum—a periodical allied with the Klan—distinguished Roman Catholicism and Protestantism in 1927 by noting that “one plays upon the ignorance of mankind, and resorts to threats, to intimidation and superstition, while the other’s appeal is to the heart and mind.” On the one hand, the Vatican, as put in the early 1950s by Paul Blanshard, exercised “control

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over the minds of millions of people throughout the world”—above all through “the continuing corruption of human intelligence by systematically cultivated superstition.” On the other hand, Protestants, as explained by Scottish Rite News Bulletin, believed in “the principle of Think-and-LetThink.” In such ways, some speech was tolerant, and other speech was a threat to mental independence.26 Throughout the first half of the twentieth century and beyond, Catholic “propaganda” therefore seemed politically dangerous. The tract Romanism and Ruin complained about the Church’s “powerful propaganda,” which it was using “for the conquest of this country,” not least by “establish[ing] a powerful lobby at our national capital.” Similarly, the New Age worried about “the extraordinary spurt being made by the Roman Catholic Church to impress the world with its position and propaganda.” Even more aggressively, the Klan feared that “[t]he chief weapon of the enemies of the Klan and of Americanism is propaganda,” and it therefore encouraged local klans to establish propaganda committees to fight this danger. More cautious nativists disavowed such extremism and criticized the “anti–Roman Catholic propaganda conducted by newspapers such as the Menace.” Nativists, however, used the word “propaganda” with particular gusto, for they were relying on its religious history to denigrate the attempts of the Church to persuade the public of its views.27 The intensity of this delegitimization of Catholic speech can be illustrated by Proof of Rome’s Political Meddling in America—a booklet published in 1927 by the Fellowship Forum. The pamphlet extensively quoted offending Catholic publications, and then observed that the Catholic Church was trying to “make America Catholic,” by acting “through propaganda and the use of the press, through priestly activities, the influencing of the minds of young, [and] through proselytizing.” Of special concern, there was a “big Roman Catholic lobbying, news- spreading and propaganda- distributing agency in the national capital.” Anxious that the Church had established “a huge lobby and a busy propaganda agency” in Washington, the booklet complained about “the spread of their propaganda” and “their efforts to mold or control legislation” and “sway the minds of those in the executive branch of government.” Similarly, it complained that the Roman Catholic Welfare Conference “is still publishing its propaganda, and issues a monthly bulletin which vehicle for the spread of Romish propaganda and for ‘putting over’ its ideas.” The booklet closed by repeating that the hierarchy maintained in the Capitol “a great and expensive headquarters, with a large force of workers” and that it “set up a press service to put out propaganda and maintain an expensive and active lobby to influence members of Congress.”28

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Far from ending in the 1920s, this sort of assault on Catholics for exercising their freedom of speech persisted, even after World War II. As late as 1963, Protestants and Other Americans United was still protesting that because of “Catholic power over the mind . . . [i]ntellectual freedom is unknown in the Roman Catholic sphere of influence.” The Church thus enjoyed a political force that it used to control Washington: “Whenever any legislation is proposed in the Congress, professional Roman Catholic lobbyists canvass the Representatives and Senators reminding them that 30 million Roman Catholic voters have a particular view on the bill which must be respected ‘or else.’ ”29 Of course, the fears of propaganda reached far beyond the Church, for although the problem could seem centrally Catholic, the danger of thoughtsuppressing speech seemed to come from multiple directions—not only from Church doctrine but also from fascist and communist ideology. These threats to independent thinking particularly troubled liberal educators. Against the Church, they had long cultivated the liberal and nativist ideal of thinking for oneself, and they now worried that it was threatened from secular as well as religious propaganda. A 1943 report on “Liberal Education” and “Its Role in a Democracy,” prepared for the American Council of Learned Societies, contrasted “authoritarian and democratic objectives in education” and worried about the circumstances in which education “ceases to have the character which it ideally possesses in a free society and takes on the character of propaganda”—“that is, the indoctrination of the ideology approved by the state.” Then, “[t]he accent is on belief rather than critical inquiry, on acquiescence rather than on reflection.”30 This sort of reasoning was very appealing as an analysis of liberal education, but in the hands of many educators, it scarcely disguised an underlying anti-Catholicism. For example, in 1944, Conrad Henry Moehlman, a Baptist professor of church history at Colgate, wrote: “Religious education implies authoritarianism, dogmatic postulates, memorization of Bible verses, deduction, symbolism, reverence, solemnity, a holy tone, ritual, ceremonial, images, paintings, catechism, prayer, ministers, priests, the idea of the absolute, faith. Public education, on the other hand, is based on personalism, experimentation, tabulation, induction, facts, courage, work, tests, blackboards, problems, efforts, teachers, the idea of the relative, textbooks, microscopes.” More harshly nativist liberals were more blunt, and after World War II they continued to warn: “Watch out for the propaganda cliches” of the Church. Scottish Rite commentators in the 1950s complained about how parochial schools “indoctrinate their children with the false and sinis-

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ter propaganda of Rome” and in more solicitous moments they expressed concern that “[g]roups of people often victimize themselves with their own propaganda efforts.”31 The liberal stance against Catholicism thus gave currency to anxieties and ideals that could not be confined to the Catholic Church. Gerald Birney Smith, a professor at the University of Chicago Divinity School, explained in 1919: “The adoption of a democratic spirit in Christianity means the development of intelligent citizenship rather than the inculcation of dogmatic propaganda.” Generalizing about the Christian church, he concluded that, “in a democracy, the church . . . must attempt no autocratic domination of politics.” On such principles, as will be seen, not merely the Catholic Church but all ecclesiastical and related institutions, notably schools and charities, had to refrain from asserting their authority. Whether in legislation or elections, and whether expressed in terms of “influence” or “propaganda,” the fears that became popular in the agitation against Catholic speech would have consequences for all churches, schools, and other idealistic organizations.32

Calls for Limiting Influence and Propaganda Liberals sometimes gave expression to their anxieties about the influence and propaganda of idealistic associations by suggesting limits on their speech. Although it cannot be assumed that the proposals discussed below prompted section 501(c)(3)’s restriction on influence and propaganda, they clearly reveal where liberal anxieties could lead. The Cascade of Demands The demands for limits on the speech of churches came toward the end of a cascade of anti-Catholic demands. For a century, nativists had requested a series of severe restrictions aimed at Catholics, and as each type of restriction came to be recognized as implausible, nativists turned to less improbable limitations. Many persons who took a liberal stance were thus accustomed to seeking restrictions on freedom, and the limitations on speech were by no means the most severe. The Catholic Church had long seemed to justify harsh measures, such as barring Catholics from voting. Such was the position taken by the nativist politician Thomas Whitney, who (as already seen in chapter 3) declared: “The exercise of the right of suffrage is, in its legitimate sense, an intellectual

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act; and the conferring of that right upon minds like these—minds incapable of understanding the purport or power of the ballot—seems little less than an act of madness or imbecility.”33 Even if it was increasingly improbable to bar Catholics from voting, there remained the possibility of prohibiting them from serving in public office. The American Protective Association in the 1890s declared itself “opposed to the holding of offices in national, state, or municipal government by any subject or supporter of such ecclesiastical power.” From this point of view, many nativists hoped to keep Catholics out of legislative, executive, and judicial offices.34 b If this, too, was unlikely, nativists could hope to bar Catholics from influencing the minds of future citizens and officials. Again, the American Protective Association was typical in protesting “against the employment of subjects of any unAmerican ecclesiastical power as officers or teachers of our public schools.” And if Catholic teachers could not be excluded, then at least Catholic children could be forced to attend. Compulsory attendance had the advantage of being facially nondiscriminatory. Nonetheless, in 1925, in Pierce v. Society of Sisters, the Supreme Court held it unconstitutional. And shortly afterward, Al Smith’s presidential candidacy suggested that the Catholic threat to American democracy required a more direct response.35 Thus, speech restrictions came to the fore only after a series of other restrictions came to seem unlikely or ineffective. Speech restrictions were not an entirely novel suggestion. In the early 1920s, for example, the Mississippi mason M. R. Grant urged “the suppression of every Roman Catholic publication.” This was extreme, but such proposals, stated with greater tact, would soon become more prominent. Nativists had been unable to secure direct limits on Catholic influence in the form of barriers to suffrage and officeholding and had been unable to limit Catholic influence on future participants in politics by excluding Catholic teachers and forcibly including Catholic children. They therefore turned to limits on speech, prototypically Catholic speech, but framed more generally in terms of the speech of churches.36 One might think that nothing could be more illiberal. In fact, such b. Liberal anxieties about Catholic judges thus have a long history. Consider these two instances from 1914. In his Center-Shots at Rome, the Reverend George Rutledge of Columbus urged: “Count the Catholics on the bench and at the head of departments in Ohio—number them one by one.” In the same year, a New York masonic publication called Political Romanism protested: “[T]he Chief Justice of the United States is a Catholic and therefore is coerced in the exercise of his duties; and Justice McKenna of the United States Supreme Court is also a Roman Catholic. And there are hundreds of Roman Catholic judges in the United States.”*

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speech limits were profoundly liberal. And a pair of examples from 1930— only four years before the enactment of section 501(c)(3)’s initial speech restriction—can illustrate how the demands for suppression could span the spectrum of theological liberalism. Defining the Political Rights of Churches Among the most prominent of theologically liberal nativists was Hiram Evans, the imperial wizard of the Ku Klux Klan. In 1921, he was among the Dallas Klansmen who whipped a black bellhop, Alexander Johnson, and burned the letters “KKK” into his forehead with acid. But as Evans rose in the organization, he made himself respectable, even becoming a member of the Congressional Country Club, where he consorted with Washington’s elite. A former Klansman turned sardonic journalist summarized: “Evans, dentist, thirty-second degree mason, he-man, go-getter, dealer in polysyllabic English, led the order into state and national politics.” Under his leadership, the Klan had become the leading nativist organization in the United States, not least by purveying theologically liberal ideas in opposition to the Catholic Church. Although the Klan had nearly collapsed by 1930, Evans still asserted its positions, repeatedly attacking the Church on “liberal” principles for its threat to “democracy,” and of particular interest here is his proposal in that year for action against the Church’s propaganda.37 Unlike a “democratic church,” Evans explained, an “autocratic church directs the opinions and consciences of its members on all matters which it believes involve morals as well as religion.” As a result, “in the politics of a democracy the consciences of Catholics are not their own; their church does not allow them to be politically free.” Such a church was a threat to democracy, for it interfered with “the essential democratic function of free expression of the will of the people.” As so often in liberal thought, group speech threatened the free expression of the people, and this was the preface to demanding restrictions on the free expression of the Church.38 In response to the threat, Evans thought that “[a]ny church which itself violates the principle of tolerance should thereby lose its own right to tolerance.” Of course, liberals “believe in free thought and free speech,” and “shallow ‘Liberals’ ” were therefore often inclined to “tolerate the Catholic propaganda on these grounds.” It was a mistake, however, to “refuse to see that [the propaganda] is founded on denial of free thought and speech to Catholics themselves, and aims at a denial of those rights to all men.”39 Rather than crudely argue that the Catholic Church should be denied its speech rights, Evans more subtly concluded that there needed to be a

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clarification or definition of the rights of churches. He took the progressive line that constitutional rights were open to being specified in legislation (that “they could not be enforced in practice till they had been given detailed definition through legislation”), and this left room for a majoritarian redefinition of minority rights. Catholics had claimed that “their political campaign against American principles” should be “tolerated in the name of religion,” and this question could be largely put to rest “by the simple process of definition of rights.” Thus far, Evans worried, there had not been a clear enough “standard by which the political activities of Catholicism could be measured against American principles.” He therefore proposed that there be legislation to provide unmistakable answers to questions such as: How far may a church go in teaching disloyalty to the American government as a religious principle? How far may it go in inculcating opposition to the principles on which our government is founded? . . . Can it be allowed to organize political machinery on a religious basis? May it use its spiritual authority to coerce voters or members who are in public office?

Evans probably did not anticipate that his questions would be resolved in federal tax law, but his last question in particular, about the coercive effect of spiritual authority in elections and legislation, directly anticipated section 501(c)(3)’s two restrictions on speech.40 Not merely a technical question of rights, the definition of American principles was a matter of political philosophy. “The outcome for which American Liberals must work throughout the conflict is the re- creation of unity of national mind and character in America,” and this was to be “brought about” by “the conversion of Catholics to American principles.” Tellingly, this conversion to obtain “conformity with American principles” was to be accomplished by law—by means of an “accurate definition of principles, so that Catholics may understand exactly the political philosophy we offer them.”41 This centrally meant “codification of the rights and duties of churches under the principle of the separation of church and state.” Anticipating the sort of restrictions adopted in section 501(c)(3), Evans proposed that the law should define “[t]he legal position of all churches in respect to the State, to their members, and to each other, together with their duties toward the State and the precise limits of their right to political activity either directly or through religious power over their followers.” Put forcefully, the goal was

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to “hit political Catholicism”—so that Catholicism would be “forced” to “stop its teaching of anti-Americanism and permit the Americanization of its members.” Put philosophically, “we must make Catholics know the American meaning of freedom, equality and Liberalism.”42 It is revealing that even the imperial wizard of the Klan did not frame his proposal narrowly in terms of defining the rights of the Catholic Church. Instead, he took a broader liberal stance against propaganda from all churches. The Klan had flourished under his leadership as a theologically liberal organization that transcended particular Protestant denominations. Evans, for example, had complained in 1924 that American churches and their creeds had undermined the pursuit of truth, including the news, and replaced it with propaganda: Many of our churches are become bickering centers and sources of ceaseless, strife-engendering controversy, fighting not the forces of evil, but each other, church against church, creed against creed. Out of it all, and because of it all, there has almost ceased to exist that priceless boon to humankind known as news; propaganda, the modern curse of civilization that spawns prejudice and nurtures injustice, has taken its place. Our modern wilderness is full of darkness.

It thus was very much in accord with Klan principles that Evans proposed clarifying the rights and duties of “all churches,” including “the precise limits of their right to political activity.”43 Persuading the Public That Foundations Were Not Propagandizing Another, more genuinely ecumenical (but no less troubling) suggestion came from Frederick Keppel. He was president of the Carnegie Corporation, and in 1930 in his influential little book The Foundation, he urged the men running foundations to take the liberal stance of avoiding propaganda, lest they face legislation denying their organizations tax-exempt status. Keppel understood that foundations were at risk from liberal and progressive fears about their concentrated wealth—in particular, about their potential to use propaganda to achieve an intellectual monopoly. Such anxieties had developed with theological liberalism and eventually became a staple of progressivism. Recognizing the concerns, Keppel observed: “What lies behind the fear of the concentration of great funds in the control of a comparatively small number of people is of course the possibility that the income from funds of this size may be so directed as ultimately to create a

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nation-wide limitation upon the freedom of human thought and human action.” And such fears about foundations were prompting demands for limiting their wealth or activities.44 Keppel responded to the danger by suggesting that foundations were in the process of abandoning their earlier attempts at “the direction of public opinion,” which he called “propaganda.” This sort of pursuit of preconceived views, without openness to rethinking them, was what liberals feared in conventional religion, especially Catholicism, and what now was feared in foundations. These organizations, Keppel reassuringly explained, were already changing their tune: Propaganda was, of course, of the essence of the religious foundation which preceded the modern type, and twenty years ago, if any board were unanimous in regarding as socially desirable the spread of a given opinion, there was no hesitation in taking action in supporting this spread. The [Carnegie Corporation] reports of early years are full of examples, but as one follows the record through succeeding years, it is evident that the realization is coming that while deliberate propagation of opinion is a perfectly legitimate function for the individual, it is not the wisest way to use funds that are tax-exempt and therefore “affected with a public interest.”

Keppel was speaking only of foundation policy, not national policy, but he recognized some increasingly popular liberal assumptions: that the propagation of propaganda by religiously motivated organizations might be viewed as dangerous; that although initially a problem with churches, it might be considered a problem with other organizations, including foundations; and that public interference with foundations might be justified on the theory that there was a public interest in tax-exempt funds.45 c Although Keppel’s rejection of illiberal propagandizing was an expression of his own liberal views, it more immediately was his precautionary defense of foundations. He did not want foundations to be accountable to the government for the speech they supported, but he was sophisticated c. In delegitimizing the propagation of old- style truths—those consisting of religious or moral opinion—Keppel had no desire to debar foundations from spreading new-style scientific truths. He therefore hastened to distinguish indoctrination in “opinion,” which presumably stifled independent thought, from “indoctrination” in “facts,” which allowed individuals to think for themselves. Foundations could still engage in the “distribution of facts from which men and women may draw their own conclusions.” Here “indoctrination of the public” was fully justified. Of course, so sharp a distinction between opinion and fact is often elusive, and Keppel understood that it is “much easier to announce principles of this kind than to apply them in actual cases.”*

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enough to understand that foundations had to bow to liberal opinion or risk destruction. A few years earlier, Keppel had bluntly explained the tax vulnerability of foundations: After all, the fundamental safeguard against the unsocial use of these funds lies, in the long run, in public opinion and the possibility of public control. The apparent immunity of those who direct them lies in the freedom from taxation which the foundations enjoy, but there is nothing irrevocable about the present exemption of such bodies, and the community, if at any time it felt so disposed, could tax an offending foundation, or all foundations, out of active existence.

Keppel therefore considered it important not merely to maintain “public confidence in the makeup of foundation boards,” but more fundamentally to convey “as wide an understanding as possible of what the foundations do and how they do it.” And in a liberal society, this meant persuading the public that foundations were not engaged in propaganda—the attempt to spread any given opinion.46 Thus, to avoid being annihilated for propaganda or illiberal speech, foundations not only had to avoid such speech but also had to use their speech to persuade a liberal public that they were not propagandizing. This was a large part of what Keppel aimed to do in his 1930 book. To avoid public anxiety and anger about propagandizing, he engaged in his own propagandizing. Evans and Keppel were very different: one led the Ku Klux Klan, the other, the Carnegie Corporation. Tellingly, however, in 1930, both took liberal stances on the need to limit propaganda from idealistic groups. Although it cannot be assumed that their writings contributed to the adoption of any part of section 501(c)(3), their ideas about the possibility of suppression are suggestive about what was in the air. Liberal Diversity and Unity The similar concerns of Evans and Keppel are suggestive about the diversity and unity of American liberalism. Each man was the most prominent in his sphere of American life, and although these spheres were far part, both men understood the popular liberal anxieties about the influence of organizational propaganda in a democracy. To be sure, Evans hoped to stir up such anxieties and Keppel desired to assuage them, but they each, in their own way, saw that liberalism might require limits of some sort on the propaganda of idealistic organizations.

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The organizations, moreover, that attracted their attention—churches and foundations—were not that far apart. Although theological liberalism had initially developed in response to churches and their threat to independent thought, churches were not the only associations to pose this danger. Most private schools were religious, whether Protestant or Catholic, and even public schools tended to be generically Protestant in their ceremonies and tone. Similarly, many charities and foundations were at least loosely religious. As a result, Keppel’s worries about propaganda from foundations, and about the possible political reaction, cannot be considered entirely distant from the theologically liberal concerns about the propaganda from more obviously religious institutions. Put more generally, government limits on ecclesiastical speech and the self- restraint of foundations to avoid government limits both reflected broader liberal anxieties about group speech and influence. Although theological liberalism developed in America in opposition to particular orthodoxies—conceptually, against Catholicism and as a practical matter, against the remnants of Calvinistic orthodoxies—it was based on more general ideas about the danger to individual mental freedom from any sort of orthodoxy. Thus, when Americans deployed liberal ideas against the speech of the Catholic Church or of foundations, they seemed to be carrying out broader liberal principles. Far from appearing narrow or prejudiced, these disparate demands for limiting influence and propaganda seemed, when phrased broadly, to be part of the long-standing liberal movement that aimed to protect individuals from authoritative or overbearing group speech, regardless of whether it came from churches, schools, charities, or other organizations. It thus makes sense to understand liberalism as a whole, even while recognizing its diversity. Liberalism manifested itself in very different tendencies, but these evidently could run in a similar direction, albeit some went further than others. Liberal fears could focus on the speech of the Catholic Church or on the speech of all churches, on the speech of foundations or on the speech of all idealistic organizations. Overall, however, there was much agreement on the need to curb the influence of propaganda in a democracy.

The Adoption of Section 501(c)(3)’s Restrictions on Propaganda to Influence Legislation After so much popular anxiety that the Catholic Church, the churches, or more broadly idealistic associations threatened independent thought and democracy, it is hardly surprising that Congress, in section 501(c)(3), restricted their political speech. Nor is it surprising that one of the restrictions

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even spoke in terms of “propaganda” and “influence” on legislation. This chapter therefore closes by examining how Congress adopted this restriction (leaving the campaign speech restriction for the end of the next chapter). 1919 IRS Regulations The anxieties underlying the congressional restriction on influencing legislation were sufficiently pervasive in America that, even before Congress suppressed such speech, the Bureau of Internal Revenue acted on its own. As early as 1919, the bureau explored the sort of suppression that Congress would apply more broadly in 1934. The Internal Revenue Code did not initially include any restriction on influencing legislation. The 1894 federal income tax statute—the first adopted after the Civil War—already had specified, without any speech restriction, that it did not apply to “corporations, companies, or associations organized and conducted solely for charitable, religious, or educational purposes.” Similarly, the 1916 War Revenue Act exempted, without speech limits, any income received by any “[c]orporation or association organized and operated exclusively for religious, charitable, scientific, or educational purposes.” To this, the 1917 Revenue Act added deductions for contributions to such associations, again without speech constraints. Congress thus enacted no statutory foundation for suppressing speech, but it used the word “educational,” and this would soon become an opening for a theologically liberal restriction.47 In the immediate wake of the statutory provisions, in 1918, the Bureau of Internal Revenue recognized that they did not limit speech. The American common law on charities had not treated petitioning and other political speech as incompatible with charitable status—as long as the speech was in pursuit of an organization’s charitable purposes. The bureau therefore interpreted the revenue statutes to exempt even those educational associations that devoted themselves to educating the public on matters of legislation. Similarly, the bureau interpreted the revenue statutes to permit deductions for contributions to such associations. The work of such associations was “propagandist, but nonetheless educational.”48 In 1919, however, the Bureau of Internal Revenue reversed itself by issuing regulations declaring that “associations formed to disseminate controversial or partisan propaganda are not educational within the meaning of the statute.” In thus defining educational associations to exclude those that issued “propaganda,” the bureau introduced an initial version of what would become section 501(c)(3)’s speech restrictions.49

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The 1919 regulations have puzzled historians. Why did the bureau change its interpretation? Why did it abandon the traditional American common law on charities? Put substantively, how did much political speech— “controversial or partisan propaganda”—come to be viewed as incompatible with the educational character of an organization? If such speech was espoused for educational ends, why was the organization not educational? At least part of the explanation can be found in theology. Theological liberals had long viewed education in contrast to indoctrination or propaganda. What they condemned in religion and therefore also in education was any attempt to instill authoritative knowledge—whether creeds, doctrines, or other orthodoxies. A real education, they believed, had to leave room for children to learn to think for themselves. On this sort of distinction, it was said that whereas Catholic schools disseminated propaganda or predetermined truths, public schools taught children how to think for themselves. Such ideas had appeared in nativist tracts since the mid-nineteenth century and flourished in the twentieth. Allen Autrey explained in 1911 that “to be a good Roman Catholic you must give up . . . even the privilege of thinking for yourself,” and to avoid this, children had to be sent to teachers “trained in schools of independent thought.” Such teachers, of course, were those of public schools, and across the liberal spectrum during the early twentieth century, theologically liberal commentators, from John Dewey to members of the Klan, insisted that public schools were the place where (as put by a Klan pamphlet) children learned “how to think, not what to think.” From this perspective, education left no room for propaganda, and on the basis of this theologically liberal distinction, the Bureau of Internal Revenue in 1919 interpreted “educational purposes” as excluding propaganda.50 The next year, indeed, the solicitor of internal revenue explained this restriction in theologically liberal terms: “The prime purpose of education is to benefit the individual. On the other hand, the primary purpose of propaganda is much more narrow. Propaganda is that which propagates the tenets or principles of a particular doctrine by zealous dissemination.” Thus, “propaganda in the popular sense is disseminated not primarily to benefit the individual at whom it is directed, but to accomplish the purpose or purposes of the person instigating it.” The solicitor therefore concluded that it must have been the intention of Congress, when permitting the deduction of contributions to educational associations, “not to encourage the dissemination of ideas in support of one doctrine as opposed to another, . . . but to foster education in its true and broadest sense, thereby advancing the interest of all, over the objection of none.”51 This was the beginning of liberal conformism in tax law. By excluding

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the zealous espousal of a particular doctrine, the Bureau of Internal Revenue made theological liberalism a measure of tax exemption, and by excluding education that provoked any objection, it adopted the most conformist version of this liberalism—a version that imposed a consensus at the cost of outlying opinions. Liberals (including, of course, those with nativist leanings) had long contrasted liberal views of education and Catholic propaganda, and now the contrast between education and propaganda became part of the bureau’s definition of exempt educational associations.52 This is not to say the 1919 regulations or the bureau’s understanding of them were narrowly anti-Catholic. On the contrary, anti-Catholicism merely provided the vocabulary for a broader liberal assault on the espousal of particular doctrines. It therefore is hardly surprising that the bureau used its interpretation of the statute against labor organizations and other associations that engaged in “propaganda.” For example, its first case to reach the appellate courts—the 1930 decision in Slee v. Commissioner—concerned the “propaganda” of an anti-Catholic organization, the American Birth Control League. “Propaganda” was a code word for a much feared type of speech, and in adopting this word as a measure of exemption, the 1919 regulations responded to liberal anxieties about the full range of private group speech that seemed to be propaganda. 1934 Congressional Restriction The 1919 regulations were only the first step. They were an administrative attempt to define the exemption of educational associations. Later, in 1934, Congress imposed a much broader statutory restriction on “propaganda” and “influence” by the full range of idealistic organizations.53 The year before (as most fully elaborated in the scholarship of Oliver Houck), Senator David Reed had hoped to enact generous benefits for veterans. This Republican senator from Pennsylvania, however, faced fierce opposition from those who wanted the government to reduce its spending. The National Economy League was particularly harsh in its criticisms, and it eventually prevailed.54 Reed responded to this loss as might be expected of a senator: he led the effort to amend the Internal Revenue Code to prevent the league and other such institutions from ever again interfering again in congressional business. Reed and the Senate Committee on Finance proposed the initial version of what became the restriction in sections 501(c)(3) and 170(c) on influencing legislation: that an organization would be exempt and contributions to the organization would be deductible only if “no substantial part” of its

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activities consisted of “participation in partisan politics” or “carrying on propaganda, or otherwise attempting, to influence legislation.”55 Reed made explicit that he was taking aim at his nonprofit opponents, and he put it in the best light by emphasizing the problem of charitable deductions. The question came up in debates about what would become section 170(c). Reed explained that there was “no reason in the world why a contribution made to the National Economy League should be deductible as if it were a charitable contribution if it is a selfish one made to advance the personal interests of the giver of the money.” Thus, as today, the deductibility of donations to nonprofits served to justify the suppression of their First Amendment freedoms. It is an excuse that (as will be seen in chapter 13) deserves careful scrutiny.56 Reed was uncomfortable with the provision as it came out of committee because it applied to all nonprofits. It thus went “much further” than preventing the misuse of deductions, for it might adversely affect all sorts of “worthy institutions”—apparently meaning those whose propaganda to influence legislation seemed desirable. He therefore agreed to let the amendment wait for further consideration. When the amendment came to the floor again, however, no one could think of better phrasing, and the Senate adopted the proposal as it stood.57 The only caveat was in the extent of the disqualification. The initial version of the restriction included phrasing barring nonprofits from “participation in partisan politics”—a limitation that would have satisfied the most ambitious nativist and other liberal demands for silencing churches and other idealistic organizations. The final version, however, dropped this, leaving only the language that responded to the narrower anxieties about propaganda to influence legislation. Thenceforth, federal tax law exempted nonprofits, and allowed deductions for contributions to them, only if “no substantial part” of their activities consisted of “carrying on propaganda, or otherwise attempting, to influence legislation.”58 A rare repudiation of this restriction on influencing legislation came from the Chicago Tribune. Recognizing that the purpose was to “discourage propagandist organizations,” the Tribune commented that although it had “little use for many organizations of this character, we do not believe it is possible to distinguish the good from the bad in a general law and we gravely question the advisability of trying to do so.” The amendment thus came “dangerously close to being a restriction on the freedom to assemble and petition the government for a redress of grievances.”59 As might be expected, Reed’s response to the National Economy League and its “propaganda” to “influence legislation” had the desired effect. Less

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than three months after his amendment came into effect, the IRS revoked the league’s tax-exempt status.60 It is troubling that section 501(c)(3)’s restriction on influencing legislation entered the Internal Revenue Code in 1934 when a senator became frustrated with the political speech of Americans who opposed one of his legislative proposals. Reed and his fellow senators evidently resented being on the receiving end of First Amendment freedoms—at least as exercised by idealistic associations—and they therefore substantially limited such associations from again intruding their ideals on legislation. Even more worrisome, Congress acted in the context of powerful theological and ideological anxieties. To understand the pervasiveness of such concerns, one might consider that two-thirds of the Senate (including Reed) and 70 percent of the House of Representatives were masons of one sort or another. Although many masons (including Reed) opposed crude attacks on Catholics, many (also including Reed) thought Americans of the “old stock” had reason to worry about Catholicism. Most masons, moreover, shared liberal anxieties about the authoritative or propagandistic speech of churches and other idealistic associations—anxieties that were modeled on fears of the Catholic Church. Amid these theologically derived concerns, and at a time when many idealistic groups were religious, it could seem entirely reasonable, even desirable, to discourage idealistic associations from carrying on “propaganda” or otherwise attempting to “influence legislation.” The danger of oppression seemed to lie not so much in legislation taxing their political speech as in their speech that attempted to influence legislation.61

( This chapter has offered an initial slice of the evidence that section 501(c) (3)’s restrictions on speech gave effect to liberal anxieties. Although the anxieties and the suppression prototypically focused on the speech of the Catholic Church, they more generally concerned the speech of all sorts of idealistic associations, for many were religious, and all might exert the sort of intellectual pressure or influence exemplified by the Catholic Church. It is particularly clear that section 501(c)(3)’s restriction on influencing legislation responded to liberal anxieties, for in speaking about “propaganda” and “influence,” the section echoed the very terms of liberal fears. This, however, is only the beginning, for there is more evidence to come.

FIVE

Segregation

Section 501(c)(3)’s restrictions did not flatly silence idealistic agencies, but rather segregated their speech from the central political avenues for choosing and persuading legislators. Critics of section 501(c)(3), such as Richard Garnett and Edward Gaffney, have observed that it segregates religious organizations and their speech from politics. This chapter pursues this point about segregation as to the full range of idealistic associations, and considers whether, in addition to being a contemporary critique of section 501(c)(3), it also has a history.1 The evidence reveals relationships among three sorts of segregation. One sort was religious. Although the notion of segregation is nowadays associated with race, it once was at least as familiar in the context of religion. Many nativists and other liberals had long condemned Catholics for segregating their children in parochial schools and thereby threatening democracy, and in response such liberals demanded religious integration in public schools. When this movement for religious integration became unrealistic in 1925, the underlying liberal anxieties persisted—indeed, after Al Smith ran for president, they only increased—and they found an outlet in the segregation of speech.2 This second type of segregation, which tended to be justified in terms of the separation of church and state, aimed to keep the speech of religious and other idealistic associations out of politics. There was nothing new about this goal, but the inability of liberals to fend off the Catholic threat with religious integration intensified liberal ambitions for segregating the speech of idealistic organizations from politics—aspirations that were given substantial effect by section 501(c)(3)’s speech restrictions. Last but not least, the liberal anxieties about religious segregation also

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had consequences for a third sort of segregation, involving race. McGreevy has already laid the foundation for this point, but it can it be pursued further, especially as to nativists. In condemning voluntary religious segregation in private schools, nativists and other theological liberals developed broad ideals about educational integration in public schools, and these ideals soon became significant for the rejection of racial segregation.3 It may seem disconcerting that these three sorts of segregation—regarding religion, speech, and race—were so closely intertwined. But the connections are important, for they reveal much about the intensity of the demands for the segregation of speech and about the popular ideals that underlay racial desegregation. It was amid the hopes for the second sort of segregation that Congress imposed section 501(c)(3)’s speech restrictions—in the 1934 curb on “propaganda” to “influence” legislation, and (as will be seen toward the end of this chapter) in the 1954 limit on campaigning. Congress thereby largely completed its segregation of the speech of idealistic associations from the central pathways for choosing and persuading government.

Religious Desegregation Underlying the segregation of the speech of religious and other idealistic organizations from politics were liberal anxieties about religious desegregation. Fearing the influence of the Catholic Church over its adherents and thereby also American government, many nativists and others with theologically liberal tendencies thought they could solve the problem by preventing the segregation of Catholic children in parochial schools. If such children could be forced into public schools, where they would be integrated, the Catholic problem would eventually come to an end. After the Supreme Court’s 1925 decision in Pierce v. Society of Sisters, however, compulsory public schooling became implausible, and the Catholic problem therefore seemed to require another solution. Many nativists and other theological liberals still worried about religious segregation, but being unable to prevent Catholics from transmitting their beliefs to their children, such liberals took another approach: the segregation of the speech of churches and other idealistic organizations from politics. The catalyst that clarified the need for this approach was Al Smith’s presidential run. In this context, rather than address the Catholic danger by vainly trying to prevent religious segregation, theological liberals increasingly found a solution in another sort of segregation.

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Liberal Anxieties about Segregation Since the nineteenth century, many nativists and other theological liberals had worried that Catholics were segregating themselves from the rest of American society. This seemed evident not only in Catholic resistance to intermarriage but also, more seriously, in Catholic insistence on parochial education. Public schools tended to be generically Protestant. Therefore, to avoid having their children Protestantized in public schools, Catholics—the poorest of white communities—spent vast sums to establish parochial schools. Many theological liberals saw this as a dangerous separation or segregation. The nativist politician Hiram Ketchum had already protested, in 1856, that Americans had to respond when Roman Catholics “separate their children from ours in the schools.” The depth of such worries can be illustrated by an 1888 complaint from Henry George, the political economist. He began with a conventional liberal complaint: “Nothing can be more pernicious in a country with a popular form of government than religious schools; and this is not because they teach religion, but because, necessarily, and totally irrespective of what is taught in them, they foster bigotry and engender prejudice.” On the other hand, public schools “bring together children of all creeds and classes and thus wear away the prejudices that must inevitably arise where children of one creed or class are kept from association with children of other creeds or classes. People hate each other and despise each other just in proportion as they are kept separate from each other.”4 For a while, in the early twentieth century, some Catholics imagined that the “old prejudices against the Catholic school” were passing away—that old fears of parochial schools, “as segregating the Catholic child from the Protestant; as raising a barrier, between future citizens; as alienating their pupils from the Republic; as inculcating disloyalty, have happily disappeared from well-informed minds.” This was optimistic.5 In the early 1920s, the Scottish Rite, Southern Jurisdiction, became openly anti-Catholic and joined with the Ku Klux Klan to press for compulsory public education in opposition to segregated parochial schools. The Southern Jurisdiction of the Scottish Rite was the dominant masonic organization in the United States, with adherents across the South and West, and it opened fire in 1920 by resolving: “We approve and reassert our belief in the free and compulsory education of all the children of our nation in public, primary schools, supported by public taxation.” The Klan soon followed with pamphlets insisting that the public school is “the most essential of all American institutions,” and that “public school education is demo-

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cratic education.” The Klan therefore believed that “the agencies and objects of education should be publicly controlled—that such is the fundamental function of the State.”6 Nativists repeatedly supported this campaign by arguing that, as put by the New Age, “[t]he parochial school idea is undemocratic and makes for separation.” When Eli Forsythe, an anti-Catholic preacher, condemned Lutherans in a Rail Splitter pamphlet for joining Catholics in defense of private schools in Michigan, he protested that to “force a large number of our children out of our public schools and segregate them for purposes of the most laudable character, is in itself a crime against democracy.” Why? “To segregate a portion of our child life and educate it separately along religious lines . . . is to maintain in our democracy the most fruitful source of religious bigotry, suspicion and bitterness.” Put simply, “The schools of a democracy make democratic citizens. A non-democratic institution will not make democratic citizens.”7 The very existence of segregated parochial schools, moreover, seemed an affront to democratic education. As Forsythe explained, whenever “any individual or group” organized “another school to take the place of our democratic public schools, such an act is ipso facto, a contention that the state school fails in some manner.” Of particular concern, to “segregate any child from its fellows” on religious grounds was to perpetuate the belief that there was a “contradiction between religion and democracy.”8 The campaign for compulsory public schooling came to an end when this remedy for segregation was held unconstitutional in Pierce v. Society of Sisters. In 1922, the Scottish Rite, the Klan, and the Democratic Party succeeded in securing compulsory education in Oregon. The Society of Sisters of the Holy Names of Jesus and Mary, which operated a variety of Catholic schools, challenged the Oregon requirement in a suit against the state’s governor, Walter Pierce. After the Society of Sisters prevailed in 1925 in the U.S. Supreme Court, the forcible desegregation of parochial schools was no longer a realistic option.9 Theologically liberal anxieties about Catholic segregation, however, did not end in 1925. Although the Supreme Court cut short the campaign for compulsory public schooling, many regretted the decision, and the anxieties about religious segregation persisted.10 One of the most loquacious of those who continued to oppose Catholic segregation was I. N. Kuhn—author of the 1927 nativist tract Danger Ahead. Stop! Look! Listen! Although his book was utterly mundane, it nicely illustrates the intensity of liberal fears. Training for democracy, according to Kuhn, required uniting diverse stu-

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dents in public schools, where they would be prepared “for citizenship in company with the varied groups which go to making an American community.” In this way, “the potential citizens must be taught the principles of democratic society, and learn to understand and to work with their fellow sovereigns.” Put sociologically, “The homogeneity, or the inter-relating of our people demands primarily a public school for all; in which all the children of a democracy shall be educated together.” Accordingly, whatever “causes any church, society, or individual to withdraw its children from our American public school is not in the interest of a pure democracy.” Lest there be any doubt what he was talking about, he asked: “How can a child trained in religious intolerance, be fit for a democracy?”11 These nativist liberal fears could be summed up in terms of segregation. “To segregate any child from its fellows is to raise intuitively in the mind of the child the question: ‘Why am I separated from my companions and made to attend a school other than the American public school?’ ” Hence, the need for integration. In America, “many peoples, many languages, many religions, many tendencies” formed “one democracy,” and all children therefore needed to be educated in “one national school, where the lessons of a pure democracy shall be taught and interpreted according to the constitutional ideal of the people’s welfare.”12 Kuhn, like so many other nativists and other theological liberals, did not shy away from the conformist implications. Public schools were designed to “unify the ideals of the people.” Early Americans “established a democracy in which every citizen should share the responsibilities of the new government,” and this meant having a public school system teaching in “one language,” so that “all could understand each other and have the same ideals.” It was a point to which chapter 17 will return: Catholic segregation seemed so threatening because it impeded the homogenization that seemed necessary for a democracy.13 Midcentury Anxieties about Religious Segregation, and Hints about Denying Tax Exemption The anxieties about religious segregation peaked in the 1950s, precisely when Congress adopted section 501(c)(3)’s campaign restriction and the Supreme Court began to overturn racial segregation. In retrospect, the problem of segregation in that era must have been primarily about race, but for many theological liberals it was about religion and the Catholic threat to ideals of democracy. The separatism of Catholics seemed part of a broader “divisiveness,”

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“prejudice,” and “bigotry”—all of which stood in contrast to the prevailing tone of Protestant gentility and democratic civility. Since the nineteenth century, Protestants had condemned the “divisive doctrines” of Catholics. The Scottish Rite, from the 1920s through the 1950s, complained that “nonAmerican papal schools . . . promote religious barriers, disunity, bigotry and other anti-American trends among our immature citizenry of school age— and even among their elders.”14 Similarly, Paul Blanshard and Protestants and Other Americans United generalized about the Church’s “divisive pattern,” particularly its “separate and segregated school system.”15 In contrast, there was much liberal confidence in the nation’s Protestant character—a belief that “a Protestant tone to government and society was more likely to preserve democracy than relinquishing that leadership to their Catholic rivals.”16 The primary objection to Catholic segregation was that it was undemocratic, and this seemed worrisome because, as put by Conrad Henry Moehlman in 1944, “The religion of the American majority is democracy.” Explaining this in more practical terms, he quoted a contemporary that the “segregation of Catholic or Protestant children by the parochial school” was “inimical to social welfare.” It thus was “often debated” whether such schools were “un-American.” At the very least, “the segregation of children in parochial schools tends to limit the basis of common knowledge and common experience both of which are essential to a common understanding of civic relationships.” Joseph Blau—a Jewish scholar of religion at Columbia—summarized in 1954: “You cannot practice democratic living in segregated schools.”17 Of course, there really was much Catholic segregation and internal homogenization, and much of it was strident, but American Catholics, in their own ways, were as engaged with the broader American society, and as internally divided, as other Americans. Rather than anti-American resistance, Catholic “separatism” was often the attempt of Catholics to avoid having their children Anglicized and turned into liberal Protestants in the name of democracy. Nonetheless, many liberals responded that Catholics should be educated in public schools along lines that were not far from religious. As Moehlman acknowledged in 1951, “Religion has never left the public school classroom. It has only been adjusted to the new synthesis which is replacing the medieval synthesis—the synthesis of science, democracy, and ethically evaluated religion.”18 Exactly how the problem could be solved without overturning Pierce was unclear, but the possibility of other coercion, including the withdrawal of tax exemption, lurked in the background. In his 1951 book Democracy and

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the Churches, James Hastings Nichols hinted about tax consequences for schools that strayed too far from the democratic line. Like so many others, Nichols thought “the parochial school system was simply a conspicuous manifestation of the general Catholic policy in America of living in a selfimposed cultural ghetto.” The Catholic Church in its schools “maintained a nondemocratic political tradition”—“preventing by segregation that development of personal community relations in which democratic discussion would later flourish.” He therefore was all the more concerned that the teachings of such schools were “not subject to scrutiny or discussion by the community, but were settled by the representatives of an alien absolute ruler without any sympathy for democracy.” And this led to questions about tax exemption.19 On the whole, the American people were “still willing to exempt these schools from taxation and to account them satisfactory equivalents for public schools in meeting compulsory education laws, with only perfunctory inspection of their performance.” This, however, was contingent— partly because of liberal resistance to “efforts to subsidize these schools out of tax funds,” and more broadly because there was “considerable resentment” about “the effect of these confessional schools in weakening the public schools in many communities.” Americans could not, after Pierce, prevent Catholics from segregating their children, but there were other potential responses, including the possibility of cutting off tax exemption.20 The Conant Controversy In 1952, at a meeting of the American Association of School Administrators in Boston, President James Conant of Harvard gave a speech on the dangers of segregation. Although the controversy that ensued was not of major significance, it is revealing as to how nativist anxieties about religious segregation were widespread among the liberal elite of educators. Conant viewed public schools as “instruments of our democracy,” and he feared that “a dual system of secondary education”—in particular, an “increase the scope and number of private schools”—would “threaten the democratic unity provided by our public schools.” Like Nichols, although Conant was partly concerned with the danger of “tax money flowing in some form to private schools,” he more basically objected to the “founding of a new independent school in a locality,” as this would draw students out of the public schools, which were essential for reconciling “uniformity and diversity.”21 Although Conant said that he sought “both uniformity and diversity in secondary education,” he made clear that this meant having diverse Ameri-

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cans educated primarily in public schools, whose democratic ideals would produce the necessary uniformity. There was to be diversity of educational “experimentation” by maintaining “local responsibility” for public schools, but Conant did not recognize the value of private schools, for in challenging public schools, their diversity seemed to threaten the nation’s unity. Thus, when Catholics balked at being homogenized in public schools, he regretted that “they are too little willing to make the sacrifices required to maintain our schools as effective instruments of our democracy.”22 Conant’s ideas substantially echoed those in nativist and other liberal tracts of the prior decades. Whether or not (as alleged) he was a thirty-thirddegree mason, he would have been familiar with masonic and other nativist literature, and his speech repeated nativist tropes about the Catholic threat to public schools. There is, for example, a considerable overlap between the arguments in his speech and those in books such as Kuhn’s Danger Ahead: Stop! Look! Listen! Conant, however, did not allude to such literature, and his tone was studiously moderate and urbane.23 Others at the 1952 meeting were not so restrained. The president of the American Association of School Administrators, Kenneth Oberholtzer, complained that the dual system of schools was “divisive” and that “the ideas or philosophy behind the nonpublic schools” was “dangerous.” Dr. Worth McClure—the association’s executive secretary—protested that “denominational schools build prejudices, they build little Iron Curtains around the thinking of people.” These schools could therefore “destroy the unity now found in our democracy.” Dr. Edgar Fuller—executive secretary of the National Council of Chief School Officers—argued that “there are two types of segregation in this country”: The first, he declared, is found in the Southern states and is based on race. The other, he added, was the one referred to by Dr. Conant and was based on “fundamental beliefs.” Of the two, he held that the latter was more damaging to the democratic tradition. The segregation in the seventeen states is being gradually solved. . . . The trend is hopeful. In the other case, though, it is found in all forty-eight states. It opposes the idea that all the children should be brought up together in a democracy.

Worst of all was the speech of these nonpublic schools, for they were “divisive” and “emotional in their attacks on our public schools. There is our real problem.”24 In the ensuing controversy, Conant denied that he had used the word

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“divisive.” And he had a point, for he apparently had spoken in more positive terms, unctuously demanding “uniformity.” He also made light of a critical cartoon that went much further than he deserved—a drawing depicting Conant alongside Hitler, Stalin, and Tito, with the commentary “Private schools threat to democratic unity.”25 The danger was not a liberal version of foreign tyranny, but something more subtle: the demand that a diverse nation conform to liberal ideals of democracy, as established through public schools. Rather than merely a liberal hope for open-minded inquiry, this was a theologically informed demand that diverse Americans, especially Catholics, submit to the educational “instruments of our democracy,” so that they would conform to the majority’s theo-political consensus. Two years afterward, at the 1954 meeting of the National Catholic Educational Association in Chicago, Catholics responded to Conant by embracing the liberal intellectual ideal: Whereas, the striving for unity in American democratic society is interpreted by some as requiring uniformity of thought and attitudes in our youths, be it Resolved, that our Catholic schools . . . resist conformity to thought which aims to standardize our attitudes, reduce the critical judgment, and abdicate reason in obsequious assent to unworthy patterns of present-day thinking.

The New Age took satisfaction in this “condemnation of conformity of thought” and the conclusion that “unity in America does not require it.” The masonic magazine concluded, however, with the sharp rejoinder that “the history of Romanism runs counter to the meaning of the Chicago resolutions.”26 There was nothing particularly original or even forceful about Conant’s objections to segregation. Instead, what made his speech notable was that it came from the urbane president of Harvard and that it resonated profoundly with so many of his fellow educators and liberals. And what makes it so astonishing nowadays is that the segregation that consumed the minds of men such as Conant was not racial but religious.27

Segregating the Speech of Ecclesiastical and Other Organizations from Politics When nativist liberals failed to desegregate children by forcing them into public schools, their underlying anxieties about the Catholic Church did not go away. Although fears of Catholicism no longer had a realistic outlet

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in religious desegregation, they soon found expression in another form: the segregation of ecclesiastical speech. Especially after Al Smith’s run for president, many liberals hoped to segregate the speech of religious organizations—aspirations that were given effect by section 501(c)(3). Separation of Church (Including Church Speech) from State The theologically liberal attempt to keep the speech of churches out of politics had long been popularly expressed in the slogan “separation of church and state.” This was a rallying cry for many purposes, including the segregation of much religious expression from the political arena, and after the mid-1920s, its limiting implications for speech became all the more salient. Thomas Jefferson and his supporters had already used the idea of separation of church and state to suggest that churches and their minsters should not intrude their ideas into politics. When Republican ministers spoke on behalf of Jefferson in the 1800 election, he and his party had no complaint.28 When, however, Federalist New England ministers preached against Jefferson, he and his supporters condemned them for mixing their relatively orthodox religion with politics. During the election, Tunis Wortman warned Federalist ministers that “it is your duty, as Christians, to maintain the purity and independence of the church, to keep religion separate from politics, to prevent an union between the church and the state, and to preserve your clergy from temptation, corruption and reproach.” Wortman had just published a notable treatise on the liberty of the press, and he therefore recognized that he might seem to be discouraging clergymen from exercising their right to declare their opinions and participate in politics as did other citizens. Rather than back down, however, Wortman suggested that the specialized role of the clergy left them with only a specialized freedom of speech: “[A]s men and as citizens, they have an equal right to express their opinions and give their suffrages; but they should never be permitted to carry their politics into the sacred desk, and more especially, they should not be suffered to make religion an engine of politics.” Such arguments persisted after the election, as when Abraham Bishop asked: “Do our clergy understand politics? Certainly no other class of men is so indifferently informed on that subject.—Whence then arises their right to dictate political opinions?” As for Jefferson, his famous letter to the Danbury Baptist Association interpreted the First Amendment in terms of a “wall of separation between church and state.” Although the letter is widely understood as a statement of religious liberty, it actually repeated a campaign theme designed to badger Federalist ministers into silence.29

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Separation of church and state thus entered American politics as theopolitical slogan. It was a means by which Jefferson and his allies delegitimized the political speech of theologically orthodox clergy—a slogan by which they pressured their theological opponents to suppress their political speech. Jacksonians echoed the idea of separation, but it was nativists who made it popular. Nativists summarized their approach to Catholicism with the principle of separation of church and state—meaning, for them, a narrow separation of the Catholic Church rather than of religion. As a practical matter, this often meant excluding Catholics and their speech from much of public life. Catholic pronouncements, of course, were often extreme, but this hardly justified Protestants in adopting a prejudiced vision of religious liberty. A more broadly liberal vision of separation—akin to that espoused by Jefferson—became prominent when, in the 1870s, a heterogeneous group of the most radical of theological liberals proclaimed themselves “secularists” or “Liberals” and formed the National Liberal League. As noted in chapter 2, these Liberals, like so many other Americans, feared a Catholic “usurpation of power,” and the Liberals thus had much in common with Protestant nativists. The Liberals, however, held that “Catholic usurpation is no more treasonable than Protestant usurpation.” In other words, although they drew on nativist fears for democracy, they extended such fears to all churches. Liberals, for example, protested against a Methodist recommendation that Methodists should vote for only such candidates as had “true Christian character and principles.” The underlying point was that, because of the separation of church and state, a religious organization and, indeed, any distinct religion should refrain from pressing its distinctive religious views in elections or legislation. The National Liberal League, however, did not go so far as to propose legal barriers to keep ecclesiastical speech separate from government; that would come later, when its fears flourished among a broader range of theological liberals.30 In the twentieth century, in the minds of many theological and other liberals, the separation of church and state continued to include the segregation of ecclesiastical speech from politics. As might be expected, liberals typically applied the idea of separation against Catholic speech, but they increasingly condemned all ecclesiastical attempts to direct political affairs. When the churches of South Bend organized in 1912—primarily to defeat the candidates who might repeal the Illinois statute closing theaters on Sundays—the Protestant Magazine protested that such action by the churches was “un- American, and ought to be repudiated by every citizen

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who believes in the separation of church and state.” Although the magazine ordinarily took aim at Catholic influence, it worried that “[n]o consistent protest can be made against Roman Catholic political aggression by those who consent to the same action on the part of Protestants.” It therefore declared: “The same reasons which we give for shutting the Roman Catholic Church out of politics, ought to be sufficient to prevent the Protestant churches from entering the political arena. We protest just as emphatically against Protestant church influence in politics as against Roman Catholic church influence.”31 After the Pierce decision, and especially after Al Smith’s candidacy, the demands for separating the speech of churches from politics came from a wider array of Protestants. It will be recalled that in 1930 Evans sought a “codification of the rights and duties of churches under the principle of separation of church and state.” In the same year, the Joint Conference of Churchmen (consisting of Episcopalians, Methodists, and Presbyterians) found “complete agreement upon the importance of the separation of church and state”—explaining that the “function of the Church” (meaning the whole Christian church) “is not to govern or seek to govern political action, but to further the influence of Christian principles upon society.” Theological liberalism had long been broadening out into a separation of all churches and their speech from politics, and this now became a coordinated Protestant stance.32 In such ways, expectations of the segregation of ecclesiastical speech (both Catholic and Protestant) found expression in terms of the separation of church and state. And as many charities and private schools were religious, it is no surprise that the result would be still broader: a segregation of the speech of churches, schools, and charities.a

a. At least by the 1950s, this segregation of speech may have appealed to liberals as a means of limiting government funding for Catholic and other religious schools. A 1954 article in the New Age quoted Glenn Archer—executive director of Protestants and Other Americans United for the Separation of Church and State—about the threat to the nation’s ideals in “attempts to dominate or intimidate Congressional committees handling bills for federal aid to education.” Funding for education, however, was only one of many issues that provoked liberals to try to exclude Catholic and other religious speech from politics. The same article in the New Age recited the complaints of Dr. Emmett McLoughlin—superintendent of Phoenix’s Memorial Hospital—that “Roman Catholic lobbies, sometimes actually composed of priests, try to prevent the passage of laws in Congress and in the state legislatures that they do not like, and they actively promote laws they do want.” These laws included many “affecting the freedom of belief and action of non-Catholics, such as laws on birth control, divorce, and sterilization.” The grounds for limiting ecclesiastical speech were thus much broader than any one issue, and as has been seen they arose long before the 1950s.*

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Specialized Vision of a Church Notwithstanding the growing breadth of demands for the separation of church speech from the state, hopes for the segregation of such speech from politics often remained profoundly anti-Catholic. Such hopes, moreover, often rested on a Protestant vision of specialization or segregation between religion and politics—a vision that became a part of section 501(c)(3). Since the Reformation, many Protestants had charged that because the Catholic Church exercised political power, it was not really a church but a political organization. Far from dying out in America, this specialized understanding of what it meant to be a church reverberated through nativist and other theologically liberal tracts. When lecturing in 1914 in Cincinnati, George Rutledge declared: “Roman Catholicism is not a religion. It is today what it has been for more than thirteen centuries . . . a gigantic political institution.” From this perspective, the Church and, indeed, any church that participated in politics could not accurately claim to be a church. As put by a “liberal” nativist pamphlet in 1924, “the Church of Rome has become a political party,” and “[n]o church can be an active political organization and honestly claim the immunity of a church.”33 Theological liberals thereby sharply differentiated churches and political organizations—at least, that is, when critiquing the Catholic Church—and this specialized vision of churches would soon enter tax law. It will be recalled that, in 1919, the Bureau of Internal Revenue adopted the position that organizations engaged in propaganda were not really educational. With a similar sense of specialization, Congress in 1934 and especially 1954 assumed that when churches and other idealistic organizations participated in politics, they no longer qualified for their usual immunities. Thus, not only in ideas of separation of church and state but even in a more narrowly prejudiced way, theological liberals espoused a vision of church specialization that required the segregation of speech. Taking the anti-Catholic view that a politically active church was not really a church, liberals adumbrated what would become the law’s exclusion of politically active groups from the ordinary tax treatment of religious, educational, or charitable organizations. Tax Implications Exactly where anxieties about Catholic and other ecclesiastical speech might lead was adumbrated by Charles C. Marshall. This Episcopalian gentleman and former lawyer became the most prominent critic of Alfred Smith’s 1928

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run for the presidency. Although like many genteel nativists he avoided personal animosities, his denunciations of Smith and the Catholic Church were admired and reprinted by the Klan. And in light of his attitudes, it is not surprising that he hinted at restrictions on campaign speech.34 In his 1928 book, The Roman Catholic Church in the Modern State, Marshall repeatedly attacked the Catholic Church for asking its adherents to obey a foreign sovereign, and he hinted at the remedy by observing that “the justification of freedom from taxation of the property of religious societies is already questioned and may at any time become a practical issue.” Not content with a denial of tax exemption, he added forty pages later (after noting the ambitions of the Church in France) that in any country, a group subject to alien sovereignty should refrain from speaking out in elections: [N]either in France nor in any other State could any objection lie to any appeal to any group of people within the State to express their views and sentiments at a State election, excepting when that group of people within the State is under a compulsory obedience to a sovereignty alien to the State, and is directed as to the principles that must guide them in fulfilling their civic duties by the officials representing, within the State, that alien sovereignty.

This was a backhanded way of advocating a limit on Catholic campaign speech. As it happens, Marshall did not link the denial of tax exemption and the expectation that the Catholic Church should avoid speaking in campaigns. But he clearly laid out a vision of what eventually would become part of section 501(c)(3).35

The Enactment of Section 501(c)(3)’s Restrictions on Campaigning When theologically liberal anxieties about religious segregation shifted toward the segregation of ecclesiastical speech, Congress adopted section 501(c)(3)’s speech regulations. Liberal fears of Catholicism and similar dangers had once taken other paths. Many nativists had earlier sought to limit immigration, to bar Catholic suffrage and office holding, to exclude Catholic teachers, and to secure compulsory public education. As has been seen, these were shifting solutions, and liberals increasingly turned to the possibility of limiting the speech of the Catholic Church and other idealistic groups. Especially after Pierce v. Society of Sisters and the near success of Al Smith, many theological liberals gave up their efforts to prevent Catholic

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segregation in parochial schools and instead hoped to segregate much of the political speech of religious and other idealistic organizations. The segregation of the speech of idealistic organizations from politics can be observed in both of section 501(c)(3)’s speech restrictions. Nonetheless, in this chapter on segregation, it is especially apt to examine the 1954 limit on campaign speech. In the same year that the Supreme Court barred racial segregation, Congress largely completed its segregation of the speech of idealistic organizations. Lyndon Johnson’s Proposal Prior to 1954, federal tax law did not limit the campaign speech of taxexempt organizations. Already in 1934, Reed’s proposal initially included a restriction on “participation in partisan politics,” and now, in the spring of 1954, Congress moved in this direction. While the Supreme Court was moving toward its decision in Brown v. Board of Education, Congress was drafting a major reform of the tax code, and in the process, it used its exemption of idealistic associations in section 501(c)(3) to suppress their campaign speech. Senator Lyndon Baines Johnson’s role in this suppression is well known. As documented by (among others) James Davidson and Patrick O’Daniel, the enactment of section 501(c)(3)’s campaign restriction was engineered by Johnson in response to events in Texas. But Johnson’s contribution needs to be understood as part the broader liberal demands for the segregation of speech.36 In the 1954 Texas democratic primary, Johnson ran against Dudley T. Dougherty, who “was one of the first Catholics to run for state-wide office in the State of Texas.” Johnson’s allies and probably Johnson himself therefore worried about religion. For example, his religious supporters circulated ugly warnings against Catholic opposition, primarily from “the Roman Catholic Mexican vote,” which had been “organized against him.” The extent of the campaign literature against Johnson prompted a newspaper editor to note that “we have been receiving a multitude of political propaganda in opposition to Senator Lyndon Johnson”—“[o]bviously . . . inspired by proponents of Dudley T. Dougherty.”37 Much of the criticism came from conservative anticommunist groups, especially Facts Forum and the Committee for Constitutional Government, both of which enjoyed exempt status as educational organizations. During the campaign, therefore, in June 1954, Johnson arranged for Representative John McCormack—the Senate Democratic whip—to ask the commissioner

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of the IRS to reconsider the exempt status of the Committee for Constitutional Government. The commissioner concluded that the committee had not violated section 501(c)(3)’s existing restriction on using propaganda to influence legislation—a conclusion that Johnson learned on July 1.38 Johnson responded in the same way as Reed—by ensuring that taxexempt organizations would never again interfere, only this time in elections rather than just legislation. On July 2, Johnson proposed his amendment restricting campaigning. Earlier that day (as shown by Oliver Houck), Johnson approached Lawrence Woodworth—the chief of staff of the Joint Committee on Internal Revenue Taxation—for assistance in drafting the amendment. As recounted by a contemporary, the senator told Woodworth that “ ‘some foundations’ in Texas were giving him trouble in his reelection campaign” and that the lawyer should “draft an amendment which would stop them.” The result was the campaign requirement: that section 501(c) (3) organizations not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.”39 Already during the primary campaign, as shown by Patrick O’Daniel, Johnson’s amendment had the desired effect. A July 3 press release, issued at Johnson’s behest by the Democratic Senate Policy Committee, clearly suggested what was wanted. The press release unctuously offered reassurance that the amendment “will not have any effect on such organizations as Facts Forum . . . unless they go beyond their present activities and specifically intervene in political campaigns on behalf of public office candidates.” Because of other efforts by Johnson, Facts Forum had already “back[ed] down,” and within a week after Johnson’s amendment and the press release, the Committee for Constitutional Government also got the hint. This was the “final surrender of the conservative forces which had opposed Johnson during his primary campaign.” According to O’Daniel, “not a peep would be heard from them during the general election.”40 More than three decades later, incidentally, one of Johnson’s protégés filled a gap in the phrasing. The 1954 amendment had targeted campaigning “on behalf of any candidate for public office.” Therefore, as noted by Houck, some conservative tax-exempt organizations in the 1980s carefully campaigned against incumbents without favoring any particular candidate. After Senator Howard Metzenbaum complained in 1987 to the IRS without avail, Congressman J. J. Pickle—a Texas Democrat who called himself one the “LBJ Boys”—obtained an adjustment to section 501(c)(3) so that it restricted participating or intervening in any political campaign “on behalf of (or in opposition to) any candidate for public office.” The added phrase

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in parentheses, about campaigning “in opposition to” any candidate, confirms how much section 501(c)(3) was designed by successive incumbents to protect themselves from idealistic critiques, not least from religious and political conservatives.41 Self-Interest and Liberal Principles It is easy enough to assume that Reed, Johnson, and Pickle segregated the speech of idealistic associations merely out of personal resentment. Their proposals in 1934, 1954, and 1987, however, gained the support (or at least the acquiescence) of their fellow legislators. The personal motivations of the three congressmen are therefore not a sufficient explanation of section 501(c)(3)’s restrictions on speech. In addition, the suppression needs to be understood culturally—as the expression of widely shared assumptions, which were held by most members of Congress and much of the public.42 At the very least, the segregation of the speech of idealistic organizations resulted from congressional self-interest. Most business associations focus on maximizing their wealth, and they therefore tend to be open to political compromise in largely predictable ways. Churches, schools, and charities, however, have commitments that often rise above the mundane give and take of business or of politics, and they therefore sometimes cannot accommodate themselves to the expectations of political institutions and politicians. It thus should be no surprise that Congress and its members have responded by cordoning off much of the speech of such organizations from politics. Certainly, Reed, Johnson, and many other congressmen resented what they considered the baleful influence of idealistic organizations on campaigns and legislation, and these politicians therefore used the tax code to segregate the speech of such private groups. These congressmen, however, were not thereby abandoning their principles, for their personal interests were aligned with their liberal fears and ideals. From a theologically liberal perspective, the political speech of idealistic associations seemed to interfere with mental freedom and democracy, and it therefore made sense to restrict their lobbying and campaigning. On both individualistic and governmental grounds, the speech of idealistic associations had to be segregated.

Racial Desegregation The theologically liberal opposition to Catholic segregation in parochial schools had curiously mixed consequences. On the one hand, it paved the way

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for section 501(c)(3)’s segregation of the speech of religious and other idealistic associations; on the other, it also eased the way for racial desegregation. Religious and racial divisions have long vied for the attention of the American public, each rising to prominence at the cost of the other. Prior to the Civil War, northerners had led the nativist liberal assault on Catholicism, thereby making religion a central political issue. Then, during the Civil War and Reconstruction, the salience of racial questions led both sides to suppress their religious divisions. Afterward, many southerners reclaimed their American identity by making the South the vanguard of anti-Catholic assertions of Americanism, citizenship, democracy, and national unity. Racial divisions, however, never went away, and in 1954, they began again to displace religious controversies at the surface of American politics. The Nativist Ideal of Integrated Public Schools The connection between the religious desegregation and the racial desegregation becomes particularly clear when one asks how the ideal of integrated public schools came to be popular among large numbers of whites. A significant part of the answer lies in liberal, especially nativist, anti-Catholicism. In taking a theologically liberal stance against segregated Catholic education in private schools, many nineteenth-century Protestants also demanded the compulsory education of all children in public schools. Justin D. Fulton, for example, in Washington in the Lap of Rome, insisted on “a public school system, in which all the children of the state shall be educated”—the point being that there the “Bible shall be unbound.”43 In the twentieth century, the Southern Jurisdiction of the Scottish Rite took the lead in popularizing this anti-Catholic ideal of integration. When, in 1920 (as already noted), the Scottish Rite’s Supreme Council took a stance against Catholic segregation by declaring its belief in “compulsory” public education, it went so far as to demand public schools, “which all children shall attend and be instructed in the English language only, without regard to race or creed.” Indeed, the council repeatedly announced that it favored “[t]he American public school, non-partisan, non-sectarian, efficient, democratic; for all the children of all the people; equal educational opportunities for all.” Echoing the Supreme Council, the Guardians of Liberty urged: “Education is the very bed-rock of democracy,” and “education for democracy must be all-comprehensive.” The reasoning seemed clear: “If we are . . . to bring all together in mutual bonds of sympathy and love; to bury sectarian and racial dislikes and differences; then the state must undertake the task of educating its future citizens.” The Supreme Council thus popular-

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ized a vision of religious and racial integration in public schools, and at least as to religious differences the whole point was to get children of different backgrounds in the same classrooms.44 Although masons sought to impose this “Equality of Opportunity” on Catholics, they also, more generously, were espousing an egalitarian vision of citizenship. Bringing their fraternal principles into the public sphere, the 1924 booklet Masonry and Americanism asked: “Are you sending your children to school with the idea that the opportunity that they have there to meet and study with all the children of your community, no matter whether they be rich or poor, is a privilege? We want the child of every other man to have as good an opportunity as our own.”45 The masonic vision of integrating all American children in public schools was all the more remarkable as it was adopted by the Scottish Rite exactly when many of its members were joining the Klan. In fact, the imperial wizard himself soon declared on behalf of the Invisible Empire that “we demand that the advantages of education be universal; that no caste, class or creed be excluded.” Of course, in asking that all American children attend public schools “without regard to race” or “caste,” the Scottish Rite and the Klan were not necessarily insisting on racially desegregated schools. Nor were they even necessarily referring to blacks. For example, when masons complained about the need for “assimilating the vast alien masses,” they typically meant not Africans but all the others “from every foreign land under the sun” who brought with them “their racial characteristics and habits.” Nonetheless, in seeking compulsory public education to counteract segregation in parochial schools, the Scottish Rite, partly echoed by the Klan, embraced ideals of integration and of equal opportunity in the public schools that would soon have broader implications for race.46 Already when the Scottish Rite’s Supreme Council, in 1920, urged compulsory public education “for all the children of all the people” and “without regard to race or creed,” some masons hesitated. The Grand Lodge of Oregon—a state where masons, the KKK, and the Democratic Party would soon cooperate to secure compulsory education—promptly seconded the Supreme Council, followed by other state grand lodges. But after the Utah Grand Lodge concurred in January 1921, the Wisconsin Grand Lodge commented: “If the masons of the United States are going to enforce this declaration they have a very large sized population on their hands which will lead them into controversy and very far afield into the realms of politics.” This sort of sentiment did not prevent the New Age, beginning in late 1921, from publishing part of the Supreme Council’s declaration, including its

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point about “without regard to race or creed,” in every issue of the magazine.47 Although the Supreme Council’s official declaration of its anti-Catholic vision of integration eventually dropped out of official masonic pronouncements, many masons embraced the sentiment. For example, a 1933 article in the New Age argued that “the American public school is a free, democratic institution intended for all of the country’s children without regard to color, race, or creed.” By the 1950s, many theological liberals, such as Conrad Henry Moehlman in 1951, assumed that public education will “breed religious and racial tolerance” and that public schools are “for all American children regardless of sex, race, color, or creed.” In this way, theological liberalism of a nativist bent led many white liberals to idealize desegregated public schools, where children would enjoy equal opportunity, and such liberalism thereby eased the path for racial desegregation.48 b Nativists even elevated integration as a key governmental function. From the nativist liberal perspective, government had to bring all American children into public schools so as to form them into a cohesive people, with the shared sense of citizenship necessary for a democracy. And this expansive vision of government power over education would soon matter for the Supreme Court. Public education was traditionally considered a government benefit or privilege, which therefore did not have to be equal under the Fourteenth Amendment’s Equal Protection Clause. But the Supreme Court in Brown v. Board of Education focused on the importance of public education in America. Reciting the theme—so often sounded by nativists—that education is “the very foundation of good citizenship,” the Court explained the

b. A member of the Scottish Rite who already in the 1930s took a broad view of masonic principles was Bagdasar L. Baghdigian. He was not a typical Scottish Rite mason. As a child, after surviving the massacre of his family and Armenian community, he took refuge with friendly Kurdish tribes and eventually in 1904 arrived in America with a total of 93 cents. He eventually became a spiritualist, an “Americanization expert,” a Chautauqua lecturer, and a social worker. In 1934, he wrote an article in the New Age on “Validating Prejudice.” It began: We look at a person. He has white skin. We call him a white man. We look at another person. He has black skin. We call him a Negro. We look at a third person. He has yellow skin. We call him Chinese. We look at a fourth person. He has red skin. We call him an Indian. In every one of these classifications, if unguarded, we are apt to dub each with preconceived prejudice. In each case we may not consider of what value each is to his Creator. Baghdigian concluded that some “reactions validate, as it were, the prejudice.”*

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“importance of education to our democratic society” and concluded that “education is perhaps the most important function of state and local governments.” On this basis, the Court held that public schooling had to be equal and that racial segregation deprived minority children of “equal educational opportunities.”49 Reactions to Racial Desegregation Although theological liberals, in their critique of the Catholic Church, did much to popularize the ideal of integration in public schools, many such liberals were slow to support racial integration. Religious and racial prejudices led in different directions. Especially interesting for understanding the theologically liberal reactions to Brown v. Board of Education was the Southern Jurisdiction of the Scottish Rite. Faced with the Supreme Court’s 1954 decision, this masonic organization began to rethink some of its most basic assumptions—partly about race, and even more about religion. The Scottish Rite News Bulletin initially announced that the Supreme Council would delay taking an official position on Brown. On the one hand, the “policy of this Supreme Council has always been to honor the decisions of our courts.” On the other, the decision was “obviously of a revolutionary nature.” It overturned the “time-honored doctrine of ‘separate but equal’ facilities,” which had seemed “the most logical, sensible, and least troublesome solution to the problem.”50 The Scottish Rite, however, could not long postpone taking a position. It had prominently opposed religious segregation from public schools, and now Catholics were mocking it for it hesitating to embrace racial integration. A Catholic newspaper editorial extended “sympathy” to the Scottish Rite on the ground that racial segregation had its “strongest support in the South” and that the Scottish Rite therefore now had to “reverse its position” on desegregating Americans in public schools or “cease fighting against private schools, which it points to as representing a type of segregation.”51 The Scottish Rite expressed its appreciation of this “kind gesture,” but protested that “the major premise is untrue,” for the Scottish Rite had “never opposed private schools.” Notwithstanding its demands in the 1920s for compulsory public schooling and its continued attacks on Catholic segregation in parochial schools, it asserted in 1954 that it “believes, now and always, that parents should be permitted to send their children to the educational institution of their choice without the exertion of any kind of pressure on the part of anyone outside the family.” Although it drew a “distinction

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between private and parochial schools,” it “neither condemns nor opposes private or parochial schools so long as the authorities controlling them neither ask for nor receive assistance in any form from the public treasury.” Thus, in response to the racial desegregation of public schools, the leading nativist-liberal organization in the United States backed away from its attack on private schools as instruments of Catholic segregation.52 Tellingly, this sort of equivocation also came from educators, including James Conant. Although their theological liberalism had led them to advocate religious integration, many of them, perhaps even most, were slow to support racial integration. In 1952, the National Education Association adopted a code of ethics that began by declaring the “self-evident” truth that “the primary purpose of education in the United States is to develop citizens who will safeguard, strengthen, and improve democracy obtained through a representative government,” and, second, that “the achievement of effective democracy in all aspects of American life and the maintenance of our national ideals depend upon making acceptable educational opportunities available to all.” This, however, was more a statement of nativist ideals than a declaration against racial segregation. The association included many southerners who embraced a democratic vision of equal educational opportunity on the assumption that those who needed to be included were Catholics. The association thus did not support mandatory racial desegregation before Brown v. Board of Education, and afterward, until the mid-1960s, it largely avoided engagement on the subject, except to oppose federal legislation implementing Brown.53 More might have been expected of James Conant and other leading educators, but when listing educational obstacles in 1964, he mentioned racially segregated schools as only the tenth problem, and he sheepishly admitted that “until recently all concerned with shaping policy for elementary and secondary education have either ignored the subject of Negro education or accepted completely segregated schools as a matter of course”: School people and professors, with very few exceptions, have written about American education without even describing the different ways in which children of Negro families have been offered educational opportunities. . . . We have talked about our public schools system and how it responds to and is conditioned by all types of groups and social class except the Negro.54

Writing about himself and other educators, Conant noted that although comprehensive high schools had been “defended on social and political

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grounds as an instrument of democracy”—not least, as liberal bulwarks against Catholicism—“neither I nor anyone else, as far as I am aware, has underlined the fact that in the former Confederate States no comprehensive high schools have ever existed.” Actually, some had recognized this, and Conant was writing in justification of his silence. Nonetheless, a decade after Brown, he had a point when he concluded that the “members of the establishment have been as silent as any of us as to the limitation on the concept of the comprehensive high school as an instrument of democracy.”55 The theologically liberal heritage on segregation was thus a mixed blessing. Liberal anxieties about religious segregation helped to popularize the integrationist vision that would be so important in fighting racial segregation. For many theological liberals, however, the problem of private religious segregation long remained more central than the more immediate problem of public racial segregation. Desire for Unity What evidently underlay both the religious and the racial debates were yearnings for unity amid diversity. The hopes for ending divisions, whether religious or racial, were sometimes almost religious in intensity, but whereas in education they led to demands for integration, in matters of speech they led to demands for segregation.56 The desire for shared national beliefs—along liberal lines—was especially powerful among those whose religious attachments no longer focused on any particular church or “orthodoxy.” Many such liberals were unwilling to tie themselves to churches or truths that stood apart, and instead sought spiritual union at a national or democratic level. The underlying anxieties of theological liberals arose from the fractured quality of modern life. They worried about groups threats to individuals and tended to yearn for social unity among individuals, undisturbed by religious divisions. In a similar manner, they also increasingly yearned for a social unity unbroken by racial divisions. Having denied the legitimacy of religious segregation, they increasingly also denied the legitimacy of racial segregation. Of course, theological liberals were not alone in embracing racial desegregation. Equally vigorous were many Catholics and others who were attacked in their distinctive orthodoxies. But what matters here is that the liberal ideals that could draw Americans to embrace religious and eventually racial desegregation could also lead them to espouse the segregation of

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speech—the segregation of the political speech of idealistic organizations, lest they work divisively or at odds with the democratic whole. Different Types of Segregation The solutions to religious and racial differences were different because the problems were different. Whereas racial segregation was imposed, the religious segregation was chosen. Thus, against racial differences, it would seem necessary to break down the barriers to participation in public schools. But against religious differences, it had long seemed essential to use compulsion. Although this initially meant forcing Catholics into public schools, it soon became an effort to limit ecclesiastical speech. After the Supreme Court in 1925 rejected the project of compulsory religious integration, theologically liberal anxieties about religious differences had to find some other resolution, which was to limit ecclesiastical speech in politics. The failure to desegregate Catholics in education thus strengthened the demands to segregate religious and idealistic associations from politics—in particular, to keep their views out of elections and legislation. The Catholic menace thus inspired shifting solutions. Nativists in the nineteenth century hoped to ensure a liberal democracy by barring Catholics from voting or at least from serving as teachers or other public officials. When this project became unrealistic, nativists then aspired to force Catholic children out of their segregated parochial schools into public schools, where they could be integrated and educated in a theologically liberal Americanism. When even this effort ran aground in Peirce, the underlying anxieties persisted but now found an outlet in section 501(c)(3)’s segregation of churches, schools, and charities from politics. If children in separate educational organizations could not be forcibly included in public schools, then at least adults in separate organizations could be forcibly excluded from central public arenas. In sum, there were at least three types of segregation—relating to religion, speech, and race. Nativist theological liberals repeatedly called for ending religious segregation in education. And being unable to prevent this sort of segregation, they often were especially anxious to segregate the speech of religious organizations from politics. Simultaneously, their protests against segregated education had implications for race. Many theological liberals were not as ready to embrace racial integration as religious integration. Nonetheless, having adopted the ideal of integrated education in opposi-

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tion to private religious segregation, many of them and others eventually applied this ideal to the more substantial problem of public racial segregation.

Segregation and Specialization There was nothing necessarily nefarious about the desire to segregate the speech of religious and other cultural institutions from politics. At least at a sociological level, the opposition to Catholicism and other orthodoxies, including section 501(c)(3)’s assault on First Amendment rights, was part of the growing specialization of American society. Americans, including their politicians, increasingly were individuated and therefore were apt to fear the communal expectations of churches and other idealistic organizations, especially when they brought their ideals into politics. Americans also were becoming specialized in different aspects of their lives. Their work life, their home life, and their political life tended occur in different places, according to different expectations and mores, and amid this specialization, they tended to resent attempts to make them conform their specialized activities and beliefs to relatively communal religious ideals. It is therefore no surprise that they were anxious about the speech of churches and other idealistic organizations. Social specialization thus provides an underlying explanation of the growing popularity of liberal ideals, including separation of church and state and the segregation of idealistic associations from politics.57 It would therefore be a mistake to conclude that section 501(c)(3)’s segregation of speech resulted merely from Congress’s desire to segregate itself from unwelcome pressures, or merely from the desire of theological liberals to quiet down Catholic and other ecclesiastical organizations. More fundamentally, when a specialized and individuated majority felt anxieties about the speech of idealistic organizations, it segregated much of their speech from politics. The difficulty is that churches, schools, and charities cannot be so narrowly circumscribed without transforming them. Religious, educational, and social ideals often bear upon the whole life of individuals and the nation, and the associations devoted to these ideals therefore cannot always keep their speech out of politics. To be sure, churches, schools, and charities are specialized in their own ways, but they cannot be specialized or segregated along the lines of section 501(c)(3) without altering their very nature. Indeed, the segregation has deprived Americans of one of the foundations of their freedom. When Congress prevented idealistic organizations from fully participating in politics, it substantially segregated politics from

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an important means by which Americans can effectively develop and express their opinions independently of government. For such reasons, although section 501(c)(3)’s restrictions have a sociological explanation in specialization, this cannot justify the restrictions. Even if an individuated majority wants a legally enforced specialization of roles, there are profound reasons for leaving social specialization to its own devices and not allowing its implications for speech to be imposed by law.

( Section 501(c)(3)’s segregation of speech was no accident. Many liberals sought to quarantine their opponent’s speech from politics, and especially after the failure of attempts to bar the segregation of Catholics in parochial schools, they created an atmosphere in which segregation of the speech of religious and other idealistic associations seemed necessary for democracy. The danger that could not be addressed through a sort of desegregation was thus redressed by section 501(c)(3)’s segregation.

SIX

Subversion

In the summer and fall after the Supreme Court decided Brown v. Board of Education, Congress finally repudiated McCarthyism and began to put aside anxieties about communist subversion. Congress, however, did not simply abandon its anxieties about subversion. Instead, it increasingly redirected them in more ecumenical ways. The connection between section 501(c)(3) and concerns about subversion has already received some scholarly attention. In defense of section 501(c)(3), Ann Murphy observes that the section’s 1954 restriction on campaigning was supported not only by Democrats but also by Republicans— that is, not only by men such as Johnson who worried about conservative interference but also by men who worried about communist subversion. This observation is valuable in recognizing that Johnson’s amendment had bipartisan support, including among those who shared Joseph McCarthy’s anxieties. But the implication that section 501(c)(3) was even handed—and thus not about suppressing speech—fails to capture what it accomplished and why.1 Congress, in fact, treated tax-exempt organizations as if they were subversive. At first glance, this charge may seem hyperbole. But already in the 1934 amendments to section 501(c)(3), and even more clearly in the 1954 amendments, Congress echoed deep changes in liberal attitudes—changes in which idealistic associations, and their opinions or speech, had come to seem potentially dangerous. Rather than foundations of liberty, as once celebrated by Tocqueville, idealistic associations had come to be viewed as threats to individual liberty and even to American democracy. In this spirit, at the same time that Congress repudiated Joseph McCarthy and his view of subversion, it also used section 501(c)(3) to act on an increasingly

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popular vision of subversion—one that was more ecumenical and thus more sweeping. It thus is necessary to dig down, almost archeologically, to understand the layers of American fears about subversion. One of the deepest layers was the old fear of Catholic threats to government. On top of this Americans had added concerns about communism. These narrow fears came together most dramatically in 1954, and together they did much to justify section 501(c) (3)’s restriction on campaigning. But as will be pursued in both this chapter and the next, such fears fit within broader liberal worries as to how religious and ideological associations and their speech could become subversive of democracy. Although this expansive liberal perspective could encompass narrower liberal fears, whether anti-Catholic or anticommunist, it also allowed Americans to shift their anxieties from just Catholicism or communism to a more general and thus more liberal concern about the threat to democracy potentially from the full range of idealistic associations.

Fears of Ecclesiastical Subversion Although the fear of communist subversion is familiar, it was preceded by nativist and more broadly liberal fears of Catholic and other ecclesiastical subversion. It is important to begin with this anti-Catholic and more generally antiecclesiastical vision, as it accustomed Americans to dark complaints that idealistic associations, their propaganda, their influence, and their segregation were un-American, alien, disloyal, and subversive of democracy. A nativist theological liberalism thereby established the tropes and code words about subversion that, although first identified with the Catholic Church, soon came to be associated more broadly with almost all churches and with communism. Catholic Threat to Democracy Although anti-Catholic fears in America had their foundation in anxieties for individual mental freedom, they often came to rest on anxieties for the nation and its democracy. Catholicism seemed incompatible with democracy. And although such anxieties already have been discussed, it remains to be seen how far they went toward accusations of subversion. Fears of Catholic subversion were already centuries old. At the beginning of the Reformation, Catholics worried that Protestants were undermining not only the Church but also the divine order of the world, and many Prot-

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estants responded in kind, saying that Catholics subverted divinely ordained kingship and government. In fact, some Catholic doctrine authorized rebellion and even assassination against Protestant rulers—this being the theology that underlay, for example, Guy Fawkes’s 1605 plot to blow up Parliament. By the end of the seventeenth century, Protestants frequently declared Catholicism incompatible with free systems of government, and the English government tolerated Catholics only upon receiving assurances of their loyalty. When America in the 1830s broadened suffrage and moved toward popular governance, nativists began to condemn the Church as “anti-American and anti-liberal.” Many even denounced Catholics for their allegedly unqualified allegiance to a foreign prince. In this context, the Republican Party declared that it would “discuss fearlessly the acts of all men and all parties that have in any way pursued such a system of policy as is deemed to be subversive of the fundamental principles of our government and destructive of public or private morality”—the primary example being “papal power.”2 Far from ending in the nineteenth century, these liberal assaults on subversively antidemocratic ideas continued at least up through the midtwentieth century. Catholics defended themselves with vigor, but in their own stridency they often provoked renewed attacks. Catholics occasionally received support from unlikely quarters—as when the editor of the Iconoclast argued that “Catholic citizens are just as liberal and loyal to the republic as their Protestant neighbors.” Such attempts at moderation, however, could not hold back the tide. Imperial Wizard Hiram Evans, for example, warned in expressly “liberal” terms against the “Roman campaign of propaganda, subversion and political aggression.”3 In Washington, D.C., much of the political class belonged to fraternal organizations that shared varying degrees of liberal anti-Catholic prejudice, and thus a wide range of men—elected politicians, judges, bureaucrats, and lobbyists—were accustomed to liberal fears of subversion. For example, in the mid-1920s, one study concluded that the Senate had 67 masons, and the House, 305. Although some masonic groups were not anti-Catholic, many tended in that direction, and the preeminent masonic group, the Scottish Rite, Southern Jurisdiction, was one of the leading opponents of the Church. Together with the Klan and the National Education Association, the Scottish Rite pressed for a federal department of education headed by a cabinet secretary, and at a personal level, it had pervasive connections to the Klan.4 The Scottish Rite’s feverish warnings about Catholic subversion, especially in relation to public schools, persisted through the middle of the century. After protesting the Catholic idea that “religious organizations should

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have control of education rather than a non-sectarian, public school system,” the New Age in 1953 cautioned: “Subversive elements have been circulating literature aimed at weakening the people’s faith in the public schools.”5 In the same year, Protestants and Other American United—a group closely aligned with, and initially subsidized by, the Scottish Rite—published a cartoon entitled “The Subversive,” showing a “Sectarian Infiltrator” using a jack hammer to undermine the wall of an “American Public School.”6 Methodist bishop Garfield Bromley Oxnam—one of the founders of Protestants and Other Americans United—declared that “[w]hen the nation is endangered by an ideology that seeks, by methods of infiltration and conspiracy, to seize power, the nation must take proper steps to protect itself and to insure its preservation,” and of course he was speaking not of communism but of Catholicism.7 Throughout the twentieth century, nativist and other liberal writers were aware that their accusations of antidemocratic Catholic subversion might seem intolerant, and they therefore tended to emphasize that their animosity was aimed at the Church rather than at individual Catholics. This, however, was not so much a retreat from their liberal anxiety about groups as an expression of it. In the 1920s, for example, T. W. Callaway—pastor of the Baptist Tabernacle in Chattanooga and “a 100 per cent American”— went out of his way to “disclaim any ill-will toward a Catholic individual, or his religion.” At the same time, he denounced the Catholic Church as “simply a religio-politico organization” rather than a “spiritual body” and as a “relentless enemy” of “American” values, on account of its being “against separation of Church and State, a fundamental in the Constitution of the United States.” In other words, he opposed “the Roman ‘system,’ and not the Catholic individual.” Similarly, in 1951, Harold Rafton—the author of a Beacon Press pamphlet entitled The Roman Catholic Church and Democracy— acknowledged that the individual Catholic “is taught and believes that the Roman Catholic Church is entirely compatible with democracy.” But this was merely his way of introducing his theme, that “the Roman Catholic Church, under the guise of religion,” was “attempt[ing] to undermine our democratic institutions.”8 Liberal anxieties had long centered on the threat to individual freedom and democracy from ecclesiastical groups and their speech. Therefore, when liberals protested that they had nothing against Catholic individuals, only against the Church, they did not really answer the question about intolerance. Instead, they merely clarified it. The larger point is that anti-Catholicism made fears of subversion a pervasive theme of American democracy. The nativist liberal celebration of de-

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mocracy and citizenship thus came with a dark side—an anxious concern about antidemocratic subversion. A Genteel Tone As anti- Catholic liberal fears increasingly became part of establishment views, their tone became more genteel. Anti-Catholic literature had traditionally included much that was violent, obscene, and openly prejudiced, but in the late 1940s and 1950s, much of it became self-consciously tasteful. The attempt to take an elevated posture had long been evident in relatively high-minded nativist writings. In the 1920s, Hiram Evans took the theologically liberal high road of disclaiming mere prejudice—as when he wrote to Charles C. Marshall that it was only by distributing writings such as his “that we can transform what is often a blind prejudice against Romanism into reasoned and effective opposition.” Although many antiCatholic tracts had peered with pornographic interest into the mysteries of Catholic nunneries and auricular confession, official Klan publications avoided the most lurid slanders against the Church. This path was also taken by the Protestant—a nativist liberal magazine with a largely masonic and Klan readership. Its editor, Gilbert Nations, was insistently anti- Catholic, but he did not linger on the questions of sex and torture that were staples of populist anti-Catholic writings. Instead, he focused more on the Catholic subversion of democracy, describing canon law as “essentially alien and opposed to democratic institutions and government,” and complaining that “the papal system” was “the enemy of popular sovereignty and democratic institutions.”9 The most pronounced shift toward a genteel presentation of antiCatholic prejudices came after World War II, when the Beacon Press—a Unitarian publishing house in Boston—printed a range of pamphlets and books designed for relatively educated readers. No one typified this upscale anti-Catholicism more than Paul Blanshard, who reached much of the nation with his notorious 1949 book, American Freedom and Catholic Power. He was the twin brother of the philosopher Brand Blanshard, and he himself had studied at Harvard Divinity School and later briefly with John Dewey, who became a “good friend.” When Blanshard was working for the Nation, he found an appealing milieu, where editors were exploring the outer reaches of liberal ideas that would soon become commonplace among American elites. He later explained that the Nation took “more than an anti-Catholic line; it was an anti-Christian line, almost an antireligious line. We Young Turks on The Nation thrived on free

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thought, sexual liberation, and Fabian socialism, a blend which might be described as the spiritual wine of the period.” Blanshard noted that, while at the magazine, he had “not yet” gone as “far in my iconoclasm” as H. L. Mencken, who thought, “on the whole, religion is a curse to the human race, even when it is relatively mild and decent.” Nonetheless, he felt at home amid the “debonair, slightly sneering condescension of The Nation intellectuals toward orthodox faith.” Their condescension was sufficiently liberal that the magazine rejected both Protestant and Catholic orthodoxy—as when in 1928 it tweaked public opinion by suggesting that there was more of a “Protestant Menace” than a Catholic Menace in America.10 Well understanding the tones of the Ivy League and the Nation, Blanshard was perfectly suited for presenting liberal anti-Catholic anxieties in an acceptable manner. As already noted, he thought he was engaged in a “new American liberal counter-attack” on the Catholic Church—an assault that would avoid the grotesqueries of the past: “The new opposition is not based upon the type of personal bigotry which disgraced the country during the Al Smith campaign. It is strongest among the liberals who have always stood most courageously for personal tolerance.” It was a gratifying thought. But (as already noted) nativists had long taken this liberal stance of personal tolerance for Catholic individuals while pursuing liberal animosity against the Catholic Church.11 Like so many other liberals, Blanshard repeatedly accused the Catholic Church of subversion. When he was a young “dues-paying member of the Socialist Party” in 1914, he had written against America’s entry into World War I, only to find himself viewed as treasonous. Now, as a well-seasoned writer, he flung the same sort of accusation at Catholics.12 He saw himself in a profound “struggle between American democracy and the Catholic hierarchy.” The Church, he thought, was an “aggressive state within a state, claiming as much of the area of communal life as it can safely capture,” and its “priestly control of education” threatened “intellectual freedom.” Most revealingly, Blanshard followed the example of some earlier nativists in treating Catholicism and communism as equivalent, arguing that the danger of subversion came equally from these two “alien and undemocratic powers, the Vatican and the Kremlin.” Thus “Vatican intervention in American life is no more welcome than Kremlin intervention.”13 All of this might have seemed beyond the pale. Thoughtful commentators such as George Huntston Williams—a Unitarian minister at Harvard Divinity School who studied Protestant- Catholic relationships—complained about the “Blanshardian conversion of democracy into a kind of

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faith,” which Williams called “Idealistic Secularism.” Blanshard, however, knew his audience. His book was tasteful and liberal, and it won accolades, including praise from Dewey for its “good judgment and tact.”14 When Blanshard in 1951 published his Communism, Democracy and Catholic Power—an entire book pairing the two undemocratic powers—Bertrand Russell could not suppress his delight. He considered the Catholic Church a “powerful reactionary world organization promulgating principles inimical to democracy,” and upon finding he had an American soul mate, he sent him a poem “to express the gist of your work in immortal verse.” It began: The Prelate and the Commissar Were walking hand in hand: They wept like anything to see Much laughter in the land: “If this could but be turned to tears,” They said, “it would be grand.”

Einstein was not moved to verse, but after hearing Blanshard speak at Princeton, the physicist rose to express his “gratitude to a man who is fighting the abuses of a powerful organization.” A Catholic woman protested to the scientist that he was supporting prejudice, but he answered that “some political and social activities and practices of the Catholic organizations are detrimental and even dangerous for the community as a whole, here and everywhere.”15 Blanshard evidently was giving acceptable expression to liberal prejudices that were already widely shared, but this does not adequately convey his achievement. Ever since the 1920s, the Klan’s barbarities had tainted liberal anti-Catholicism, and Blanshard’s genius was to enable even highminded liberals to feel good again about their favorite prejudice. Suppression of Speech The accusation of subversion had legal implications. If the speech of the Catholic Church was subversive of American democracy, then perhaps it had to be suppressed. Nativists and other liberals defined subversion not simply as a threat to government but more broadly as the subversion of democratic principles, and in this way, their attack on subversion became a particularly broad assault on speech. As put by Imperial Wizard Hiram Evans, Catholicism “at-

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tacks American ideals” in an “indirect way,” not least by “undermining the embodiment of those ideals in social and political institutions.” From this encompassing perspective, Catholic doctrine itself—mere speech—was subversive, and it was necessary to resist the “Roman campaign of propaganda, subversion and political aggression.” Hence Evans’s 1930 proposal (as seen in chapter 4) to define “[t]he legal position of all churches in respect to the State, to their members, and to each other, together with their duties toward the State and the precise limits of their right to political activity either directly or through religious power over their followers.”16 Evans was not alone in this approach to Catholic subversion. The next year, in his Roman Catholic War on Public Schools, Gilbert Nations—the longtime nativist editor—condemned parochial schools as a part of a conflict between Catholicism and democracy: “It is the war between sovereign ideals which are fundamentally incompatible. It is the battle of light and darkness, of progress and reaction, of American democracy and the absolutism of the Sovereign Pontiff.” After complaining that the Catholic Church and its schools “deny point blank that the state has a right to educate its people,” Nations protested they “must abandon that seditious contention. They must move into line with the spirit and ideals of the Republic, obey its law and submit to its supervision or be driven from our midst.” Indeed, “Nagging and destructive unmerited criticism of the public schools system by mouthpieces of Rome must be silenced.”17 After World War II, liberals persisted, even if with more gentility, in taking aim at Catholic speech—as can be illustrated by Harold Rafton. Seeking to protect “our democratic ideals,” he wanted to ensure “a citizenry which shall continue to be able to think its own thoughts without being induced or compelled by so-called religious doctrines to follow an anti-democratic authoritarian ‘party-line’!” He therefore, like many other liberals, wanted to get “the American Catholic” to “repudiate the anti-democratic doctrines of his Church,” so he could “be the good American he surely wants to be.”18 Catholics, that is, had to be induced to alter their religion. To this end, Rafton encouraged Catholics to devolve or Protestantize control over church property, church schools, and the selection of clergy—so as ultimately “to demand the elimination of anti-democratic Catholic doctrines.” Catholics could leave “strictly religious teachings” to their clergy, but at the same time “it should be insisted that no taint of any anti-democratic doctrine should be taught.”19 If Catholics resented the antagonism against them, they only had to adjust the doctrines of their church, and then the tensions would go away. “When . . . it is apparent that American Catholics by their vigilance will con-

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tinue to maintain their rights . . . from a reluctant church, we non-Catholics can assure our Catholic fellow citizens that the tension between us will disappear.” At that point, “[w]e . . . can both work in common for democratic ideals, secure in the knowledge that both Catholics and non-Catholics have been freed from the present authoritarian threat to our cherished American liberties.”20 Like so many liberals before him, Rafton recognized that there might be First Amendment objections. They were trumped, however, by the needs of democracy. Of course, “all religious organizations in America seek to convert others to their religious views.” But the Catholic Church, “under the guise of religion,” was attempting to “undermine our democratic institutions.”21 Blanshard was forced to address the constitutional question in a 1951 debate held by the Harvard Law School Forum on the Catholic Church and Politics. The contest pitted Blanshard against George Dunne—a Jesuit who had already tested his mettle in the struggle against racial segregation. Dunne bluntly complained that Blanshard “denies to Catholics the right to express their views.” In particular, Blanshard denied them the right “to attempt objectively through the democratic processes to persuade their fellow citizens of the rectitude of their moral judgment.”22 Blanshard protested that “none of us denies the right of the Catholic Church to have opinions” and that there “is no question of religious freedom involved.” At the same time, he persisted in delegitimizing Catholic speech as undemocratic. In his words, “the judgments that the Catholic hierarchy impose upon the American Catholic people are not democratic judgments. They are called beliefs established by conscience, but they are not the conscience of the Catholic people”; instead, they reflected the conscience “of the priests.” Catholics, in this old liberal complaint, were voting and serving in office as theological automatons, and in echoing the doctrines of their antidemocratic church, they could not claim rights of conscience. Indeed, their views threatened democracy.23 Blanshard candidly advocated at least some lobbying restrictions. He urged “the registration of all Roman Catholic higher officials operating in the United States under the provisions of the Foreign Agents Registration Law.” More broadly, he feared the Catholic speech that opposed what the Church considered offensive speech, and he therefore condemned “all organized denominational censorship of press, screen and radio.” But this was not all. Speculating about the possibility that “democratic” opposition to Catholicism might carry Americans to extremes, he asked (with the appearance of solicitude for Catholics) whether Americans could “challenge the antidemocratic policies of the Catholic hierarchy without attacking the

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Catholic people.” Answering his own question, he ominously said, “Frankly, I do not know.”24 In fact, Blanshard wanted Catholicism to be subject to the same limits on speech as communism. In his 1951 book, Communism, Democracy, and Catholic Power, he pursued his ideas about the dual threats to democracy by arguing for “containment” of both communism and Catholicism. They both were “hostile to our freedoms.” Accordingly, “[d]emocracy is inevitably bound by its own self-interest to attempt the limitation of both Vatican and Kremlin power to presently occupied territories because the two systems have been encroaching on the democratic way of life.” Their encroachments took different forms, and therefore required different responses, but both needed “containment.”25 Broader Antiecclesiastical Demands for Suppression The fear of Catholic subversion was increasingly accompanied by more general fears of ecclesiastical subversion. Put another way, from the late nineteenth century onward, growing numbers of liberals expanded their suspicions about antidemocratic subversion to include not merely the Catholic Church, but all churches or distinct religious organizations, and predictably these suspicions often focused on speech. Protestant lobbying and campaigning was of particular concern to the Seventh-Day Adventists. Being at odds with Protestants as well as Catholics about the Sabbath day, the Adventists worried that a “religious tyranny of the majority, confederated for the purpose of controlling political institutions and oppressing the minority, is not a whit better than a religious autocracy of a few which menaces the rights of the majority.” They therefore made nativist-style complaints about Protestant propaganda and lobbying. For example, in 1927, in opposition to the efforts by more conventional Protestants to secure Sunday laws, the Adventists published a pamphlet that warned: “America is facing a real crisis. Strong lobbies, representing more than twenty religious denominations, have been established in Washington, D.C., whose special work is to influence in the supposed interests of Christianity, all the activities of the Government.” These Protestant lobbies, moreover, seemed subversive. Within the pamphlet, a cartoon depicted the Statue of Liberty, standing on its pedestal above a platform labeled “American Republic,” and holding a sheet of “Constitutional Guarantees.” Below, Liberty Island was threatened by boats, one flying the flag of “Religious Amendments” and the other, the flag of the “Loyal Order of Lobbyists.” In the water, divers from these boats planted TNT under the island—the explosives from

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the amendments’ boat being labeled “National Religion for America,” and those from the lobbyists’ boat being identified as “Religio-Political Legislation.” The cartoon was called “Miners and Sappers Undermining American Liberties.”26 Similarly, in masonic and nativist organizations, there was a growing liberal appreciation of the danger from all sorts of churches—not merely that of Rome—and these more expansive liberal worries, including those about subversive ecclesiastical speech, flourished even within the Ku Klux Klan. Klan literature was never monolithic, for it had to appeal to a mass of men and women of overlapping but variegated fears and prejudices. Recognizing the different tastes of its members, the Klan sometimes condemned Catholic interference in politics and sometimes more broadly generalized about ecclesiastical interference. Imperial Wizard Evans tended to generalize his anti-Catholic arguments into expansive liberal complaints about the threat to democracy from churches, and he had particularly good reason to do so in 1930. The Klan in the 1920s had drawn much of its membership from vigorously anti-Catholic nativists. By the end of the decade, however, the Klan and its narrow anti- Catholicism was in disrepute, and its membership was collapsing. Evans therefore in 1930 emphasized that his attack on the Catholic Church was a part of a principled “liberal” critique of the religious authority of all churches. Of course, he was particularly concerned about autocratic churches, which appeared to threaten democracy and which therefore could not be allowed to enjoy freedom of speech unless they democratized themselves. “[I]n a free country the churches have a right to be heard and to take part in politics only on the same basis as other democratic agencies.” From this, he thought, “[i]t follows that only a democratic church can exert political influence which does not . . . prevent the essential democratic function of free expression of the will of the people.” The implications for suppression were even stronger. Evans generalized that “the churches as voluntary associations must become subject to regulation by the state and they must not pursue the policy . . . of attempting to coerce communicants in their political actions.”27 Whether put in narrowly anti-Catholic terms or broader antiecclesiastical terms, liberal anxieties about subversion were shaping American culture, and they led to hints that for the sake of democracy, the political speech of churches might have to be suppressed. These were not, however, the only fears of subversion that gave rise to section 501(c)(3)’s speech restrictions.

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Anticommunist Fears In the twentieth century, anxieties about Catholic and other ecclesiastical subversion were more than matched by worries about communist subversion. And the religious and the ideological fears were linked. Communism and Catholicism Politically, Catholics and communists tended to occupy opposite ends of the political spectrum, and they therefore often traded accusations of subversion. Having been excoriated for more than a century as un-American enemies of democracy, many Catholics took special satisfaction in emphasizing their loyalty and denouncing communists as un- American and antidemocratic. For example, after World War II, the Knights of Columbus organized a Crusade against Communism and a “comprehensive program against subversive activities.” Not surprisingly, Joseph McCarthy—the most vigorous denouncer of communist un-Americanism—was Catholic.28 In contrast, many liberals, whether academics or masons, paired Catholic and communist organizations as equal threats to American values, especially democracy. Blanshard’s version of this has already been discussed, and by the early 1950s such arguments were commonplace. George Elderkin—a retired Princeton professor—argued in 1954: “The threat of communism, serious as it is, should not divert our minds from the Catholic clerical threat to ideals of freedom.” The problem was that “[t]he concentration of attention upon the ambitions of one totalitarian system diverts attention from the ambitions of the Catholic totalitarians.” Accordingly, instead of making “communism a special object of attack,” there should be substituted “the broader term ‘subversion,’ so as to include Catholic totalitarian subversion of democracy.” The same year, Thomas Harkins—the sovereign grand commander of the Southern Jurisdiction of the Scottish Rite—denied that there was only one iron curtain: “There are two of them. One is the impenetrable curtain of secrecy thrown by the Kremlin around the Soviet Union and its unwilling satellites; the other is the centuries-old Index Expurgatorius, a list of publications which the Roman Catholic hierarchy forbids its adherents to read except by special permission. There is little perceptible difference between the two.” This was standard fare in the New Age, in which masons argued that “the Roman church is a sovereign state, totalitarian in character”; that “the Roman Catholic Church is a monarch, a totalitarian state, a dictatorship as pure as that over which Marshal Stalin presides”; that con-

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sequently “Protestants and nonsectarians must constantly be on the alert to thwart Rome’s evil purposes.”29 Adding fuel to the fire, men such as Elderkin complained that the Church was playing the anticommunist card—that “[a]nti- communism is the Church’s only card to play in its studied program of attack upon the public schools.” Joseph Harsch wrote in the Christian Science Monitor that “Roman Catholic fervor against Communism may turn out in the end to be primarily a vehicle for an assault on Protestantism.” Similarly, Glen Archer—the executive director of Protestants and Other Americans United, who thought that “clericalism is an even greater danger to America than is Communism”— protested in 1954 against the “subtle propaganda and efforts to exploit the fear of communism for Roman Catholic political purposes.”30 Of course, some thought that liberals were stirring up fears of Catholic subversion to distract attention from communist subversion. Henry D. Aiken—an associate professor of philosophy at Harvard—therefore protested: “I do not think that it is a question which is being animated either indirectly or directly by Communist sympathizers or dupes.”31 Whether from anti- Catholic animus or procommunist sympathy, the typical liberal stance was to denounce the threats as equal. Radical liberals at the ACLU might defend communists and disparage Catholics, but many more liberals self-consciously rejected both. A studiously centrist 1951 Beacon Press pamphlet explained that the political meaning of the word “liberal” was “a party which attempts to walk in the middle of the road with slight veerings, perhaps, to the left.” Similarly standing apart equally from Catholicism and communism, a 1954 article in the New Age complained that both are “enemies of human liberty,” and each is “using every trick in the propaganda bag to gain its ends.” Both theological and ideological subversion therefore had to be cordoned off from democratic politics.32 California Loyalty Oath for Nonprofits A California loyalty oath illustrates how measures against subversive speech could be applied to nonprofits. This sort of suppression, however, seemed to many liberals too narrowly focused on communism. Numerous states had imposed loyalty oaths on teachers in public or taxexempt schools. Most notoriously, the New York legislature in 1934 had declared it unlawful for any citizen of the United States to teach in a public or tax-exempt educational institution unless he had sworn that he would support the federal and New York constitutions. In 1952, however, California went further; it imposed a loyalty condition

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on all public employees and all tax-exempt organizations. Responding to fears about communism, especially communist infiltration of government and nonprofits, Californians adopted a constitutional amendment denying public employment and tax exemption to individuals and organizations that failed to declare their loyalty. Of particular interest here, tax exemption would not be available to an organization that “advocates the overthrow of the government . . . by force or violence or other unlawful means” or that “advocates the support of a foreign government against the United States in the event of hostilities.” The legislature carried out this amendment by denying property tax exemption to organizations whose applications failed to include a declaration that they did “not advocate the overthrow of the government” and so forth. Fears of subversion thus resulted in a loyalty condition on tax exemption, primarily as to nonprofits.33 A small number of churches refused to comply. Led by a few Unitarian congregations, they applied for tax exemption but only after crossing out the loyalty declaration. Most prominently, the First Unitarian Church of Los Angeles voted in early 1954 against any agreement to the declaration and immediately prepared for litigation. Their pastor, the Reverend Stephen H. Fritchman, who had been listed by House Un-American Activities Committee as a sponsor of “no less than 22 pro-soviet organizations,” was sufficiently devoted to liberal ideals that he refrained from “pulpit persuasion” against the declaration, until the congregation’s board voted against it. A mimeographed statement issued by the church to reporters protested: “The new California statute requiring a declaration of political opinion from churches and other institutions, in return for tax exemptions, is a frontal assault on freedom of religion as guaranteed by the first amendment of the U.S. Constitution.” Looking ahead, the statement warned that this “pattern . . . if not stopped now, will reach beyond teachers, public officials, and churches. It will reach every single citizen at every point of his life, and American freedom of opinion and conviction will have disappeared. It is against this disaster that we are standing today.”34 The constitutionality of the California restrictions on tax exemption reached the U.S. Supreme Court in 1958 in a companion case, Speiser v. Randall, in which World War II veterans argued that the loyalty declaration violated the freedom of speech and procedural due process. In dicta, the U.S. Supreme Court said that “a discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech.” The Court rested its holding, however, on the lack of adequate procedures, saying that the state’s “enforcement through procedures which place the burdens of proof and persuasion on the taxpayer is a violation of due process.” It followed that

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claimants “could not be required to execute the declaration as a condition for obtaining a tax exemption.” On the same day, the Court reached the same conclusion in the case brought by the First Unitarian Church.35 Throughout this episode, and ever since, California’s focus on communist subversion troubled many liberals. But this was not the end of the matter, for there remained the possibility that the danger of subversion among nonprofits could be dealt with in a more ecumenical way. Foundations and Universities As in California, so too at the federal level, anticommunist fears often focused on nonprofits, especially foundations and universities. As Frederick Keppel had realized, their tax-exempt status was their Achilles’ heel. The House of Representatives systematically investigated the influence of major foundations. Beginning in 1952, the Cox Committee inquired whether tax-exempt foundations and comparable organizations were using their resources for “un-American and subversive activities.” Early in 1954, a second committee, the Reece Committee, expanded the inquiry by asking whether such organizations were using their resources for “un-American and subversive activities; for political purposes; propaganda, or attempts to influence legislation.” As René Wormser—counsel to the second committee—afterward explained, the concern was that tax- exempt organizations “may exert political influence, support subversion, or exhibit tendencies conflicting with our national traditions.” In particular, there seemed to be a threat to “our democratic aspirations.”36 For this anticommunist committee, as for Americans with concerns about the Catholic Church, subversion was not easily distinguishable from dissenting speech. Wormser explained: “In contemporary usage and practice,” subversion “does not refer to outright revolution, but to a promotion of tendencies which lead, in their inevitable consequences, to the destruction of principles through perversion or alienation.” It was not a “sudden, cataclysmic explosion, but a gradual undermining, a persistent chipping away at foundations upon which beliefs rest.” The idea of subversion thus tended to confuse antigovernment violence with mere speech. Wormser candidly admitted that subversion “can easily be confused with honest, forthright criticism.”37 To be sure, “open and honest criticism” was “desirable,” but subversion by tax-exempt organizations was a different matter. In Wormser’s eyes, their exemption justified suppression: “Fundamental to the entire concept of tax exemption for foundations is the principle that their grants are to be pri-

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marily directed to strengthening the structure of the society which creates them. Society does not grant tax exemption for the privilege of undermining itself.”38 The final hearing of the Reece Committee occurred on the very day that Lyndon Johnson proposed his campaign restriction for section 501(c)(3), and later that year, the committee’s final report concluded: [T]he wording of the tax law regarding the prohibition of political activity should be carefully re- examined. We recognize that it is extremely difficult to draw the line between what should be permissible and what should not. Nevertheless, the present rule, as interpreted by the courts, permits far too much license. While further study may be indicated, we are inclined to support the suggestion that the limiting conditions of the present statute be dropped—those which restrict . . . the prohibition of political activity “to influence legislation” and those which condemn only if a “substantial” part of the foundation’s funds are so used. These restrictions make the entire prohibition meaningless. We advocate the complete exclusion of political activity, leaving it to the courts to apply the maxim of de minimis no curat lex. Carefully devised exceptions to this general prohibition against political activity might be made in the case of certain special types of organizations, such as bar associations. Whatever the difficulties which foundations may face in determining when a proposed activity may have political implications, we cannot see any reason why public funds should be used when any political impact may result.

To prevent subversion, there had to be a “complete exclusion of political activity.”39 This was not the only such demand for suppression. The Senate Internal Security Subcommittee had recommended the monitoring of academic institutions and the imposing of controls to ensure their loyalty. And McCarthy, of course, added his own threats. He warned academic institutions that they might lose their tax exemption if they failed to crack down on professors who pleaded the Fifth Amendment before his committee.40 These anticommunist suspicions of universities mirrored the antiCatholic fears of private schools. Most private grade schools inculcated Catholicism and therefore seemed, to many liberals, profoundly antidemocratic. Similarly, universities and foundations appeared, to many conservatives, antidemocratic in their tolerance of, and even fascination with, communism. Anti-Catholicism and anticommunism could thus find common ground in a general liberal fear about the subversive tendencies of religious, educational, and charitable organizations.

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The anxieties about subversion that began with the Catholic Church thus eventually extended out to Protestant churches and a wide range of other idealistic associations. Most private schools were Catholic, many charities espoused authoritative visions of religion, some educational organizations were vociferously conservative, and some foundations seemed to be leaning toward communism. Whether their bent was ecclesiastical or ideological, the fear was that such organizations, through their speech, exerted an influence that subverted democracy. And whether as to churches, schools, charities, or foundations, the fears of subversion led to bullying suggestions about limiting their speech or withdrawing their tax-exempt status. If their speech was anti-democratic in its influence over individuals, and if the content of their speech was often subversive, then perhaps their tax exemption ought to depend on their refraining from much political speech.

Section 501(c)(3)’s Restriction on Campaigning as a Response to Fears of Subversion That fears about subversion played a role in section 501(c)(3) is especially clear as to the campaign restriction added to it in 1954. Much was happening that year. Until the mid-twentieth century, the nation had been wracked by anti- Catholic and anticommunist visions of subversion. But this was changing, partly because Americans were becoming fatigued by these divisions, but also partly because another division, over race, was rising to the political surface of American life. On July 1, 1954—the day before Johnson proposed his tax code amendment denying tax- exempt status to nonprofits that engaged in campaigning—the vigorously anticommunist Senator Pat McCarran had proposed (as he had the prior year) an amendment to deny exempt status to organizations that made donations to “subversive organizations or individuals.” There was already a federal statute (adopted in 1950) that barred tax exemption for communist or “subversive” organizations and that denied any deduction for contributions to such organizations. McCarran’s amendment would have additionally denied exemption to organizations that gave to subversive organizations, and it suggests how fears of subversion were leading congressmen to add restrictions on tax exemption.41 But neither the narrow anti-Catholic vision of subversion nor the narrow anticommunist vision can explain section 501(c)(3), for its suppression was much broader, reaching the full range of churches, schools, and charities. In-

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deed, anti-Catholicism and anticommunism were beginning to lose steam, and their collapse was accelerated by the events of 1954. One transformative event was the public repudiation of McCarthyism. For two years, Joseph McCarthy had been grilling Americans, both communists and mere liberals, on their communist affiliations, and in the summer of 1954 he went too far. The Army-McCarthy hearings were televised, and already in May they “captivated” the public—thereby (in the words of Harry Kalven) making “the American public, in a very literal sense, the jury in this case.” Speaking in front of this jury in early June, McCarthy exhibited too much brutality, provoking Joseph Welch—special counsel to the army—to make his famous protest: “Have you no sense of decency sir, at long last? Have you left no sense of decency?” This became the turning point. Almost immediately, McCarthy’s popularity and his aggressive brand of anticommunism went into decline. His excesses discredited the fear of communist subversion that he had so fervently encouraged.42 The changing face of subversion, moreover, was connected to race—in particular, the Supreme Court’s decision in Brown v. Board of Education. Although the nation had been much divided over anti-Catholic and anticommunist subversion, the questions raised by the Supreme Court’s rejection of racial segregation in May 1954 made the religious differences seem small and even began to push differences over communism to the side. It therefore is no surprise that congressmen and other Americans increasingly could no longer rely on narrow anti-Catholic or anticommunist agendas. The repudiation of Joseph McCarthy in the summer of 1954 may therefore have been less transformative than the underlying recognition that a more profound division was about rend America apart. In these circumstances, congressmen and others could find common ground in an expanded, more ecumenical vision of the threat to democracy—a vision that even-handedly included anti-Catholic and anticommunist anxieties but that was not framed in terms of either. From this perspective, such anxieties were merely part of a broader liberal distrust of idealistic associations for imposing their ideas in politics and thereby interfering with individual mental freedom and the nation’s democratic politics. The softened atmosphere was recognized by the ACLU in its 1954 Annual Report. The report began by noting the extraordinary combination of “recent successes,” including, first, the decision in Brown and, second, the recommendation that McCarthy be censured. The third was “something less immediately tangible, but potentially most vital of all”—namely, the “counter- attack by those who believe in variety and freedom throughout

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our institutions of formal education, against the assorted orthodoxies which seek to dictate educational content and method and personnel.” This had “begun to be noticeably effective,” for “you can scarcely pick up a masscirculation magazine these days without finding an article which affords at least some support for freedom of inquiry and communication in public and private schools and colleges and universities.” Of course, the resistance to McCarthyism in educational institutions was only part of the liberal rejection of various types of “orthodoxies.” It was, however, an early indicator of a change in atmosphere—a return to a “calmer time”—in which narrow fears of Catholic and communist speech increasingly sounded strident when voiced on their own.43 Such fears therefore increasingly found acceptable expression only in more ecumenical liberal terms, including complaints about the danger of allowing any religious, educational, or charitable organization, whether Catholic or communist, to intrude its views in politics. Although this shift was already evident in section 501(c)(3)’s 1934 lobbying restriction, it now became more broadly apparent in the nation’s culture, and in this context, Congress added the 1954 restriction on campaigning.

( Section 501(c)(3) thus did not carry out simply an anti- Catholic or anticommunist vision of subversion. Instead, it gave effect to a more general liberal vision, in which the danger came from the speech of all sorts of idealistic associations. Narrow anxieties—about Catholic, conservative, and communist threats to democracy—could find common cause in this more ecumenical anxiety. The result was to soften the tone about the threat to democracy, while broadening the support for democratic suppression of outlying viewpoints.

SEVEN

Political Theory

Liberal anxieties shaped political theory. The nativist-tinged liberal fears that resulted in section 501(c)(3)’s suppression also found expression in liberal theories about the need for religious associations to stifle their political speech for the sake of democracy. And this is revealing both about the liberal theories and about how the tax code’s suppression came to be viewed as legitimate.1

From Theological Liberalism to Liberal Democratic Theory Philosophically inclined readers may bridle at the thought that philosophy should be understood in its societal context, and for some philosophical purposes, such readers may be correct. For other purposes, however, it can be illuminating to understand philosophy in its historical surroundings, and certainly it is revealing about the suppressive implications of liberal democratic theory. The translation of liberal theology into philosophy has a long and mixed history. In the eighteenth century Elihu Palmer already attempted a theologically liberal “system,” and in the nineteenth John Stuart Mill espoused a more broadly liberal philosophy. In the twentieth century, Imperial Wizard Hiram Evans hoped for a philosophic expression of liberal ideals, and as will be seen in this chapter, a host of other liberal Americans, ranging from obscure nativists to notable philosophers, pursued such aspirations. Philosophically, it may be desirable to focus only on the most elevated reasoning of the most elevated individuals, but historically and legally (as already hinted) there is much to be learned by observing the full range of liberal Americans who felt liberal yearnings for a shared democratic philosophy.

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It surely is no coincidence that, in a society so saturated with theological liberalism, many political theorists worried about the danger to democracy from organized religion and demanded that idealistic and especially religious organizations refrain from participating in political debate. Although most twentieth-century philosophers could put aside their narrow religious attachments, they cannot be expected to have put aside the anxieties of the culture in which they lived.

A Shared Democratic Philosophy Many twentieth- century liberal commentators urged that a shared liberal faith or philosophy was necessary for the nation’s democracy. A shared philosophy, however, boded ill for those with nonconforming views. A Liberal Faith Even while rejecting creeds, orthodoxies, and other attempts to place faith in authority, many American liberals sought an alternative, nonreligious faith, which would unite a diverse people. This would be not quite a creed but rather an antiorthodoxy, a liberal faith, or (as some imagined it) a shared democratic philosophy. Catholics had long resisted demands for conformity by emphasizing their distinctive beliefs and by establishing separate schools. Their vision of national unity was therefore not spiritual. In contrast, theological and more generally liberal Americans, most of whom were Protestants, hoped to achieve national unity through a common liberal faith. This yearning for a shared faith was evident already among midnineteenth-century nativist liberals. The Reverend Horace Bushnell, for example, urged Catholics to send their children to public schools so that “we may be gradually melted into one homogeneous people.” In his theological vision of the nation, Americans would thereby become “fellow-citizens with each other, under the state.” Indeed, they would “learn how also to be no more strangers and foreigners, but fellow-citizens with the saints and of the household of God.”2 When radical liberals coalesced in the 1870s in the National Liberal League, they similarly desired a shared national faith, even if a thinner sort. Although, on sociological grounds, they thought the nation needed a religion, they distrusted not merely Catholicism but all Christian churches and in their place sought a civil religion stripped of otherworldly faith and even of distinctive beliefs. “We admit that religion is the vital or transforma-

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tive principle of every great national organism; but we deny that religion as construed by the technical religionists of America is the vital or formative principle of this republic.” Instead, “So much only of religion . . . can justly be incorporated into our political institutions as is common to the whole people; namely, so much of it as consists in freedom, intelligence, justice, equal rights before the laws.” This emphasis on consensus or shared religious views for the nation was a hint of the demands for conformity to come.3 In the twentieth century, liberal aspirations for a shared faith of one sort or another became increasingly popular. Writing in his 1922 tract, The Divine Right of Democracy, Clarence True Wilson—the general secretary of the Board of Temperance, Prohibition, and Public Morals of the Methodist Episcopal Church—declared: “Democracy may have many desires, frame many petitions, and make many requests, but can never have but one article of faith, and that is founded on man’s inalienable right and capacity for self- government, and it never can depart from the right of the people to rule.” John Dewey in 1934 went even further, asking Americans to seek an “emancipation” from the supernatural, so that individuals would not submit to the authority of “special” religious groups and would thereby find a “common faith.”4 Predictably, a common liberal faith or philosophy might have severe implications for those who did not participate in it. John Dewey bluntly explained that, from a theologically liberal perspective, churches were in a dilemma. “On the one hand, it is urged that the churches are going outside their special province when they involve themselves in economic and political issues. On the other hand, the very fact that they claim if not a monopoly of supreme values and motivating forces, yet a unique relation to them, makes it impossible for the churches to participate in the promotion of social ends on a natural and equal human basis.” Thus, “[t]he surrender of claims to an exclusive and authoritative position is a sine qua non for doing away with the dilemma in which churches now find themselves in respect to their sphere of social action.” In other words, if churches were not to give up taking positions in public matters, they at least had to give up their claims of religious authority, lest their assertions of authority interfere with the equality and intellectual independence of the people in thinking about politics.5 In expecting churches to conform to theologically liberal assumptions, Dewey popularized views that became widespread in America by the early 1950s; indeed, such views captured the spirit of the time, and this prompted concerns. Against Catholicism, men such as Paul Blanshard prominently

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quoted Dewey on the danger of “a powerful reactionary world organization in the most vital realm of democratic life, with the resulting promulgation of principles inimical to democracy.” On the other side, men as different as James Hastings Nichols and George Huntston Williams worried about the “totalitarian liberalism” of Dewey’s “common faith,” and “the grave danger involved in the conversion of democracy into a religion.” As they put it, “a movement fundamentally hostile to Christianity” had “succeeded in gaining wide influence among Christian intellectuals by posing as the chief exponent of the traditional political ethics of the society”—that is, as the exponent of “democracy.” In pursuit of unity, liberalism had sanctified shared “democratic” beliefs, and even if this was not “totalitarian,” it was utterly conformist.6 Difficulties of a Liberal Creed To be true to liberal ideals, any democratic faith would have to avoid becoming yet another creed—another unthinking recitation of belief, which would impede rather than illuminate the truth. Of course, some commentators, such Clarence True Wilson, assumed that there would be “one article of faith”: the individual’s self-government. But more thoughtful liberals hesitated to go this far. The conundrum that troubled them was how a nation could unite around shared democratic beliefs without sacrificing the freedom of each individual to think for himself. The difficulty seemed particularly severe if shared beliefs or ideologies shaped or limited how individuals saw the world. Perhaps individuals could not easily escape creeds, ideologies, and other shared visions. It thus is worth considering whether Thomas Kuhn’s understanding of “paradigms” arose amid liberal anxieties about how orthodoxies confined individual thought. When teaching the history of science to undergraduates in 1947, he reacted to the readings in Aristotle and Newton by concluding that Aristotle was not “just bad Newton” but was just different. The perspectives of these thinkers were, he soon concluded, different paradigms, in which followers became sufficiently engaged that, when challenged by rational critiques, they did not rethink their general perspective—whichever it might be—but rather preserved it by making smaller adjustments. Only when the entire structure became so burdened by caveats that it no longer could stand did a remarkable thinker, such as a Newton or an Einstein, introduce a “paradigm shift” or scientific revolution. Kuhn published his famous thesis in 1962 as The Structure of Scientific Revolutions, and his analysis of scientific paradigms soon became a standard approach to understanding

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ideologies. Many scholars even turned Kuhn’s vision into its own stifling paradigm.7 What is interesting for purposes of this book is that Kuhn wrote in a world rife with liberal fears about unreasoned attachments to religion and ideology—fears as to how creeds or ideologies stifled individual thought. In this context, Kuhn explored how a paradigm might frame individual thought and how, nonetheless, the paradigm could change. If a creed, ideology, or paradigm was a problem in science, it was apt to be even more of a difficulty in politics. Recognizing a version of this problem, Leo Strauss worried about the political obstacles to philosophic exploration and, from the 1930s onward, argued for the centrality of esoteric meanings in philosophy. Only through these hidden meanings, he thought, could philosophers escape the censoriousness of their societies.8 Evidently, if there was to be a shared democratic faith, it would be difficult to find one that was entirely liberal in leaving each individual free to think and reason for himself. Perhaps most persons could not really think for themselves, and perhaps shared opinion, whether religious or ideological, would always crowd out individual reasoning. Most liberal commentators, however, persisted in their hopes for liberal democracy—for a demos of united but fully independent individuals. How they tried to square the circle will be seen in the rest of this chapter.

Liberal Democratic Theory, from the Nativists to John Rawls The liberal search for unity among independent-minded individuals produced a distinctive sort of political theory, which focused on citizens, their shared democratic commitments, and a renunciation of ecclesiastical speech and even individual religious speech in politics. Although theological liberals of a nativist or anti-Catholic bent laid the foundation for this theorizing, a host of more generally liberal thinkers, notably John Dewey and John Rawls, developed such ideas more elegantly. Civility and Reason In seeking a liberal democratic unity, nativists and other liberal commentators turned to old ideals about civility and reason. Particularly in the 1950s, amid sharp anxieties about Catholicism and communism, the ideals of civility and reason held out hope for a shared democratic faith, in which individuals could both unite and think for themselves. The idea that individuals form religious societies to pursue only their

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religious interests, and that they form civil society to pursue only their civil interests, has long been familiar. John Locke, for example, notably distinguished civil interests and society from religious interests and societies. Locke, however, did not take so specialized a view of civil and religious societies as to suggest that ecclesiastical associations were not to intrude their views into the civil sphere.9 Something akin to so compartmentalized a vision of ecclesiastical and civil authority became widely popular in America only after nativists took a theologically liberal stance against the Catholic Church. Rather than merely distinguish civil from divine jurisdiction, many nativists insisted on a degree of specialization that came close to precluding ecclesiastical expression in politics—although, of course, without barring generically religious expression in politics. The Central Committee for Protecting and Perpetuating the Separation of Church—a group of well-heeled New Yorkers—urged in 1885 that “Civil Government covers the relations of citizens to each other, and to the State”; in contrast “Divine Government concerns our relations, both individually and collectively, to the Supreme Being.” A half century later, in 1927, when Al Smith was running for president, the imperial wizard of the Ku Klux Klan thought that the key question was “whether the Roman Church does, in fact, through the use of religion in a non-religious sphere, control its members in their civic functioning.” The next year Charles C. Marshall explained that “a civil community or state motivated in moral matters through a Roman Catholic solidarity by an ecclesiastical government at Rome differs radically from one motivated by the Civic Primacy of its people within the State. Of that Civic Primacy, free in moral consciousness and conscience, the Roman Catholic solidarity within the State is intrinsically no lawful part.” The Church evidently had only a specialized role, which stood outside the civic sphere.10 To be sure, not all ideas about civil authority were theologically liberal or anti-Catholic. When, however, nativists used such ideas in theologically liberal attacks on the Catholic Church, they very nearly hinted what civility might mean for religious speech. In the 1940s and 1950s, there was a distinct academic turn to the civic and the rational in theologically liberal attempts to cut off the threat from religious and ideological thought. In 1947, Harold Rafton urged the Harvard Divinity School to foster “Humanism, a rationalistic religion based on science, centered in man, rejecting supernaturalism but retaining our cherished moral values.” The existing curriculum already offered the study of “Rationalism”—meaning the “mental attitude” that “accepts the supremacy of reason and aims at establishing a . . . philosophy and ethics verifiable by

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experience and independent of all arbitrary assumptions or authority”— and Rafton therefore suggested that a Chair of Rationalism be established. Among those thrilled by Rafton’s proposal was John Dewey, who voiced his support for a proposal that seemed “so thoroughly in line” with Harvard’s “tradition of liberal leadership in higher education.”11 When speaking at Harvard in 1951, the president of Colby College, Julius S. Bixler, told students that they had an opportunity to “show that democracy, rightly understood, means the application of reason to social experience.” This did not entirely exclude the application of religion to social experience, because Bixler espoused a religious view of rational democracy and a rational view of religion: on the one hand, “democracy itself is part of a reasonable creed expressing our deepest convictions”; on the other, “even faith in God stems from the appeal to reason.” He thus framed democracy as an application of reason, and he hinted that, although this excluded “arbitrary dogma,” it left room for the sorts of religion that “a rational mind can accept.”12 Another proponent of this faith in reason, and of its limits on more traditional faiths, was Horace Kallen—a Jewish professor at the New School and an advocate of “the religion of Secularism.” Writing in 1954, he argued that the separation of church and state required that “the nation’s children grow up readied to join with their fellow citizens of all persuasions and sorts and conditions in the common faith in the American Idea and the common following on the American way.” Whatever this meant, the nation’s children could be readied for it only to the extent they were “saved from the isolationism of creedal indoctrination and denominational hatreds, and have learned that loyalty to a whole which is a union of its parts.” His underlying assumption was that “[f]aith in reason . . . guarantees the freedom of faith, while isolating creedal indoctrination excommunicates reason.”13 In 1955, in his Essays on The Public Philosophy, Walter Lippmann wrote at length about the need for a public philosophy in which a shared civility would be based on a rational democratic faith. He thereby did more than anyone else previously to focus attention on the problem, and he popularized what, in the hands of John Rawls, would become some of the basic components of such a philosophy. Lippmann presented civility not as mere manners but as shared rational conceptions of civil government. Being founded on reason, such conceptions had “universal validity,” and they included the “three values of Liberty, Equality and the brotherhood or Fraternity of all mankind.”14 This tradition of civility had long “permeated the peoples of the West,” and it provided a “standard of public and private action which promoted, fa-

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cilitated and protected the institutions of freedom and the growth of democracy.” A “public philosophy” had thus been “tabled in the liberal democracies,” and although Lippmann worried that it was “not being discussed,” he drew from its history that “there is a public philosophy”—that there is a “body of positive principles and precepts which a good citizen cannot deny or ignore.” Thus, the “poignant question” for current liberal democracies was “whether, and, if so, how modern men could make vital contact with the lost traditions of civility.”15 Although Lippmann did answer this question in detail, he prominently called for his contemporaries to develop the public philosophy for democratic peoples: “If we ask whether the public philosophy can be communicated to the democracies, the answer must begin with the acknowledgment that there must be a doctrine to communicate. The philosophy must first be made clear and pertinent to our modern anxieties. Our reconnaissance has been addressed to that first need.”16 Lippmann’s reconnaissance framed the need for public philosophy in terms of civility and reason. Obviously more would be needed, but he at least raised the question of how ideas of “the public philosophy” could be “recovered” and “re-established in the minds of men of light and leading.”17 Consensus What some, such as Lippmann, put in terms of civility and reason, others cast in terms of consensus or limits on advocacy from distinctive principles. These commentators urged that churches could legitimately participate in public life only on shared or consensus principles—an argument that had sharp implications for the Catholic Church, while leaving room for the overlapping religion of Protestant churches. Waldo Beach—a liberal Presbyterian and Christian ethicist—explained in 1954 that the “real question is not: may churches influence legislation, but rather, to what extent and in what manner?” Predictably, he thought that churches could lobby for shared values, but not their own distinctive positions: It is entirely legitimate for churches to exercise pressure, or “lobby,” for measures which represent broadly Christian and humanitarian values. It is legitimate for a church to lobby for legislation which will protect its own right to practice traditions and mores particular to its own faith, where those are not inimical to the public health and safety (such as for Jewish holiday privileges). It is illegitimate for a church to lobby for legislation which enacts into general

Political Theory / 151 law the position of one church in which other religious groups, who would be subject to that law, may not concur. At this juncture, the state must be checked against partisan and discriminatory legislation.

There thus was no objection to a liberal majority of churches pressing for their common liberal ends, but a church with doctrines that conflicted with the prevailing theo-political consensus could not pursue its views in politics: [T]he churches may and should bring pressure on local, state, and federal governments to enact legislation against political corruptions, for penal reform, against racial discrimination, etc. Nothing in such measures represents the partisan concerns of one Christian group unshared or opposed by another. But where the Catholic Church succeeds in pressuring legislation on birth control restrictions, as in Massachusetts and Connecticut, or on divorce laws, where patently this legislation runs counter to conscientious Protestant or Jewish belief, the Roman church exercises undue prerogative, and should be restrained, if it will not restrain itself.

Beach added that “[e]xactly the same point holds for Protestants and prohibition legislation,” and although he clearly viewed Catholics as the primary offenders, he undoubtedly was sincere. His point, however, was that any church pressure and lobbying for positions outside the consensus was “illegitimate” and that a church therefore should restrain itself. This illegitimacy boded ill for churches with outlying opinions. And although it was merely a matter of self-restraint, which sounded voluntary, it came with a threat, especially against the Catholic Church: that it “should be restrained, if it will not restrain itself.”18 Another who urged conformity to a liberal consensus was John Bennett—a prominent scholar at the Union Theological Seminary—who in 1958 published Christians and the State. He took care to caution his readers against anti-Catholic prejudice, and he would later forge close ties with Catholic institutions. He was prone to speak, however, in a conventional liberal manner about “the dogmatic intolerance which is itself a part of the Catholic faith.” And underlying much of what he wrote was his concern about “the real tension between an authoritarian, centralized hierarchal Church and the spirit of an open, pluralistic, democratic society.”19 Although he did not expressly mention section 501(c)(3), he clearly was conscious of its limitations, and he laid out the theologically liberal objections to overt lobbying by churches—or at least by the Catholic Church. On the one hand, “The American pattern of separation of Church and state

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has never meant that Churches should not seek to influence the policies of the state.” On the other hand, “The Church as Church is limited in the kind of guidance it can give to its own members or the community at large on political issues.”20 Like Beach and so many earlier nativist liberals, Bennett did not demand that churches be directly suppressed but rather asked churches and their leaders to suppress themselves. They “should be self-restrained in these matters and not lay down the law on issues which are largely technical or which involve strategic judgments for which there is no Christian wisdom.” This was a narrow view of Christianity and its wisdom.21 He particularly objected to churches expressing their views when they argued from their own distinctive doctrines. Following long-standing theologically liberal arguments, he urged that no church should press its distinctive views: “[N]o Church, no matter how powerful, should bring pressure on the state to enact laws which are based upon principles that depend for their validity on its own doctrine or ethos”—as if churches could participate in public life only if they suppressed their distinctive principles and argued merely from principles that enjoyed a consensus.22 Similarly, a church—centrally the Catholic Church—could not argue for legislation that others thought conflicted with their consciences. The “general principle” was that “[c]hurches should not use their influence to secure action by the state unless such action is based upon broad considerations of justice and social welfare which appeal to the consciences of many outside the Churches.” For example, “[I]t is wrong for the Catholic Church to encourage its members to go to the polls and vote for a law that denies to non-Catholics the opportunity to act in the light of their own convictions.”23 These limitations might seem to prevent “Christian social action,” and Bennett therefore explained how such action was to be accomplished. First of all, it had to be “indirect.” Although an honest observer might have confessed the importance of direct political engagement in matters of profound social concern, Bennett took the evasive position that the “most important type of impact of the Church on society or the state is indirect.” In addition, he suggested that this indirect action was to be done not by a single church but by groups of churches when they had a consensus—this being the Protestant model of political engagement. Thus, when “a denomination, or an ecumenical body, or a group of local Churches, come to a consensus their representatives may at times bring that consensus to the attention of the agencies of government.” He had to acknowledge that this was lobbying within the limits of section 501(c)(3), but he justified it, saying: “Technically,

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this may or may not be ‘lobbying,’ but if it is, it is appropriate provided it is above board and is based upon a careful process for reaching a consensus.”24 Eventually, John Rawls would also expound the necessity of arguing within a sort of consensus, and the Supreme Court would treat religious arguments as indicia that any resulting legislation is tainted under the First Amendment’s guarantees of religious liberty. For now, it is enough to observe how some midcentury philosophizing delegitimized distinctive or nonconforming ecclesiastical speech in politics.25 Democracy In the liberal vision, as George Huntston Williams noted in 1954, “democracy and Americanism” were “subject to conflicting definition and redefinition.” Nativists and other liberals had long been busy redefining what it was to be an American in majoritarian terms of democracy and redefining democracy in liberal terms that limited the speech of churches and other idealistic groups. As a result, rather than a polity in which all persons directly voted on legislation, democracy often seemed an amalgam of liberal ideals—including, perhaps most fundamentally, that idealistic organizations could participate only on the theologically liberal assumption that they and their adherents could not claim superior authority for themselves or their opinions.26 One way of talking about this was to say that groups and their members could not claim that they had special or “exclusive” possession of the truth. English Protestants since the eighteenth century had complained that an “illiberal and exclusive spirit peculiarly characterizes the partisans of popery,” and American liberals, from Channing to Dewey, had complained about any religion, Catholic or Protestant, that assumed an “exclusive and authoritative position.” Writing in 1934, Dewey meant this with regard to not only religious but also political debate, and he was not alone. A decade earlier, a masonic tract, Masonry and Americanism, declared: “Equality in Society forbids church or sect or any other organization to create an exclusive class,” and “Equality in Politics means that our legislature, congress, courts and officials, must be responsible to the whole people, and for any one group of people to demand that responsibility for themselves alone, is to arrogate the powers of government just as definitely as did any Caesar, Czar or Kaiser.” Although the principle tended to be stated generally, the problem, as Conrad Henry Moehlman recognized, was narrowly “Catholic exclusiveness.” Just how far liberals went in elevating this principle can be illustrated by

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Harold Rafton. In 1951, when listing “basic American convictions,” he recited portions of the Declaration of Independence, the Constitution, and the Bill of Rights. Not content with what he found there, he then added other principles: loyalty to country, openness “to all sides of questions which affect us,” and equality before the law to the point of “firmly reject[ing] the idea of exclusiveness for ourselves or exclusion of others.” These “are our fundamental democratic liberties and ideals; and I use the term ‘antidemocratic’ . . . to designate any position contrary to one or more of these points.” Much later, with a similar concern about exclusiveness, John Rawls would write: “Holding a political conception as true, and for that reason alone the one suitable basis of public reason, is exclusive, even sectarian, and so likely to foster political division.” In a liberal democracy, political arguments were not to rest on claims of exclusive truth.27 Another way of stating the issue was to say democracy meant not denying respect or equality to others. As put in Masonry and Americanism, the duty not to impose one’s religious opinions on others went so far as to mean that “we have no right to condemn another’s creed,” and once this was learned, “then we shall be in a position to ask others to respect our creed.” Rudolph Dreikurs—professor of psychiatry at the Chicago Medical School—explained in a 1954 Unitarian tract that “the nature of a democratic relationship” was “mutual respect,” for it was “mutual respect which characterizes the relationship of equals—in fact, there can be no equality without it. If only one is respected, then in the relationship one is superior to the other.” Four decades later, with similar concerns about religious attitudes toward persons of “a different faith,” Rawls would urge that equals in a democracy should “cooperate on a basis of mutual respect.”28 Most fundamentally, democracy meant abandoning claims of authority (what liberals often called “authoritarianism”) and engaging with others on more open assumptions. James H. Nichols—a Presbyterian minister and professor of church history at the University of Chicago Divinity School— wrote in 1954 in the popular magazine Look: “Protestants are concerned about the reluctance of the Catholic bureaucracy to modify its authoritarian methods and enter into the true spirit of a free democratic society.” Indeed, the Church should “adjust its authoritarian procedures to democratic life.” To avoid having the Church seem a “clerically manipulated political power impervious to discussion,” its clergy should “trust the democratic process of free discussion and encourage their people to develop that individual initiative and moral responsibility which are the moral dynamics of a democracy.” Claims of authority thus were to give way to democratic discussion.29

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John Rawls and others would later put this in terms of deliberative democracy: “The definitive idea for deliberative democracy is the idea of deliberation itself.” From the liberal perspective, Catholics and other relatively orthodox Christians were subject to clerical authority, and they therefore were apt to espouse their orthodoxies as authoritative propaganda rather than engage in democratic discussion. In the context of such fears, Rawls urged a “democratic” mode of engagement, in which citizens “suppose that their political opinions may be revised by discussion with other citizens; and therefore these opinions are not simply a fixed outcome of their existing private or nonpolitical interests.”30 Whether framed as a matter of exclusiveness, respect, equality, or deliberative democracy, these liberal definitions of democracy left little room for participation by Americans who claimed theological or other authority. Liberal conceptions of democracy thus allowed liberals to condemn their theological and political opponents as “anti-democratic.” Not for the first time, liberal and more narrowly nativist modes of argument had much in common. John Rawls The liberal democratic philosophy that Dewey, Lippmann, and myriad less talented commentators began to formulate found its most elevated expression in the work of John Rawls, especially his 1993 treatise, Political Liberalism. He occasionally cites prior philosophers such as Immanuel Kant, but as already suggested, his arguments repeatedly reveal continuity with American theological liberalism, including nativist concerns about the need for civility, reason, and consensus among equal citizens in a democracy. Like many other liberals, he seeks a public philosophy, which would be the common liberal foundation for a democratic society. And such an enterprise, as by now might be expected, comes with limits on speech.31 The underlying problem addressed by Rawls in Political Liberalism is how to preserve a tolerant society amid wide-ranging differences in belief. The Constitution’s solution to this problem is to create structures and rights that limit or otherwise moderate power. Rawls’s solution is to argue that Americans have a duty of “civility” to limit what they say in public debate. In one approach to the problem, Rawls concludes that citizens have a duty in public debate—at least in public debate on fundamental matters— to confine their arguments to “public reasons.” The underlying point is that, among equal citizens of diverse views, personal commitments must sometimes be put aside for the sake of the polity. From this perspective, Rawls

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urges that citizens refrain from grounding their public argumentation on religious and other “comprehensive doctrines” where they are incompatible with public reason. He adds that the “only comprehensive doctrines that run afoul of public reason are those that cannot support a reasonable balance of political values.” Tellingly, when explaining “nonpublic reasons,” which must be kept out of significant public debate, he says that such reasons are “those of associations of all kinds: churches and universities, scientific societies and professional groups.”32 Rawls thus urges citizens to hold back at least some of their comprehensive doctrines, so that public debate rests only on suitably public reasoning. Liberal views about rationality, and about the non-rational character of ecclesiastical doctrines, however, are themselves part of a theological tradition. Theological liberals distinguished their reasonable morality and open-minded religious argumentation from their opponents’ unreasonable orthodoxies and closed- minded adherence to supernatural or human authority. Rawls’s liberal “democratic” exclusion of unreasonable comprehensive doctrines, religious or otherwise, thus looks remarkably like an attempt to delegitimize the speech of theological and political opponents. The message is: Shut up, because my views are reasonable and yours are not. Rawls offers another approach to the problem of diverse beliefs by espousing an “overlapping consensus.” From this perspective, what is objectionable in fundamental debates is reasoning that goes outside the society’s overlapping consensus of “reasonable” comprehensive doctrines. Although this is a broad notion of consensus, it predictably excludes some religious views—those that are not reasonable. At the same time, Rawls interprets “public reasons” to confine public speech to a much narrower sort of consensus. He says that “we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense, and the methods of and conclusions of science when these are not controversial.” Indeed, public arguments should, as far as possible, “rest on the plain truths now widely accepted, or available, to citizens generally.” The message thus becomes: Shut up, because you are expressing religious or scientific views too far outside the mainstream.33 Rawls recognizes that his arguments about “public reason” could easily drift into something “incompatible with freedom of speech.” All sorts of earlier liberals, ranging from nativists such as Evans to philosophers such as Dewey, had worried that they were coming close to intruding on constitutional rights and had in various ways disclaimed this. Dewey, for example, veered away from suggesting that churches should give up their political speech by asking them, instead, to sacrifice their orthodoxies and authority.

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Taking the alternative route, many nativists refrained from asking Americans to give up their religious beliefs by asking them, instead, to keep their religious ideas out of the public arena. Rawls inevitably faces the same choices, and like the nativists, he suggests that Americans should sometimes refrain from bringing their religious views into public debate. Rawls expressly avoids recourse to the force of law. Many earlier liberals, including nativists, said they sought self-restraint—merely a voluntary Catholic or more broadly ecclesiastical withdrawal from politics. Rawls similarly says that “the ideal of citizenship imposes a moral, not a legal, duty” and that “the limits of public reason are not . . . the limits of law or statute.” Even with these disclaimers, however, his theory questions the democratic legitimacy of much religious participation in public life—at least, that is, participation by churches and the adherents of churches that are relatively orthodox.34 Although his philosophy is not narrowly aimed at Catholicism or any other particular organization or orthodoxy, it is delicately self-conscious of the possibility that traditional Catholic belief is not “public reason.” Rawls at one point distances himself from an attack on “orthodox Christianity,” but his arguments carry forward the old theologically liberal anxieties about orthodoxies, their claims of authority, their failure to conform to the majority’s liberal consensus, and ultimately their threat to “democracy.” As a young man, Rawls had a “profound engagement with and knowledge of religion,” and as noted by Thomas Nagel, this forms the “background of Rawls’s later views on the importance of separating religion and politics.” Liberal ideas— initially theological and then more broadly political and cultural—framed his understanding of a host of things, including civility, citizenship, deliberative democracy, exclusivity, mutual respect, public reasons, comprehensive doctrines, consensus, and the nonpublic character of ecclesiastical speech.35 In these ways, moreover, Rawls’s liberalism reveals traces of the nativism that had long before become intertwined with theological liberalism. Like the nativists, Rawls worries not merely about the threat from orthodoxy or group speech to the individual, but ultimately about the threat to the state and its democracy. Like the nativists, he is concerned about religious and other doctrines that endanger democratic civility—as when he says that “comprehensive doctrines that cannot support” a “constitutional democratic society” are “not reasonable” and thus not compatible with the “civility” proper in a democracy. Like many nativists, he worries about the equal or mutual relationship of respect among citizens and how it is undermined by the “exclusive” claims of ecclesiastical and other organizations. Like many nativists, he concludes that the speech of ecclesiastical and other

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idealistic associations should be kept out of central political debates. Like many nativists, moreover, he insists that he is attached to freedom of speech and is seeking only voluntary self- restraint. He thereby, in multiple ways, echoes the nativist strain in theological liberalism. Of course, this is absolutely not to say his theory is nativist. Rather, liberalism was substantially shaped by nativist anxieties and the nativist responses to such concerns. It is therefore no surprise that Rawls and many other liberals have shared such ideas. But even as inherited through a more general liberalism, the nativist tendencies that became part of twentiethcentury American liberalism still echo their past. And it is important to acknowledge this, as twentieth-century liberalism cannot be understood without observing the degree to which it incorporates aspects of theological liberalism and even nativism.36 In taking aim at religious and other comprehensive doctrines—or at least unreasonable or outlying versions of them—Rawls is focusing on something slightly different from the speech targeted by section 501(c)(3). The overlap, however, is profound. Recall that when Rawls identifies “nonpublic reasons,” he speaks of the reasons of “churches and universities and of many other associations in civil society.” Traditionally, moreover, most educational and charitable organizations were religious, and many still are. Thus, when section 501(c)(3) restricts the speech of religious, educational, and charitable associations in politics, it has broadly suppressive effects on religious speech in politics. And these effects can be particularly severe for some of the relatively orthodox, who are especially apt to believe in “unreasonable” or outlying comprehensive doctrines, who are often peculiarly attached to the authority of their organizations, and who are therefore precisely those whose political speech is most clearly delegitimized by Rawls’s philosophy.37 None of this is to say Rawls wrote to justify a revenue subsection or any other legal restriction. Rather both his philosophy and section 501(c)(3)’s speech restrictions came out of the same liberal anxieties. Accordingly, it should be no surprise that, in the century when Congress asked religious and other idealistic organizations to accept purportedly consensual restrictions on their speech in politics, a host of liberal philosophers, including Rawls, held voluntary self-suppression to be a moral duty for idealistic associations and even for individuals who adhered to their unreasonable comprehensive doctrines. It is disconcerting, even shocking, to think that there is a heritage of dark anxieties that runs through American liberalism, from early theological liberals, to nativists, and ultimately to men as thoughtful as John Rawls.

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But this is the reality. Rawls’s liberalism fits within the history of liberalism, including theological liberalism and nativism. The point is not to disparage the valuable contributions of a distinguished philosopher but rather to understand the intellectual and cultural history of the United States. Rawls (and various lesser philosophers) did not write in a vacuum. On the contrary, in many of his ideas, he gave refined philosophic expression to the country’s theo-political culture—a culture in which it was “liberal” and “democratic” to demand that churches and other idealistic organizations should censor themselves in politics.

Unacceptable Differences This chapter closes by looking back over some of the ideas discussed thus far, to observe that much liberal democratic theory can be understood as an attempt to secure liberal democracy by defining acceptable political speech. The goal was not to bar all those who did not conform, nor even entirely to bar unacceptable political speech, but rather to preserve liberal democracy by discouraging the political expression of what seemed to be illiberal and antidemocratic opinions. Intolerant of the Intolerant? One of the more interesting questions about tolerance is whether a tolerant society must tolerate the intolerant, especially those whose ideas threaten the very society and its tolerance. John Locke famously answered that tolerance need not be extended to those whose religious opinions justify subversion. John Rawls is sometimes understood to have contributed to this debate, but curiously, he does not propose that subversive, dangerous, or even merely intolerant views be kept out of politics. Instead, he suggests that all unreasonable comprehensive doctrines be excluded. Rather than object to speech that is distinctively dangerous, let alone merely intolerant, he proposes that Americans refrain from political expression of entire points of view. And he adopts this sweeping conclusion on theoretical grounds, without leaving room for any empirical effort to discern whether, in particular instances, the excluded views are really particularly dangerous. This delegitimization of the political expression of entire doctrines is so far from a focus on real dangers to freedom or government that it cannot easily be understood as a response to the problem of tolerating intolerance. On the one hand, in focusing only on comprehensive doctrines,” let alone

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merely those that depart from “public reason,” Rawls’ approach seems much too narrow to be considered a response to the danger of intolerance. On the other hand, in imposing a blanket demand against such comprehensive doctrines, and even against the arguments of religious and other idealistic associations, it seems too broad—barring much that is by no means intolerant. It is therefore difficult to conclude that Rawls’s theory really takes aim at the risk of tolerating intolerance. Rather, it seems to be an expression of liberal anxieties about religious and other orthodoxies—an expression of liberal prejudices against the sort of ideas espoused by those whom liberals viewed as opponents. Civility, Reason, and Consensus as Modes of Conformity In liberal democratic thought, civility, public reason, and consensus were modes of conformity. Whereas earlier in this chapter, these ideals were discussed as presented by their proponents, it now is necessary to consider them more sociologically to understand how profoundly they ensured unity by excluding nonconforming speech. For Rawls, civility is not merely good manners but the duty of members of civil society to participate in the civil sphere in a manner that recognizes its civil character—in particular, by offering public reasons and hushing down religious and other comprehensive doctrines where these are incompatible with public reason. It has been noted how Locke and other political theorists distinguished religious societies and their interests from civil society and its interests. Rawls, however, took the theory of civility a step further, concluding that the civil interests of society and government require reliance on a type of civil reasoning, to the exclusion of some outlying types of religious and ideological opinion. In thus developing ideas about civil government into ideas about civility in speech, he followed earlier theological liberals in giving ideas about civil interests a hard edge, which precluded some nonconforming speech.38 This expectation that Americans should hold back at least some of their outlying religious ideas has long had much appeal, particularly in social settings. At the dinner table, at a private club, and in a masonic hall—in all the places where Americans joined together for convivial purposes— they often expected each other to put aside their religious differences. The masons and other fraternal organizations excluded from their lodges any narrow religious and political opinions that might disrupt their fraternal

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harmony. The Patriotic Order Sons of America, for example, declared: “This Order shall never be used to advance the political interests of any member from a partisan standpoint, or of any individual or political party; nor shall subjects of a partisan or sectarian nature ever be the subject of debate or discussion within the Order.” Divisive opinions were not suitable where men or women hoped to feel unity, and fraternal space was therefore all about segregating controversial speech, including distinctive religious opinions.39 The danger was that, although this ideal of civil restraint began socially, it soon became a civic ideal, which conflated constitutional liberty with masonic- style fellowship. The masonic tract Masonry and Americanism declared, “We want the right to differ—the same right which our Masonic lodge gives us, the same right which the constitution of the United States gives us.” Far from being a full right to differ, this meant, in “practical terms,” that “we must oppose every effort of religious despotism to gain a foothold in the administration of government and education.” The freedom to differ thus might not include the speech of churches, especially not the speech of those that seemed despotic.40 A fraternal vision of political debate flourished not merely among members of fraternal organizations but more generally among theological liberals. In their hope for both individuality and unity, they had repeatedly transcended religious differences by rejecting orthodoxies, and along the way many of them came to view distinctive religious doctrines as merely private matters that were a threat to civil cohesion in the public sphere. Theologically liberal Americans thereby tended to elevate the social civility of putting aside religious differences as a mode of civic unity and as an ideal of political civility. Eager to inculcate this political civility among children, nativists and other liberals celebrated public schools as places where children would leave behind the religions of their homes and learn to mingle on common “American” terms. Of course, the common ground offered by public schools included a watered-down liberal Protestantism and excluded “narrow sectarian” influences, especially Catholicism, for this was precisely how public schools inculcated an “American” or “democratic” consensus. On such assumptions, all sorts of liberal Americans (including masonic and other fraternal organizations, the Ku Klux Klan, the National Educational Association, and a host of educational reformers) espoused public schools as the place where the nation’s children would overcome their differences and develop a shared Americanism.41 Eventually, this conformist vision of putting aside “divisive” religious

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views, whether in fraternal organizations or in public schools, became a model for liberal visions of democracy. Liberal Americans were accustomed to excluding orthodoxies and other dogmatism from civilized conversations. Then, through their demands for separation of church and state, they requested the exclusion of such views from public education. And in addition, through their political theory and through section 501(c)(3), they requested the exclusion of such views even from politics. The goal was not suppression but an appropriate public conversation— a rational and open- minded discussion that rose above private concerns. Nonetheless, when fraternal relations became the model for the public square, social civility redefined public civility. As put by a 1954 article in the New Age, “The legal right of any organization to run its affairs as its management sees fit is not open to question. Its politics and practices must, however, conform to the laws of the land and, in general, should fall within what is considered by the community to be good taste and good form.” In this sort of vision, which conflated private and public civility, it made sense to demand Catholic and other religious restraint in the public sphere. Yet whether put in terms of what was “divisive” or in terms of what departed from “civility,” “good taste,” or an “overlapping consensus,” the effect was to delegitimize dissent from dominant theo-political views.42 Rawls himself recognized at least some of the conformist implications. The role of public reason, he explained, was not “merely to quiet divisiveness and encourage social stability.” But it had at least this role, as he acknowledged: “Faced with the fact of reasonable pluralism, a liberal view removes from the political agenda the most divisive issues, serious contention about which must undermine the bases of social cooperation.” Thus, even in its most refined exposition, liberal democratic theory candidly discouraged debates that would challenge the foundations of social cooperation.43 Civil institutions cannot be confined to merely civil, public, or consensus reasoning, for such things exclude a wide range of human emotion and experience. When understood to mean avoiding divisiveness or conforming to an overlapping consensus, such reasoning often leaves little room for the variety and depth of human feeling that inevitably underlie the politics of this world. When understood to mean areligious reasoning, it excludes some of the most elevated of aspirations. The entire project of reducing discussion of public affairs to liberal visions of civility, consensus, or public reason thus tends to bar a wide range of interior feelings and transcendent ideals, and it thereby leaves the polity adrift from some profoundly personal and perhaps ultimate truths. Government may be largely limited to areligious powers, but it is an illusion—a dangerous illusion—that a people and

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their government can avoid publicly wrestling with matters more soulful than can be reduced to civil, public, or consensus reasoning.a In sum, a dinner table or a lodge is no model for serious education, and even less for the robust freedom of speech that is the foundation of a free society. Free societies depend on searching, even disturbing public debate, and it is therefore very dangerous to shape ideas about the legitimacy of speech around liberal democratic theory. Silencing Theo-Political Opponents Making matters worse, the liberal demands for civil, secular, consensus, or public reasoning tended to come with a blind spot for liberal theology. Such demands were entirely sincere, but theologically liberal reasoning usually got a free pass under liberal political theory. Although liberal ideas were espoused as theology for some purposes, they were viewed as neutral civil or secular reasoning for other purposes. As a result, there was often a liberal failure to see the religious character of liberal ideas. Just as a Catholic majority in the Middle Ages could easily believe that its religious views were natural, so a liberal majority in the twentieth century could effortlessly believe that its religious views went no further than civil or secular reason.b a. Although the secular is commonly framed in opposition to the religious, this book tends to use the word “areligious” or sometimes “nonreligious” in place of “secular,” except when the latter term serves as an echo of the words used by others. The terms “secular,” “secularist,” and “secularism” became popular during the last half of the nineteenth century as labels for the theologically liberal movement on behalf of a wide range of heterodox groups, including not only atheists but also non-Christian Unitarians, spiritualists, and adherents of Auguste Comte’s religion of humanity. George Jacob Holyoake initially promoted the label “secularism” in the 1840s precisely because it obscured the radical character of those who united under it. In America, moreover, secularists were often not so much areligious, or antireligious, as theologically liberal in their support for separation of church and state and their opposition to religious organizations. The word “secular” and its variants thus carry much theological baggage, and it seems more accurate to contrast “religious” with “areligious” or “nonreligious.”* b. This can be seen already in the approach taken to separation of church and state in the 1860s by Octavius Brooks Frothingham—a Unitarian and Transcendentalist minister who would soon establish his Independent Liberal Church and who would later become a vice president of the National Liberal League. Taking what initially seemed a remarkably tolerant position, he asked his fellow Protestants why they singled out Catholics when complaining about the influence of clergymen teaching in public schools. “But why confine our jealousy to the Romanist? Why not suspect every religionist as such—the Episcopalian, the Baptist, the Methodist, the Presbyterian, the Unitarian, the Universalist? Why not suspect everything that threatens to color common-school teaching with sectarian hues?” On this apparently equal basis, he questioned whether any clergymen should teach in public schools: “ ‘Is a teacher less prepared to instruct the people in letters, because to the learning of the schools and the wisdom of men he adds divine

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In contrast, the distinctive views of distinct churches often departed from the civil consensus and therefore were unmistakably religious. And Catholic views seemed especially divisive and out of place in the public deliberations of a liberal democracy. Admittedly, sophisticated liberals did not speak in narrow terms about the danger from Catholic doctrine. Instead, they complained about orthodoxies and ideologies, and Rawls expressed concern about “comprehensive doctrines.” One way or another, orthodox views stood out and were especially apt to be delegitimized as incompatible with individual thinking, shared rationality, civil interests, mutual respect, democracy, or public reason. Although the theological and nativist denigration of the speech of others has been philosophized, it is difficult to avoid noticing the persistent liberal attempts to induce opponents to silence themselves—sometimes voluntarily, and sometimes under legal pressure. Almost all of the liberal critiques of the speech of others were framed as requests for consensual self-censorship. But they sometimes also came with somber intimations of something more forceful. And in section 501(c)(3), which offered idealistic organizations a “choice” between their speech and taxation, these hints became a matter of law. Democracy When considered in the context of twentieth-century liberal culture, the ideal of democracy loses some of its luster. Although upheld in the abstract as an American ideal, it looks in reality like a threat to liberty. The United States is not a democracy, but rather a republic. In fact, it is compound republic—with both state and federal layers—which is complexly structured at each level to divide power, and which is subject (as explained in Federalist 10) to a mode of election that carefully refines representeaching and the Word of God?’ We answer frankly, ‘Yes’; if the two classes of learning are mingled together, or if the teaching of divinity and the Word of God crowds out, takes precedence of, limits, defines, or colors the instruction in letters and the wisdom of men.” Thus, all clergymen had to be excluded from teaching in public schools. But this argument barred only Frothingham’s theological opponents, for in his view, the religious beliefs of Rationalists and Unitarians were entirely aligned with secular interests: Rationalists and Unitarians—who reject the scheme of salvation, whose religion is chiefly ethical, who preach up the interests of this life, intellectual culture, domestic virtue, social kindness, the priceless worth of the simply human relations—may mingle such religion as they have with education, because education is their religion. But evangelical men, who are supremely interested in the salvation of souls, cannot confound them with secular interests, without encountering the dangers of compromising both.*

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tation by passing it through intermediaries, such as electors. Nonetheless, in the nineteenth and twentieth centuries, nativists and then, more broadly, liberals celebrated America as a democracy, with sobering results. “Democracy” thereby became a political and philosophic code word for the sort of society that so many liberals sought—a society in which individuals stood alone in relation to government. Although this individuality may initially sound liberating, it came (as Tocqueville understood) with an enervating equality—to be precise, an equal weakness in relation to government. Americans traditionally overcame this equal weakness through their voluntary associations, but this became increasingly difficult when the speech of such bodies was condemned as the “propaganda” and “influence” of antidemocratic and thus “subversive” organizations. “Democracy” has unfortunately often served as a slogan for a liberal attack on the legitimacy and sometimes even the legality of nonconforming beliefs. It is one thing to uphold the majority as the foundation of legislative power, but quite another to elevate “democracy” as the measure of minority rights—especially in speech, petitioning, and religion. The overall effect has been to judge the legitimacy of politically engaged speech in majoritarian terms, thereby undermining the legitimacy of religious and other organizations that provoke liberal majoritarian anxieties for “democracy.” In such ways, the shades of subversion linger. Under the flag of “democracy,” much of the old liberal and nativist conformism survives in politics and philosophy. The danger that liberal ideals of democracy—even as espoused by philosophers such as Dewey and Rawls—may be delegitimizing open discussion has not gone unrecognized, even by liberal philosophic commentators. The worries about Dewey’s “totalitarian liberalism” have already been noted. In more measured tones, Alexander Meiklejohn complained that when Dewey and his allies spoke of liberal and American ideas, they all too often condemned those who disagreed as “unAmerican” and as “challenging liberal thought.” More vigorously, Andrew Koppelman warns that Rawlsian ideas about civility have been used to tell political opponents that their views “ought not to govern political decisions.”44 It thus becomes apparent that political theory is too important to leave to political theorists. The theorists are understandably more attached to theory than history, but they are often part of the history in ways they do not acknowledge. They thereby end up peddling theories without sufficient recognition of the underlying theological and cultural context, and in thus floating above the societal realities, they have gone far in delegitimizing the political speech of religious and other associations. It is therefore important

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to place the political theory in its theological and cultural context. In this way, one can begin to recognize how much the political theory presents generalized but not entirely sanitized versions of long-standing “democratic” demands.

( This chapter has shown how liberal ideas, including arguments for selfsuppression, moved from theology to philosophy. This was part of the process whereby narrow liberal fears about Catholicism and communism developed into more general fears about religious and other idealistic associations. Although the narrower fears and animosities persisted, they increasingly were understood, or at least were more tastefully expressed, in terms of ecumenically philosophic fears about all sorts of orthodoxies and ideologies. Evidently, the liberal demands for associations to stifle their political speech did not come only from uncouth extremists; nor are such demands merely a matter of past prejudice. On the contrary, they have been a central element of liberal democratic theory—a theory expounded by numerous liberal intellectuals and ultimately by one of the most widely respected of twentieth-century philosophers. It is tempting to dismiss the demands for self-suppression as old and crude, but they remain potent and have consistently found support among both the most base and the most genteel of Americans. More generally, part II has shown how liberal ideals asked churches and other idealistic associations to suppress their political speech, especially their campaign speech and propaganda to influence legislation. Imperial Wizard Hiram Evans demanded legal clarification of the speech rights of churches; Frederick Keppel advised foundations to refrain from propaganda; Rawls philosophized the value of civility. And many less prominent liberals made similar points—as when Waldo Beach and John Bennett urged churches to exercise self-restraint. Across the spectrum of liberals, there have been democratic demands for churches and other idealistic organizations to suppress themselves, and thus, even before examining the unconstitutionality of section 501(c)(3), its suppression of speech should be no surprise.

EIGHT

The Force of Law

What began as theo-political demands soon entered the tax code as conditions on tax-exempt status. And this raises a basic question about the force of law. If Congress had imposed section 501(c)(3)’s speech restrictions as legal duties—subject to a tax or to civil or criminal penalties for noncompliance— there is no doubt that the restrictions would be flatly unconstitutional. Congress, however, framed the speech restrictions as conditions of tax-exempt status. Its goal appears to have been to circumvent the First Amendment by acting indirectly, without imposing a legal duty. And because the restrictions were stated as conditions, and thus as consensual, it has been widely supposed that they avoid constitutional difficulties. An examination of section 501(c)(3) nonetheless reveals that its restrictions on speech are direct constraints—that they come with the direct force of law. Much scholarship claims that the section merely imposes conditions, which are consensual and thus constitutional. But this turns out to be deeply mistaken for three reasons. First, section 501(c)(3)’s exemptions are not subsidies or tax expenditures; second, even if they are subsidies, the conditions on them are neither germane nor proportionate; third, section 501(c) (3) actually imposes its unconstitutional restrictions as alternate duties—to remain silent or pay a tax on speech—and it thus directly constrains. For all three reasons, it imposes its suppression with the direct force of law.

Disguised but Real Force Americans are accustomed to worrying about threats to liberty in dramatic terms. In the typical vision of oppression—based on the Inquisition or Nazi death camps—powerful individuals directly and deliberately exert force to

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harm the weak. America, however, is a free society, with constitutional protections for rights, backed by relatively enlightened public opinion, and oppression therefore does not always follow Old World tropes. In America, oppression usually comes from “democratic” majorities, it typically is justified as necessary to protect the majority and its democracy from powerful minorities, and it ordinarily is imposed in a way that goes through at least the pretense of avoiding constitutional difficulties. It therefore should be no surprise that section 501(c)(3) disguised its force by working through a mechanism other than an obvious legal duty. Nativists and other liberals had long celebrated “American” and “democratic” constitutional freedoms, including free speech, and the liberals who demanded or legitimized the suppression understood themselves to be profoundly attached to this right. Therefore, when espousing limits on speech for the sake of “democracy,” they went through the motions of caring about speech rights. It has been seen that although Imperial Wizard Hiram Evans took aim at the Catholic Church in self-consciously “liberal” terms, he unctuously insisted on preserving constitutional rights, explaining that he merely wanted the rights and duties of churches to be defined and codified. Most commonly, liberals explained that they were merely asking the Catholic Church to show self- restraint—to silence itself, so as to avoid being silenced. For example, Paul Blanshard denied any interest in overt coercion, although he hinted that if the Catholic Church did not take care, an indignant demos would not restrain itself. Similarly, in section 501(c)(3), Congress purported to seek voluntary restraint, while taxing organizations that failed to comply. Rather than recognize the game that was being played, lawyers largely assume that section 501(c)(3) does not impose its restrictions with the force of law. The history, however, is an initial indication that this is a mistake. Section 501(c)(3) arose amid powerful “democratic” demands for outlying organizations to silence themselves, and these demands came from men who hoped for a suppressive mechanism that would preserve their reputation for being attached to the First Amendment. The history thereby calls into question the complacent assumption that, because section 501(c)(3)’s restrictions are framed as conditions, they are innocent of force. But does a constitutional analysis of section 501(c)(3) confirm what the history suggests? Ostensibly, the section’s speech restrictions are consensual. At the same time, as will be seen in this chapter, the section directly constrains; it directly suppresses the speech of idealistic organizations with the force of law.

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Exemptions as Expenditures? The initial question is whether section 501(c)(3) is a form of spending— that is, whether it is a tax expenditure and thus a sort of subsidy. If so, then it would be plausible to claim—as do the section’s defenders—that it merely states conditions and does not impose the force of law. From this point of view, when the government exempts churches, schools, and charities, it is really spending money on them, and section 501(c)(3)’s restrictions are thus not direct constraints but merely conditions of government largess. Accordingly, when the organizations accept the money, they freely consent to the conditions, thus making the restrictions consensual and constitutional. It is a consoling theory, if it can be sustained. Tax expenditure theory, however, even if useful for economic analysis, is a poor guide for constitutional law.1 Proves Too Much An initial problem with applying tax expenditure theory to tax exemptions such as those in section 501(c)(3) is simply that this proves too much. If a government decision not to tax someone were the same as a government grant of money to that person, all sorts of clearly unconstitutional results would follow. The basic difficulty is that, if refraining from taxing amounted to spending, then all Americans would always be recipients of government largess. Whatever the tax rate, the government might have taxed them at a higher rate, and the decision not to impose the higher rate would be a tax expenditure. The government would be spending merely by not imposing a higher tax, and on this foundation, it could extend section 501(c)(3)’s restrictions to all Americans. To make this concrete, imagine that the government taxed all individual income at a flat 50 percent rate, but exempted taxpayers on a sliding scale, according to the amount of their income—so that high-income taxpayers had a small exemption and low-income taxpayers enjoyed a large exemption. One might conclude that almost all Americans would thereby be recipients of government largess and thus vulnerable to conditions on their political speech, not to mention other rights. But this is absurd. The government cannot restrict speech wherever it refrains from taxing, and although one reason is that restraint in taxing does not, by itself, constitute govern-

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ment spending, another reason is that such an argument would justify widespread suppression.2 Of course, exemptions can have a subsidizing effect. A clear example is where an organization is dedicated to producing income, and the government nonetheless exempts some of its income from the income tax. All of the income of this sort of organization would ordinarily be subject to tax, and the exemption thus functions as a subsidy. But even this type of exemption, which clearly has a subsidizing effect, cannot be viewed as the equivalent of government spending for purposes of analyzing constitutional rights. Again, the reason is that it proves too much. If exempting someone from an otherwise applicable tax were really a mode of spending, and if the exemption could therefore be accompanied by restrictions on constitutional rights, then the government could suppress speech wherever it simply relented from imposing higher taxes. It would be worrisome enough to conclude that the government could restrict the political speech of Americans by paying cash for their silence. But the theory that tax exemptions are expenditures is even worse, for it suggests that the government does not even have to pay for political silence. Instead, under this theory, the government is spending wherever it does not impose a higher tax rate, and it thus can impose speech conditions more or less at will. The government thereby (as will be seen later) places taxpayers in the invidious position of choosing between paying a higher tax rate or giving up their political speech. Thus, even where the theory that exemptions are expenditures makes sense economically, it proves too much to be useful for constitutional analysis. Under this theory, the government could tax all Americans for their speech, and the law would be none the wiser. Traditional Understanding of Nonprofit Exemptions A further problem with the subsidy view of section 501(c)(3) is that it traditionally was understood that the income tax did not apply to nonprofit organizations and that the exemptions of nonprofits simply reflected this. In other words, rather than provide subsidies, the exemptions merely recognized the boundary or baseline of the income tax. From this perspective, the exemptions are not expenditures, and they therefore cannot justify section 501(c)(3)’s restrictions as conditions on spending. For a long time, legislators and lawyers simply took for granted that both property and income taxes generally did not apply to nonprofit bodies. The exemption of churches from property taxes was so widely accepted in the

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early Republic that some states did not even specify this sort of exemption by statute. Massachusetts, for example, enacted an exemption only in 1837, New Hampshire only in 1842, and New Jersey only in 1851. In the Civil War era, all states and territories (other than Arkansas) exempted churches in one way or another from taxation. The California legislature abandoned the exemption of churches in 1872, but in 1900 (by means of a constitutional amendment) the state reverted to such exemption.3 One common underlying assumption was that churches, schools, and charities held property and accumulated income not narrowly for themselves but for the greater good. Particularly in justifying exemptions from state property taxes, nineteenth- and twentieth-century lawyers often observed that churches and other idealistic organizations served a “state function”—even that they “aided society more effectively and efficiently than government” and that government therefore exempted them from taxation.4 Another, more powerful underlying assumption was that nonprofits were not ordinarily the sort of bodies to which property or income taxes applied. Rather than merely a justification of nonprofit exemptions, this argument was widely understood to reflect the scope or definition of the tax system. Thomas Cooley explained that, as to property taxes, exemptions such as those for churches were “to be looked upon rather as being in the nature of limitations of the general rule, than as exceptions from it.” The same was even more clearly true as to an income tax. Nonprofits were not formed for purposes of acquiring income. Even where such organizations (such as hospitals) regularly brought in much wealth, they did so for their nonprofit purposes, not for getting income. Indeed, they could not treat such money as income and distribute it to shareholders. These organizations were therefore not the sort of bodies that were ordinarily subject to income taxes.5 On this conception of the matter, the exemptions for nonprofits in the federal income tax simply demarcated the boundary or baseline of the tax. Rather than special exemptions from the tax, they were the means of revealing its outer limits. After drafting the income tax provisions of the Revenue Act of 1913, Representative Cordell Hull argued against altering its exemption clauses to expressly include “benevolent” and “scientific” organizations—not because he opposed exemption for such organizations, but because the statute’s taxing clause applied only to net income and thus already excluded such groups. “Of course any kind of society or corporation that is not doing business for profit and not acquiring profit would not come within the meaning of the taxing clause. . . . So I see no occasion whatever for undertaking to

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particularize.” On the contrary, “the better way is to follow the exemption clause that has been well defined and understood heretofore without any particular objection.” Echoing Hull, Boris Bittker later observed that “the exemption of these organizations from income tax is not a preference or special favor, requiring affirmative justification, but an organic acknowledgment of the appropriate boundaries of the income tax itself.” As put by Edward Zelinksky, the exemptions “define the base of the relevant tax, rather than subsidize.” The exemptions therefore do not justify otherwise unconstitutional restrictions on constitutional rights.6 a Tax Expenditure Theory Does Not Apply Nor does tax-expenditure theory justify the speech restrictions. Whatever one’s conclusion about the baseline of the income tax, the tax-expenditure theory has never been considered applicable. Not even Stanley Surrey—the leading proponent of tax expenditure theory—thought that tax exemption under section 501(c)(3) was a tax expenditure. Surrey framed his theory to expose the “special tax provisions” that were “designed expressly to achieve objectives similar in nature to those of direct government expenditures.” He therefore included deductions under section 170 among these hidden subsidies, but not exemptions under section 501(c)(3).7 Similarly, when the federal government annually measures the economic effects of the income tax, it regularly acknowledges that 501(c)(3)’s tax exemptions are not expenditures. The deduction of contributions to section 501(c)(3) organizations has a subsidizing effect for donors, and thereby also for 501(c)(3) organizations, and from this perspective, the Joint Committee on Taxation counts such deductions as “tax expenditures.” In contrast, the committee does not take this view of the exemptions. Recognizing the fiscal realities, the committee concludes that generally, with respect to nonprofit organizations, “tax-exempt status is not classified as a tax expenditure.”8 How, then, has the tax expenditure theory come to be applied narrowly to section 501(c)(3) for purposes of denying First Amendment rights? When a theory is misapplied in so selective and invidious a manner, there must be a reason.

a. Because the argument here about the baseline of the income tax is ultimately statutory, there remains the interesting question as to whether, in permitting an income tax, the Sixteenth Amendment allowed the taxation of nonprofits. That, however, is another problem, for another day.

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Theological Prejudice and the Application of the Tax Expenditure Theory to Churches A large part of the explanation lies in prejudice. Theological prejudice underlay the growing opinion that section 501(c)(3)’s exemptions are subsidies or tax expenditures. And this has constitutional significance, as it confirms that the tax expenditure theory cannot justify the speech restrictions as conditions on spending. The prejudice was centrally theological; it was an expression of animosity by theological liberals against the institutions that mattered for their theological opponents. Beginning in the 1870s, as already noted in some prior chapters, a diverse group of theologically liberal theists and atheists organized themselves under the rubric of “Liberals,” not least in opposition to tax exemption for churches. Taking theological liberalism further than most of their contemporaries, many of these Liberals candidly opposed Christianity and, indeed, all distinct religions, and they therefore organized in support of separation of church and state. From this point of view, their founder, Francis Ellingwood Abbot, began his 1872 Demands of Liberalism: “We demand that churches and other ecclesiastical property shall no longer be exempted from just taxation.” Three years later, a committee of the National Liberal League urged that separation of church and state precluded “the exemption of church property from taxation” in the same way as other “direct or indirect appropriation of public money for sectarian purposes.” Like Protestant nativists, many Liberals worried about how “the non-taxation of church-property promotes the rapid accumulation of wealth and power in the hands of the Roman Catholic Church,” but in their more expansive theologically liberal antagonisms, they more broadly resisted the exemption of all religious organizations. Ever since, secularists and allied theological liberals, from Robert Ingersoll to Madalyn Murray O’Hair, have objected to the exemption of churches from taxation. As put by Ingersoll, “To relieve their property from taxation is to appropriate money, to the extent of that tax, for the support of the church.”9 More narrowly anti-Catholic theological liberals joined the bandwagon. Most prominently, President Grant courted anti-Catholic votes in late 1875 by proposing “the taxation of all property equally, whether church or corporation,” with only a “possibl[e]” exclusion of “church edifices.” Echoing nativist rhetoric about the coming Armageddon between American Democracy and Roman Catholicism, he warned of a second civil war, over religion, and urged that if church property were not taxed, it might be sequestered “without constitutional authority and through blood.”10

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Already in 1876, in response to the Liberals and especially President Grant, George H. Andrews—one of New York City’s tax commissioners— defended the exemption of churches. He observed with disgust that Protestants and others who were divided over all sorts of theological and practical matters could find unity in a “common spirit of hostility” to the Catholic Church. Amid this “spirit of persecution,” it was clear that “whatever euphemistic phrases may be resorted to, a desire to obstruct the growth and circumscribe the influence of the Roman Catholic Church gives whatever vitality it may possess to the proposition to tax church property.”11 The “extreme opponents of church exemption”—whether nativists or other liberals—“insist[ed] that the exemption . . . is equivalent to a direct grant or appropriation from the public treasury to the church.” To this, Andrews replied: “No other property which is not, and never can be made, productive, is taxed by the state.” Such property was “unproductive” for many reasons, not least because “the law does not permit a religious corporation to dissolve, and divide the proceeds of the property among its owners, or, as they may be considered, stockholders. This fact at once takes church property out of the category of ordinary property subject to taxation.”12 The subsidy theory long remained a theologically aggressive opinion. During the first half of the twentieth century, it was most persistently espoused by theological liberals who carried on the secularist anti-Christian tradition of the National Liberal League. The assault on exemptions thus came mainly from what a Catholic observer called “the cranks of politics and religion” and what Carl Zollmann more neutrally described as “those who were adverse to churches.” The anarchist James F. Morton, for example, took aim in a 1916 Truth Seeker pamphlet at all churches (although especially the Catholic Church), arguing that exemption from taxation was “a covert subsidy for the spread of doctrinal proselytism.” Combining a broad theological liberalism with overt anti- Catholicism, Theodore Schroeder similarly protested in 1928: “All public money so expended is really used for sectarian propaganda.”13 At the same time, the idea that exemption was a subsidy continued to gain popularity among nativists. The Menace—a virulent and immensely popular anti- Catholic newspaper that flourished shortly before World War I—recited on its masthead the nativist ideals of “absolute separation of church and state,” “compulsory education,” and “the taxation of all church property.”14 In contrast, in pre–World War II legal literature, it was not yet conventional to view nonprofit exemptions as subsidies. Academic economists already classified them as “subsidy exemptions.” But among lawyers, more

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complex assumptions still prevailed. Although lawyers and legal academics often assumed that nonprofit exemption was a privilege, they did not yet typically denounce it as a subsidy.15 In theologically liberal tracts and magazines, however, whether antiCatholic or more broadly antiecclesiastical, there was a drumbeat of complaints that exemption was a subsidy, and this eventually had constitutional consequences. Such literature usually focused on state property taxes, as when the atheist Harry Hibschman asked in 1930: “Does the Church deserve to be subsidized? that is the real question.” Of course, the immediate goal of such writers was to challenge the exemptions, but their argument that exemptions were subsidies inevitably came with the implication that exemptions could be subject to conditions.16 This conclusion acquired a foothold in federal income tax doctrine in 1930 in Slee v. Commissioner. For more than a decade, the Bureau of Internal Revenue (following theologically liberal assumptions) had interpreted the statutory exemption for educational organizations to preclude exemption for political propaganda, and Judge Learned Hand (who had become a theological liberal in his youth) upheld this interpretation in Slee on the ground that “political agitation . . . must be conducted without public subvention.”17 b The theological antagonism against tax exemption acquired force after the Supreme Court in 1947 and 1948 (in Everson v. Board of Education and McCullom v. Board of Education) applied the Establishment Clause against the states and interpreted it in terms of the theologically liberal slogan of “separation of church and state.”18 In opposition to Catholics, nativists and other theological liberals had long elevated this phrase not merely as a federal right but as an “American” constitutional principle, and after generations were educated in these ideas that flattened out state and federal differences, it is no surprise that the Supreme Court embraced separation of church and state as a principle that applied equally to the federal government and the states. On this foundation, federal courts increasingly began to examine state law for subsidies to churches, lest such support violate the separation of church and state. Many liberals therefore took the opportunity to press home their claim that exemptions were subsidies.19 c b. Playing upon familiar liberal tropes, Hand quipped: “Skepticism is my only gospel, but I don’t want to make a dogma out of it.”* c. A long-simmering controversy in California did much to popularize the concerns that exemptions for churches and church schools were subsidies. California was the only state that did not exempt nonprofit schools from its property taxes. The Catholic Church fought to obtain exemption for nonprofit secondary schools in the state, and although it failed in 1926 and 1933,

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Remarkably, a growing number of theologically liberal Protestants were willing to renounce tax exemption for their own churches in order to defeat Catholics. From the Catholic point of view, the “supposed Christian” who took this approach was “willing to have his own faith belittled, if the faith of his enemy can be subjected to the same humiliation.” Many theological liberals, however, saw the taxation of all churches as the necessary price of defeating Catholicism. Elbert Hubbard—the arts-and-crafts philosopher who perceived spirituality in almost all of life—had pressed for this self-sacrifice already in his magazine the Philistine, and at midcentury the campaign went mainstream. In 1951, the Universalist Church of America voted to support this approach—at the same meeting in which it denounced the anticommunist Smith and McCarran Acts. The New Age praised the Universalists, adding that “the Protestant churches would be in a much stronger position if they fought to repeal tax exemption for all churches and made each church pay its own way.”20 Although the view that tax exemption was a subsidy had long been candidly a theologically belligerent position, it became entirely respectable when in the late 1960s Stanley Surrey and others popularized the economic analysis of tax breaks as “tax expenditures.” From this apparently neutral stance, any tax exemption could potentially be viewed as an expenditure. Theological liberals had been arguing since the nineteenth century that exemptions for churches were subsidies, and the tax expenditure theory seemed to give credibility to their views. The theory did not really support their position, but if one did not examine it too closely, its unprejudiced terms could seem to justify what earlier had reeked of theological prejudice.21 The triumph of this misuse of the tax expenditure theory came when the Supreme Court, in 1983 in Regan v. Taxation with Representation, held that section 501(c)(3)’s exemption was a “subsidy.” The Court was examining the constitutionality of the lobbying restriction, and it therefore should have focused on whether section 501(c)(3)’s exemption is a subsidy. The Court, however, rested its analysis on the subsidizing effect of section 170’s deduction for contributions to nonprofits—even though the deduction is very different from the exemption, and even though tax expenditure theory distinguishes the two. (The Court even relied on an earlier case, Cammarano v. United States, concerning the deductibility of expenses by businesses.) it finally succeeded in 1952. This extended struggle attracted attention across the nation and prompted numerous articles in liberal and especially masonic periodicals about the danger that tax exemptions for churches and related schools were “indirect subsidies.”*

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The Court thus leaned on deductions to bolster its conclusion that section 501(c)(3)’s exemption was a subsidy.22 Evidently, during the post–World War II era, a position that had long rested on theological animus acquired the legitimacy of economic theory. No matter that the economic theory was actually inapplicable and that it was being selectively misapplied to suppress speech; it now had the sanctity of Supreme Court precedent. Not Expenditures The underlying history of prejudice, combined with the twisting of the tax expenditure theory, reinforces the conclusion that section 501(c)(3)’s exemptions are not expenditures. Much that originally was prejudiced can nowadays be reasonable. But it is difficult to understand the conclusion that section 501(c)(3)’s exemptions are expenditures, except as a matter of prejudice. Inasmuch as Surrey himself and the Joint Committee on Taxation have not thought that section 501(c)(3)’s exemptions are expenditures, how can one explain the application of tax expenditure theory to section 501(c)(3)’s exemptions? Although the application of the theory to justify section 501(c) (3)’s restrictions has no foundation in the theory itself, it is in line with long-standing theological prejudice. And even if the prejudice has diminished, it has not abated so far as to allow the misapplication of the theory to be corrected. The larger point is that the standard constitutional justification for section 501(c)(3)—that this section merely places conditions on tax expenditures—must be viewed with skepticism. The section’s restrictions are often said to be without the force of law because they are merely conditions on tax expenditures. But if this theory proves too much, if the exemptions traditionally defined the income tax’s baseline, if the tax expenditure theory does not actually apply to the exemptions, and if they have come to seem a subsidy through theological prejudice, then one must pause. At the very outset, before one gets to the conventional constitutional questions, one must wonder whether section 501(c)(3)’s speech restrictions can really be justified as merely conditions on spending.

Unconstitutional Conditions on Spending? Nonetheless, what if the restrictions in section 501(c)(3) were conditions on spending? Would that deprive them of the force of law and thereby render

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them constitutional? To test this constitutional question, it now will be assumed that section 501(c)(3)’s exemptions are expenditures. Even so—even if section 501(c)(3)’s restrictions are thus conditions on spending—they still are unconstitutional. Neither Germane nor Proportionate Although Supreme Court doctrine on unconstitutional conditions is notoriously opaque, it is clear on the key point that conditions will be understood to have the force of law where they are not germane and proportionate. Thus, where the government places an otherwise unconstitutional condition on one of its grants and the condition is disproportionate or irrelevant to the grant, the condition reveals itself to be an unconstitutional constraint. This doctrine serves, in effect, as a measure of when violations of rights come with the force of law—the disproportionate and nongermane character of the condition being a sign of force in the inducement. As the Supreme Court made clear in FCC v. League of Women Voters, even the government’s spending of its money does not justify it in imposing unnecessarily broad prohibitions on speech, for this would be overreaching. For example, as also explained in League of Women Voters, the government’s spending of its money does not justify it in barring recipients from using their own money for their own speech. It is one thing for the government to ask recipients of funds to add “more” speech, but quite another to ask them broadly to “silence” themselves.23 Thus, even if the government were really giving money to churches, schools, and charities when it refrains from taxing them, it cannot stretch the conditions beyond the public money to impose a sweeping suppression of political speech, for this is disproportionate and, indeed, irrelevant to the government’s concerns about its spending. To be concrete, the government cannot leverage its alleged subsidy to limit campaigning and lobbying that organizations do with little or no government money. The sheer breadth of the conditions, which go miles beyond the government’s legitimate concern about its money, shows that they are not so much conditions on spending as attempts to control or regulate speech.24 In fact, much of the speech restricted by section 501(c)(3) involves no expenditure by the government or by the organization. When preachers campaign from their pulpits, when church members urge fellow citizens to vote in accord with religious dictates, or when they petition their representatives in Congress, they usually use no money whatsoever. Thus, even if the gov-

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ernment were subsidizing churches and other idealistic organizations, section 501(c)(3)’s restrictions on their petitioning and political speech would often be entirely irrelevant to the spending and wildly disproportionate. The constraints are especially irrelevant and disproportionate because the subsidizing effect varies among organizations, depending on their income. For example, where organizations have little income, the subsidizing effect of the tax exemption can only be tiny. As a result, for such organizations, the conditions imposed by section 501(c)(3) are particularly irrelevant and disproportionate. Tellingly, as Boris Bittker noted, “the organization’s exempt status is not lost or directly affected by the receipt of unrelated business income; the statutory remedy is limited to taxing that income.” In other words, even when idealistic organizations have income of a sort that does not seem to justify exemption, this does not deprive the organizations of their exemption. That severe approach is reserved for when they engage in political speech.25 Thus, even if the exemptions are subsidies, the conditions go far beyond what could possibly be proportionate or even germane. Conditions that sweepingly suppress speech and petitioning by religious and other idealistic organizations, regardless of the amount of subsidy, cannot be constitutional. On behalf of the conditions, one might observe that churches, schools, and charities receive at least an indirect benefit from the ability of donors, under section 170, to deduct their donations to these organizations. Unlike section 501(c)(3)’s exemption, these deductions really have a subsidizing effect, and the government may have reason to worry about how they are used. But as will be seen (primarily in chapter 13) the government can protect against abuses of these subsidies without silencing or stifling idealistic organizations. The conditions on such organizations thus remain irrelevant and disproportionate. The Supreme Court therefore was mistaken when, in Regan v. Taxation with Representation, it upheld section 501(c)(3)’s lobbying restriction as a condition on a government subsidy. Unquestionably, the government can place some limits on the use of money that it actually gives to private parties. But here the government uses its nontaxation to justify not merely limits on the alleged subsidy—the amounts it otherwise would assess as a tax—but sweeping limits on all campaign speech and much lobbying, regardless of the amount of the subsidy and regardless of whether the speech is subsidized. Such limits are neither proportionate nor germane, and this confirms what is already suggested by the history: that the restrictions are a mode of constraint or regulation.

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Consent Irrelevant Making matters worse, even if the restrictions in section 501(c)(3) were germane and proportionate, they could not be justified on grounds of consent. At one level this is just factually obvious. Even if consent could justify otherwise unconstitutional restrictions on First Amendment rights, what sort of consent is it when the government says, “Give up your political speech or we will take your money”? The problem with the consent justification, however, is also conceptual, for where restrictions are unconstitutional, consent is irrelevant. This initially may sound odd if one assumes that constitutional rights are merely personal. From this perspective, it commonplace to envision constitutional rights as tradable—as if they could be bought and sold in the same way as a car or a house. Constitutional rights, however, are different from private rights, for they are legal limits on public power—indeed, are legal limits imposed by the people. This is nowhere more explicit than in the First Amendment, which begins: “Congress shall make no law.” But it generally is true of all constitutional rights. Constitutional rights are legal barriers adopted by the people. Consequently, the consent of bodies smaller than the people—whether individuals, private organizations, or states—cannot remove these constitutional restrictions. Put in terms of power, the consent of an individual, organization, or state cannot give the government a power that the Constitution denies to it. The full details of this point, that consent is irrelevant for violations of constitutional rights, are laid out elsewhere.26 For purposes of section 501(c)(3), it is enough to observe that although a church or other private organization can refrain from exercising its rights of speech, petitioning, and so forth, its consent cannot give Congress a power over these things that the enumerated powers do not grant and that the First Amendment specifically forbids to Congress. Private consent cannot enlarge the constitutional boundaries of public power. Same Analysis as in Other Violations of Rights Conditions that violate constitutional rights can therefore be understood in the same way as other violations of rights—that is, without a distinct doctrine of unconstitutional conditions. If consent is irrelevant for purposes of understanding freedom of speech and other rights as limits on power, then there is no need for a distinct doctrine of unconstitutional conditions to understand rights. Instead, even where there is private consent, one need

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only analyze violations of rights as one normally would, by asking whether the restriction violates an enumerated right, including whether it comes with the force of law.27 Put another way, it commonly is assumed that where there is private consent, there cannot be government force. Yet the presence of consent does not settle the question of force. At first this may seem puzzling, but it is well known from other areas of law that consent does not preclude a showing of duress or force—whether in the inducement or the enforcement. Thus, for example, where the government induces consent to a condition by threatening the force of law, or where it can enforce a condition by bringing a subsequent legal action to recover money, the conditions would appear to come with the force of law.28 Here the government can go to court to recover taxes from organizations that fail to comply with the speech restrictions, and these conditions thus come with the force of law. That is, because the conditions leave the government recourse in the courts for breach, the conditions are backed by the force of law at the enforcement stage.29 Even more immediately, the force of law is evident in the inducement. Under section 501(c)(3), those who do not consent to the conditions must pay higher taxes. This is therefore not a consensual trade of constitutional rights for government money but rather (as will be seen below) an extortionate combination of two constraints: quiet down or pay. Thus, even if section 501(c)(3)’s restrictions are merely conditions on spending, they are unconstitutional conditions. The restrictions are neither germane nor proportionate, and in any case private consent cannot give the government a power over speech, petitioning, and religion that the First Amendment specifically denies to it. The section thus lives up to its history as a mode of suppression.

Both Subsidy and Direct Constraint There is another angle—an ambidextrous view of the divide between the force of law and consensual conditions. Even if section 501(c)(3)’s exemptions are subsidies, and even if its restrictions are consensual conditions, its imposition of a tax on noncomplying organizations is a direct constraint. And this constraint matters for constitutional purposes. Section 501(c)(3)’s restrictions can thus be considered both conditions and direct constraints. In order to test this point, it will be taken for granted here (as earlier) that section 501(c)(3)’s exemptions have a subsidizing effect for idealistic organizations. Even on this assumption, however, it turns out

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that section 501(c)(3) also imposes a direct constraint on their First Amendment rights, and the subsidy cannot excuse the unconstitutional constraint. Ambidextrous Effects One of the obstacles to understanding section 501(c)(3) is the assumption that it must be either a subsidy or a constraint. In fact, there is no need to take this either-or approach. On the contrary, even if it had a subsidizing effect, it would be very odd if it did not also have a constraining effect. The risks of an either-or approach are evident from the Supreme Court’s 1983 decision in Regan v. Taxation with Representation. When the Court in this case upheld section 501(c)(3)’s lobbying restriction, it reasoned that, because the underlying exemptions had a subsidizing effect, they did not violate the First Amendment. Although the Court was entirely correct in saying that the government has no duty to give subsidies, it was too quick in assuming that this put the constitutional question to rest. Even if the Court was right that the exemptions have a subsidizing effect, the Court should have paused to consider whether section 501(c)(3) also has a constraining effect.30 The Court’s one-sided examination of the effect was especially problematic because what matters for most constitutional rights is not any subsidizing effect but rather the constraining effect. Although one might reasonably ask about the role of an exemption in subsidizing religion in an establishment case, this is not the relevant inquiry in a speech, petitioning, or free exercise case. For these constitutional problems, the question is whether section 501(c)(3) constrains. All the subsidies in the world cannot eliminate the central question of constraint. And when one adopts the effects standard of Regan—albeit now to determine whether section 501(c)(3) constrains—the answer is painfully clear. Even if the Court was right in Regan that the section has the effect of a subsidy, it should have added that the section simultaneously has the effect of a constraint. From this point of view, the section is ambidextrous; although it offers a gift with one hand, it raises a cudgel in the other, and thus even if it operates as a lawful subsidy, it also functions as an unconstitutional constraint. Direct Constraint In fact, section 501(c)(3)’s restrictions on churches, schools, and charities directly constrain their petitioning and political speech. Nor should this be a

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surprise. If nontaxation can sometimes be a subsidy, then it is surely not too much to conclude that the “choice” between paying taxes and suppressing oneself is a constraint. What removes any element of consent is the shift from cash grant to tax exemption. This initially may seem puzzling, but it is of central importance. Had the speech restrictions come as conditions on cash grants from the government, they really would be consensual conditions on spending, for the conditions would be part of a deal that the idealistic organizations could refuse without cost. The question would therefore be whether they are unconstitutional conditions. The speech restrictions, however, come not with cash, but with an exemption from a tax, and the organizations are therefore not free to reject the proffered deal without paying revenue. Rather than consensual conditions, the restrictions are simply triggers of a legal duty to pay tax. That is, they are measures of a duty to the government—a duty that comes with the direct force of law. The move from cash grant to tax exemption thus displaces the element of consent with force. Imagine that the government actually offered cash to churches and other idealistic organizations on account of their public service but required in exchange that they silence themselves in campaigns and subdue themselves in influencing legislation. This would clearly be unconstitutional (because the conditions are neither germane nor proportionate and because consent cannot give government a power to abridge the freedom of speech), but this scheme would at least leave the organizations free to speak without a direct penalty. Section 501(c)(3), in contrast, is much worse, for it gives churches and other idealistic organizations the choice between silence or paying a tax to which they otherwise are not subject. It thus is a direct tax on petitioning and political speech by idealistic organizations. Consequently, although section 501(c)(3)’s speech restrictions are often said to be merely conditions, they are anything but consensual. The section sets two tax rates: a very low (zero) rate for those that silence themselves and a high rate for those that refuse to silence themselves. The section thus offers churches, schools, and charities a brutal Hobson’s choice: they must suppress themselves or pay a tax. Each of these alternatives is a constraint, and in giving the organizations this “choice,” section 501(c)(3) is clearly constraining them.31 Put another way, by forcing them to choose between paying a tax and suppressing themselves, it taxes them for their speech, and this is a direct facial constraint.d d. Note, moreover, that 26 USC §4955 imposes “on each political expenditure [in a campaign] by a section 501(c)(3) organization a tax equal to 10 percent of the amount thereof.”

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Consider the possibility of a tax exemption for newspapers as long as they do not take positions in elections and do not substantially attempt to influence legislation. Newspapers ordinarily are subject to the income tax, and their exemption from this tax would therefore have a subsidizing effect; it would be a tax expenditure. All the same, there would be no doubt about the direct constraint on their speech. Although the exemption would be a subsidy, the taxation of newspapers that supported candidates for election or advocated legislation would clearly be a direct constraint. Similarly, under section 501(c)(3), the taxation of those who campaign or seek to influence legislation is a direct constraint. The section directly imposes a tax and thus imposes the direct force of law on the political speech of idealistic organizations. One might protest that an idealistic organization is not really silenced because it can pay to speak. But this is hardly reassuring. Americans ordinarily petition and talk about politics without having to pay the government. Nonetheless, churches and other idealistic organizations must pay the government for the privilege of exercising these constitutional rights. To say that they can pay to speak is just another way of saying idealistic organizations are penalized for exercising their First Amendment rights. If this is the offer of a contract, it is an offer one cannot refuse. Mobsters make such offers, buying silence in exchange for not imposing a “tax,” but everyone knows they are making threats, requiring silence or the payment of a penalty. Under this sort of offer, churches, schools, and charities can speak only if they are willing to pay the price. It is unsurprising that criminals make such offers, but can the United States behave this way? The government is not merely “buying” the silence of churches and other idealistic organizations in a commercial sense; instead, it is buying their silence in the bullying sense employed by mobsters. Like them, it is demanding silence or money, thus imposing a direct constraint on speech. When a statute tells religious and other idealistic organizations, Shut up or pay a tax, it cannot be constitutional. Far from a lawful condition on a subsidy, this is overt suppression. Section 501(c)(3)’s restrictions on speech are therefore profoundly unconstitutional.

( When liberals sought restrictions on the speech of churches and other idealistic organizations, they imagined that they could avoid violating the First Thus, at least for the campaign restriction, there is a sliding scale of taxes—so that the more one speaks, the more one pays.

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Amendment. It is therefore no surprise that section 501(c)(3) imposes its restrictions not candidly as legal duties, but as triggers for the duty to pay a tax—indeed, as conditions of exemption. Even when evaluated as conditions on spending, section 501(c)(3)’s restrictions are unconstitutional. It should be recalled that McCarthyism came mostly with threats of lost jobs and lost funding rather than direct legal force. All the same, it was more than forceful enough. Although section 501(c)(3) is very different from McCarthyism, that other type of suppression is a valuable reminder that the loss of funding can be highly coercive. In this case, the speech restrictions are not proportionate and germane, and thus even if they are merely conditions on government largess, they are coercive. In fact, section 501(c)(3)’s restrictions come with the direct force of law. The section’s exemptions are neither actual expenditures nor even tax expenditures. And even if the exemptions have a subsidizing effect, this cannot cure section 501(c)(3)’s constraining effect. The section imposes severe alternatives on idealistic associations, leaving them to stifle themselves or pay a tax on their political speech. It is therefore much worse than a straightforward offer of cash for silence, for it leaves organizations no choice but to select one constraint or another. Regardless of any advantage conferred by the exemptions, the section still imposes direct constraints on speech—constraints that come with the force of law.

NINE

First Amendment Principles

Section 501(c)(3)’s restrictions conflict with four profoundly important First Amendment rights. They violate the freedom of speech, the freedom of petitioning, the free exercise of religion, and the establishment of religion. Looking ahead, readers should keep in mind that chapters 9 and 10 examine the constitutional difficulties as prima facie constitutional violations. Chapter 11 then will consider countervailing government interests and other justifications, and chapter 12 will explore alternative avenues for speech. Overall, it will become apparent that section 501(c)(3)’s restrictions are grossly unconstitutional. Although some of the First Amendment objections are familiar from the literature on section 501(c)(3), they have thus far failed to make much of a dent. The prevailing stream in the literature treats the constitutional problems as minimal or at least avoidable. From this perspective, section 501(c)(3) remains a technical tax question, and any constitutional concerns can be largely brushed aside. Even the scholarship that questions section 501(c)(3) does not systematically recognize the First Amendment violations or their depth. In contrast, this chapter aims to discuss at least the most central constitutional principles in a manner does justice to what is at stake.1

Speech The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Nonetheless, section 501(c)(3) repeatedly abridges both freedoms. Put simply, the section violates the freedom of speech—one of the most basic of constitutional rights.

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Political Speech The First Amendment protects a wide range of speech, not merely that relating to politics. Nonetheless, the most obvious implications of the amendment’s guarantee of speech lie in the political realm, for it is there that the freedom of speech most prominently protects other freedoms and limits government. From this point of view, freedom of political speech is the foundation of all freedoms. Congress therefore cannot make laws that single out political speech for constraint. As recognized in Citizens United v. Federal Election Commission, “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” Indeed, the amendment bars not only laws directly targeting political speech but also “[l]aws that burden political speech.” All such law are “subject to strict scrutiny,” which is as much as to say that they come with a strong presumption of being unconstitutional—a presumption that (as will be seen in chapter 11) can be defeated only by a compelling government interest.2 Far from merely burdening political speech, section 501(c)(3) candidly targets political speech for suppression. In fact, it directly and deliberately focuses on the most central spheres of political speech. It bars all campaign speech—the speech done to influence voting—and any substantial use of speech to influence legislation. It thus suppresses speech when used in influencing lawmakers or those who elect them. In defense of one of section 501(c)(3)’s restrictions, it might be said that it does not restrict all attempts to influence legislation, but only such attempts as come from an organization that devotes a substantial part of its activities to such efforts. The government, however, does not have to completely bar speech in order to abridge it, and section 501(c)(3)’s restrictions are therefore an abridgement of the freedom of speech. One could understand “substantial” activities to mean substantial resources, but even this does not cure the constitutional violation. In Buckley v. Valeo and again in Citizens United v. Federal Election Commission, the Supreme Court explained that a “restriction on the amount of money a person or group can spend on political communication during a campaign . . . necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” And if this is true of political speech in persuading voters, it surely is also true of such speech in persuading government.3 Of course, the importance of preventing the suppression of political speech does not mean that this sort of speech is uniquely protected. For

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example, it would be a mistake to conclude that the strength of protection for political speech implies diminished protection for academic, scientific, artistic, or commercial speech. Each of these types of speech has profound value. In addition, each is often as much a foundation for political inquiry as political opinion. For example, scientific inquiry allows politics to rest on verifiable knowledge rather than mere opinion.4 The suppression of political speech, however, remains centrally unconstitutional, and section 501(c)(3)’s restrictions therefore appear to be unlawful—unless they can be justified by a compelling government interest. Political Speech in the Political Process Notwithstanding the Constitution’s protection of political speech, it must be noted that, for about two decades, the Supreme Court explored the possibility that speech in the political process is not as strongly protected as other political speech. The Court apparently hoped to leave room for regulation of the political process, but it thereby carved a large hole in the very center of the protection for political speech, and it therefore has returned to the full protection of political speech in the political process. The range of doctrine demarcated by the Court’s decisions can be observed in two salient cases. The 2003 decision in McConnell v. Federal Election Commission upheld a statutory restriction on “electioneering communications.” A federal statute barred business corporations and unions from using general treasury funds for any “electioneering communication”—meaning a broadcast communication that referred to a candidate within thirty days before a primary or sixty days before a general election. The Supreme Court upheld this restriction on the theory that it focused more on contributions than speech and had only a marginal effect on speech. On such foundations, according to the Court, the restriction did not directly concern political speech and therefore did not have to satisfy the compellinggovernment-interest test; instead, it only had to satisfy “the lesser demand of being closely drawn to match a sufficiently important interest.” This was a sort of “intermediate scrutiny,” and the Court thereby left room for some burdens on speech in the political process—at least where the regulation was not clearly aimed at suppression but could be understood as an attempt to protect against the role of money in politics. The Court, however, soon worried that this diminished test evacuated the protection for political speech in politics. In 2010, in Citizens United, the Court therefore rejected the restriction on electioneering communications and clarified that political speech is protected by strict scrutiny, including the

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compelling-government-interest test. And along the lines already suggested, it emphasized that, regardless of whether a law deliberately targets or only inadvertently burdens political speech, such speech “must prevail against laws that would suppress it.” No longer was there to be a lowered standard for laws that only incidentally burdened political speech in politics.5 The public response to these cases notoriously has focused on other questions—on contributions in the one case and on corporate rights in the other. The constitutional standard for political speech, however, is what matters here, and in this regard, section 501(c)(3) illustrates the danger of a measure that leaves room for Congress to control political speech in politics—indeed, to stifle political speech where it might influence elections and legislation. Fortunately, even under the McConnell standard, section 501(c)(3) is unconstitutional. Its restrictions are not so much protections for the political process as exclusions from it. Rather than directly address corruption or other specific dangers to the political system, section 501(c)(3) broadly excludes idealistic associations and their political speech. It completely excludes them from speaking in elections and thus from the central mode of choosing and limiting government, and it substantially excludes them from influencing legislation and thus from the process of registering discontent with government and demanding its improvement. These crude exclusions from the political process cannot be considered the means of preserving that process. The danger of excluding Americans from the judicial process has already been recognized by the Supreme Court. In Legal Services Corp. v. Velazquez, Congress funded legal services for the poor on the condition that legal services lawyers could not participate “in litigation, lobbying, or rulemaking, involving an effort to reform a federal or state welfare system.” The Court recognized that this assault on legal and political speech threatened the judicial system: “The attempted restriction is designed to insulate the government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the government to confine litigants and their attorneys in this manner.” Making clear that the Court was speaking of their freedom of speech, the judges added: “Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the government’s own interest.”6 Similarly, where section 501(c)(3) “subsidizes” churches, schools, and charities on the condition that they refrain from campaigning and lobbying, it is obvious that this threatens the political system. The Supreme Court therefore should echo its opinion in Velazquez by declaring that the restric-

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tions are designed to insulate Congress from electoral and lobbying challenges. As in the judicial process, so in the political process, congressional funding cannot be aimed at the suppression of speech that Congress considers inimical to the government’s interest. Looking back at the history of section 501(c)(3), one must wonder whether the anxieties about democracy that underlay the section’s suppression of political speech have persisted in the arguments that the suppression is necessary to protect the democratic political process. It would appear that anxieties for democracy have both stimulated and justified the suppression. It is very dangerous, however, to protect the political process by suppressing political speech, and the First Amendment necessarily protects political speech within as well as outside politics. Accordingly, whatever the First Amendment’s tolerance for regulation of the political process, this cannot be understood to permit the suppression of political speech in that process. Section 501(c)(3)’s restrictions should therefore be considered presumptively unconstitutional. Congressional Restrictions of Speech to Choose and Influence Congress Although the problem has thus far been examined here as the danger of allowing the suppression of political speech in the political process, the danger is even more concrete as to congressional power. Congress has no business regulating speech in the process that chooses and influences it. This, however, is exactly what Congress did in 1934, 1954, and 1987. Congressmen may have thought it perfectly normal to protect themselves and their slanted vision of democracy. But they did so by restricting the speech of idealistic organizations, and they thereby tamped down speech of a sort that is often critical of Congress and congressmen. Of course, notwithstanding section 501(c)(3), many churches and other idealistic organizations do their best to participate in politics. In a 2004 IRS study of 110 section 501(c)(3) organizations, it became apparent that 68 percent had engaged in prohibited campaign activities. Most violations, however, were innocent or at least not insistent. For example, many were based on misunderstandings of IRS interpretations or were anomalous or were promptly corrected after they were pointed out. In other words, where the IRS interpretations were made clear to the organizations, they usually complied. The study thus confirms the degree to which churches and other idealistic organizations are actually constrained by section 501(c)(3). To the extent the law is made clear to them, it largely keeps the organizations from campaigning or substantially speaking to influence legislation. Although Congress has

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not entirely barred the flow of ideas from idealistic associations to Congress, it has largely suppressed the most direct routes for this flow of ideas.7 It would be beyond strange if the Constitution allowed Congress to control speech in the processes for choosing and influencing Congress. Such an absurdity would rival Alice in Wonderland in turning the world upside down, for it would enable Congress to control the speech by which the people allegedly control Congress. Speaker Discrimination Another problem with section 501(c)(3) is speaker discrimination. The section’s restrictions were designed not to suppress political speech in general but to suppress the political speech of idealistic organizations—the sort of organizations that are apt to challenge conventional political assumptions in an uncompromising way. One danger is that the speaker discrimination is a means of content discrimination—a mechanism for singling out a disfavored topic. Some scholarship defends section 501(c)(3) on the ground that it does not engage in content discrimination.8 And certainly the section does not specify that churches cannot speak about religion, that educational associations cannot speak about education, or that charitable associations cannot speak about charity. Nor does the section specify that any of the affected associations cannot speak about politics. Nonetheless, in focusing on religious, educational, and charitable associations, the section tends to suppress discussion of religion, education, and charity. And in restricting such associations in key arenas for political speech—elections and lobbying—it clearly suppresses much religiously inflected political content, much educationally informed political content, and much charitable political content. The speaker discrimination thus is an avenue for much content discrimination. Another danger is that the section’s speaker discrimination is a mechanism for viewpoint discrimination—for singling out a disfavored perspective. This initially may seem improbable, for the nonprofits confined by section 501(c)(3) are both Democratic and Republican, both liberal and conservative, and they thus take a range of different political perspectives. The discrimination is nonetheless serious, for section 501(c)(3) restricts the speech of nonprofit organizations, which are precisely the sort of organizations that are apt to take an idealistic rather than a market-oriented view of politics. To be sure, some nonprofits support a free market, and some businesses oppose a free market, but overall, nonprofits take a very different approach to the world, including politics, than their profit- maximizing

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cousins. And this is particularly clear for the sort of nonprofits centrally suppressed by section 501(c)(3)—namely, churches, schools, and charities— which are apt to take religious, charitable, and educational perspectives. The speaker discrimination in section 501(c)(3) is thus both content and viewpoint discrimination by other means. In addition to being a problem where it serves as a proxy for content and viewpoint discrimination, speaker discrimination can also be unconstitutional on its own. Speaker discrimination occurs where the government restricts the speech of a group. Even if the group does not have a distinctive subject or viewpoint, and thus even if the government is not discriminating on the basis of content or viewpoint, the government’s suppression of speech by a group can, by itself, be an abridgement of the freedom of speech. For example, Grosjean v. American Press Co. considered a 2 percent tax imposed by Louisiana on periodicals, and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue addressed a Minnesota tax on the cost of paper and ink products employed in producing periodicals. In each instance, the Supreme Court held the tax unconstitutional, not because periodical publications generally have a distinctive content or viewpoint, but because a tax that singles out periodicals abridges the freedom of speech and the press.9 Similarly, when section 501(c)(3) taxes the speech of churches, schools, and charities, it is abridging their freedom of speech and the press. When a tax focuses on newspapers and magazines, it is easy enough to conclude—as the Supreme Court did in Minneapolis Star & Tribune Co.—that the tax is “not unrelated to suppression of expression.” In that case, however, this conclusion had to be discerned from the law’s focus on periodicals, for there was no direct legislative indication of a desire to suppress. In contrast, when section 501(c)(3) targets churches, schools, and charities, it does not merely hint at suppression. On the contrary, it candidly bars the speech—indeed, the political speech—of the disfavored groups.10 A law suppressing electioneering and substantial lobbying by all organizations would clearly abridge the freedom of speech; so why is a law suppressing a subset of organizations better? If the stifling of all is unconstitutional, then the stifling of those that pray, teach, and do charity is perhaps worse on account of the discrimination. The suppression of such groups is particularly troubling because they lack the financial power of business organizations, thus making section 501(c)(3) look like an assault on the freedom of relatively vulnerable private institutions. And it is even more worrisome because these idealistic organizations are precisely those that are apt to be uncompromising in pursuit of their ideals. They often cannot ac-

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commodate themselves to the quid pro quo of political bartering, and they are therefore the sort of organizations that tend to be a thorn in the side of prosaic politicians. The Supreme Court recognized the danger of speaker discrimination in Citizens United. Earlier, in Austin v. Michigan Chamber of Commerce, the Court upheld a Michigan statute that prohibited corporations from using general treasury funds for independent expenditures in connection with state elections. The Court justified this on the ground that, although the statute required corporations to use segregated funds when campaigning, it at least allowed corporations to speak in their own voice. In Citizens United, however, the Court overturned Austin on the ground that even an incomplete restraint on political speech cannot be “based on the speaker’s corporate identity.”11 Generalizing, the Court observed that “[q]uite apart from the purpose or effect of regulating content,” the government “may commit a constitutional wrong when by law it identifies certain preferred speakers,” for the government “may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” The First Amendment thus “protects speech and speaker, and the ideas that flow from each.” The Court made this point unconditionally about political speech, for “voters must be free to obtain information from diverse sources in order to determine how to cast their votes.” Thus, “We find no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.” Echoing this, one might observe that, although it is bad enough for government to suppress central types of political speech (such as campaigning and influencing legislation), it is even worse for the government to impose this suppression on particular speakers, not least idealistic speakers, such as churches, schools, and charities.12 The underlying principle is that of First National Bank of Boston v. Bellotti. In that case, a Massachusetts criminal statute had barred business corporations from making contributions or expenditures “for the purpose of . . . influencing or affecting the vote on any question submitted to the voters.” This limitation on business organizations was, in some respects, similar to one of section 501(c)(3)’s restrictions on idealistic organizations. Holding the limitation unconstitutional, the Supreme Court declared: “The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”13 Imagine that associations organized for racial or ethnic purposes were subject to a higher tax for presuming to speak in politics. This would be un-

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constitutional for multiple reasons, but no one would doubt that it would at least be speaker discrimination in violation of the freedom of speech. Similarly, it is unconstitutional speaker discrimination where associations organized for religious, educational, or charitable purposes are taxed for speaking in politics. Although many Americans may have little sympathy for the speakers suppressed by section 501(c)(3), this is all the more reason to worry that they are being singled out because they cut against the expectations of a majority. When Congress adopted section 501(c)(3)’s restrictions, it was widely feared that the political speech of churches and other idealistic organizations was antidemocratic and that it therefore needed to be confined. Such attitudes persist, but far from justifying section 501(c)(3), they confirm its threat to disfavored speakers and their speech. Ultimately, one must worry about the government’s legitimacy. What legitimacy can there be for government when (either by condition or direct constraint) it stifles political speech in politics? What legitimacy can it enjoy when it tamps down many of the organizations that otherwise would speak out about elections and legislation? And what legitimacy can the government have when it suppresses nonprofits—the organizations that are idealistic rather than market driven, and that therefore speak with distinctive moral authority? These are the organizations with which the government cannot work out predictable deals and it therefore uses the law to quiet them down. But there is no legitimacy in a government that targets the political speech in politics that comes from the half of private organizations that are apt to be uncompromising in their criticisms.

Petitioning The First Amendment guarantees not only speech but also the right to petition. It bars Congress from making any law abridging “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Nonetheless, section 501(c)(3) brazenly limits petitioning. Tellingly, what is commonly known as the section’s “lobbying” restriction does not use this word. Instead, it states that “no substantial part of the activities” of an exempt organization can be “carrying on propaganda, or otherwise attempting, to influence legislation.” It thereby echoes the very words that were used to condemn the political speech of the Catholic Church and eventually other idealistic organizations, and it thus expressly echoes some of the majoritarian liberal anxieties that underlay section 501(c)(3). All Americans have a right to petition government, and government has

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no right to suppress petitioning. One can call it “lobbying,” “propagandizing,” or “influencing,” but the right to petition government is a basic constitutional right, and section 501(c)(3) therefore cannot lawfully constrain churches, schools, and charities from devoting a substantial part of their activities to petitioning government. Group Petitions To understand how centrally section 501(c)(3) violates the right to petition, one must look back to the history of this right. Section 501(c)(3) restricts organizations rather than mere individuals, and it may therefore be assumed that it does not really threaten the right to petition. The right to petition, however, is guaranteed alongside the right to assemble, and it thus includes, at the very least, the right to join with others to petition, including the freedom to bring popular pressure on the government—all of which has significance for section 501(c)(3). Already in the Middle Ages, petitioning was the right both of individuals and of groups, whether they were formally or informally constituted. The 1305 Parliament is especially well documented, and an examination of the petitions in that year by Charles Petit Dutaillis reveals that “a third came from collective bodies”—most frequently “religious houses,” but also “the Universities of Oxford and Cambridge, towns, communities of counties, communities of merchants, groups of foreigners, of soldiers, of royal officials, of prisoners, etc.” Whatever their identity, and regardless of whether they were corporations or ad hoc associations, they all could petition the king in Parliament.14 Although seventeenth-century kings attempted to discourage group petitioning, they thereby clarified the importance of this sort of petitioning. For example, when the Puritans in 1604 petitioned James I not merely individually but en masse by collecting signatures, he responded by having the Lord Chancellor secure an advisory opinion against the practice. The chancellor assembled the judges in the Star Chamber and obtained their opinion that it would be unlawful for anyone to have “framed petitions and collected multitudes of hands thereto, to prefer to the king in a public cause . . . with intimation to the king, that if he denies their suit, that many thousands of his subjects would be discontented.” Similarly, in 1661, Charles II secured an act of Parliament punishing persons who solicited more than twenty signatures to a petition for “for altera[ti]on of matters established by law”— the excuse being that this would be a “tumultuous” or “disorderly” mode of petitioning. Indeed, when Whigs and religious dissenters used petitions

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in 1679 to stir up popular pressure, Charles echoed the statute by issuing a proclamation against persons who were collecting the “subscriptions of multitudes” to petitions “relating to the public.”15 a By the eighteenth century, the House of Commons rather than the king dominated the government, and it was therefore the House that feared group petitioning. The most notorious instance occurred in 1704, when grand jurors from the county of Kent joined together to sign a petition to the Commons challenging its approach to foreign policy. The House responded by simply imprisoning the petitioners. This provoked Daniel Defoe to publish a petition demanding their release and denouncing the Commons for its tyranny. Purporting to speak for the people in defense of their rights, Defoe signed the petition anonymously, “Our Name is Legion, and we are Many”—the line recently taken up by the Occupy Movement.16 Not only in politics, but in all matters of public life—whether commer-

a. Not only Englishmen but also Englishwomen engaged in group petitioning. In a notable instance, in 1649, women assembled to petition the House of Commons on behalf of John Lilburne and other prisoners. A contemporary paper reported: This day many hundreds of women waited upon the House with a Petition of about 10,000 hands to it in the behalf of the common right of the people, and particularly for the enlargement of Lieutenant Colonel Lilburne, Master William Walwyn, Master Thomas Prince, and Master Richard Overton, and the soldiers were most uncivil and inhumane towards them, presented the pistols ready cocked at some of their breasts, and forced them down stairs with files of musketeers, and threw squibs amongst them, only 20 were admitted into the lobby, and a member of the House coming out and demanding what the matter was with the women, the gentlewoman that was to present their petition, answered, they were come with a petition; he told her, that it was not for women to petition, that they might stay at home to wash their dishes; she answered, Sir, we have scarce any dishes left us to wash, and those we have we are not sure to keep them. Another member told her it was strange that women should petition; she answered, Sir, that which is strange is not therefore unlawful, it was strange that you cut of the king’s head, yet I suppose you will justify it. And Cromwell coming out, she took hold of his cloak and told him there was many hundreds of them had a petition to deliver, and had waited upon them from morning to that present, but they would not hear it, but time hath been when you would readily have given us the reading of petitions, but that was when we had money, plate, rings and bodkins to give you, you think we have none now, but we have a little left, but not for you, and blood too, which we shall spend against you. He answered, what would you have: She replied, those rights and freedoms of the nation, that you promised us and in particular the deliverance of our friends which you have imprisoned contrary to the form and method of law, and, Sir, their liberty we will have, or we will lose our lives. Crom. Well, well, there is law for them. Gentlew. Law, Sir. They were contrary to law imprisoned, and we desire their liberty first, and then if there be aught against them, let them be tried by the due course and form of law. Crom. There is an ordinance of Parliament to try them by law. Gent. Sir, If you take away their lives, or the lives of any contrary to law, nothing shall satisfy us but the lives of them that do it, and Sir we will have your life too if you take away theirs.*

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cial, religious, educational, or otherwise charitable—English groups and organizations enjoyed a right to petition. In the seventeenth and eighteenth centuries, incorporated trade associations such as the Company of Hostmen, trading corporations such as the Hudson Bay Company, joint stock companies such as the South Sea Company, and a host of ad hoc unincorporated associations petitioned the House of Commons. Petitioners also included the universities, hospitals, charities, and a wide variety of religious associations, whether parishes or chapter houses.17 Americans also petitioned government through associations, both permanent and ad hoc. Most notably, Americans used petitions to demand religious liberty from their states. Many petitioned as members of their religious meetings, churches, vestries, and other religious groups. In addition, where religious authority rested in church bodies, these organizations petitioned— as when Anglican vestries and the Hanover Presbytery petitioned the Virginia legislature. All were understood to have a right to petition, without any distinction between organization and individual.18 It is therefore not surprising that the First Amendment protected petitioning very broadly. Although the English right to petition was traditionally confined to petitioning the king in Parliament, the First Amendment more generally protected a right “to petition the Government,” thus guaranteeing a right to petition all parts of government. Whereas English kings tried to narrow the right to petition by objecting to tumultuous petitioning and to the solicitation of many signatures, the First Amendment boldly associated the right to petition with the right to assemble.19 Thus, even if (contrary to the First Amendment’s text) the right to assemble is confined to the goal of petitioning government, the right to petition clearly belongs at least to those who assemble in groups.20 The conflict between section 501(c)(3) and the First Amendment’s right of petitioning is therefore particularly salient when a church, school, or charity devotes itself “substantially” to petitioning government. In such a case, the IRS would conclude that the organization has forfeited its exemption and can be taxed on account of its “propaganda” or other attempt to “influence” legislation. Yet when Americans meet in an organization and devote substantial efforts to influence Congress, it is all the more clear that they are assembling to petition government. They are doing what the First Amendment at a minimum protects when it guarantees “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Imagine a church devoted to petitioning both God and government for social justice. Or imagine a school devoted to giving students experience in working together to improve their community, not least by securing legis-

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lative reforms. All of this is a combination of the right to assemble peaceably with the right to petition government. Taken as whole, the English and early American history is a reminder that petitioning is not merely an individual means of addressing government. It also more broadly has been the right of all persons who associate, ranging from corporations to loose ad hoc associations. This is important because petitioning is a means by which Americans ally themselves with one another, thereby solidifying and popularizing their messages and concentrating public pressure on government. Accordingly, when section 501(c)(3) limits petitioning by churches, schools, and charities, it truncates an essential constitutional right. By stating that “no substantial part of the activities” of exempt organizations can be “carrying on propaganda, or otherwise attempting, to influence legislation,” section 501(c)(3) takes aim not only at political speech but also at petitioning. The right of associations to petition is essential. Americans need their idealistic associations if they are to petition government in a way that pressures government in the direction of their ideals. More generally, they need to be able to petition through their idealistic associations if they are to be successful in organizing and developing public opinion along idealistic lines independent of government.21 Comparison to the 1836 Gag Rule Congress first dramatically assaulted petitioning when, in 1836, the House of Representatives adopted its “gag rule” against petitions on slavery. This rule has long been considered very severe, but the restrictions in section 501(c)(3) are, in a sense, harsher and broader. The gag rule was a response to antislavery petitions. Abolitionists had insistently petitioned the House of Representatives to abolish slavery where it could, and the House eventually responded by resolving to table all petitions on slavery and abolition. In other words, although the House was reacting to petitions that expressed only one point of view, its gag rule barred all petitions touching slavery, regardless of their point of view. Eventually, after much protest against this suppression of the right to petition, the House in 1844 abandoned its rule.22 This controversy has largely framed later discussion of the right to petition, and it therefore is striking that the House of Representatives did not really bar anything but rather merely tabled the offending petitions. In contrast, Congress in section 501(c)(3) actually limits what churches, schools,

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and charities can say to government and its members. In Congress’s derisive words, it limits the “carrying on propaganda, or otherwise attempting, to influence legislation.” The intrusiveness of section 501(c)(3)’s assault on petitioning is matched by the breadth of its restrictions, and the combination has political consequences. Many antislavery petitions came from churches or their congregations or at least were organized by churches. And if the House of Representatives in 1836 had been able to limit not only their right to petition but also their right to preach about elections, the House might not have felt the pressure that eventually led it to back down. Fortunately, the House could not interfere with both petitioning and campaign speech. Charles Francis Adams therefore could confidently write: “The persons who engage to reject petitions without reading . . . cannot bind those whom the public voice may point out to take their places for the purpose of receiving such petitions.”23 Nowadays, however, in section 501(c)(3), Congress first limits petitioning about legislation and then completely limits speech in elections. It thereby prevents idealistic associations from redressing their loss of the one right by exercising the other. Fractions of Rights A central theme of those who protested the 1836 gag rule was that all Americans had an equal right to petition. The House of Representatives was apt to take particular offense at antislavery petitions from blacks, and there also was disdain for petitions from women, who increasingly formed the backbone of the antislavery movement. In response, advocates of the petitioning emphasized the right of even slaves and women to petition.24 This remains central. Nowadays, it often is suggested that churches, schools, and charities are not really persons and thus do not have complete First Amendment rights. But the history shows the moral and political importance of recognizing that the right to petition belongs to all. Even those who are not widely respected as full persons have a full and equal right to petition. It therefore is sobering that, in barring churches, schools, and charities from spending a “substantial part” of their activities on lobbying, section 501(c)(3) treats these bodies as less than full persons. When these associations were regarded as whole persons at law, with full constitutional rights, many of them devoted a very substantial part of their energies to petitioning Congress—most notably, against slavery. Now, however, section 501(c) (3) prevents them from devoting any substantial part of their activities to petitioning. Put another way, whereas the Constitution once counted slaves

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as three-fifths of a person for purposes of apportionment, section 501(c) (3) counts churches, schools, and charities as nonpersons for electioneering speech and as only some fraction of persons for petitioning.25 The point is not that churches, schools, and charities are being treated like slaves but rather that the Constitution does not allocate rights or recognize person in fractions. All sorts of unfree societies have identified fractions of persons in order to give them only fractions of rights—as when Latin American countries once distinguished quadroons, octoroons, and so forth. Liberal societies, however, as Robert Cottrol observes, distinguish simply between the free and the unfree. From this perspective, although the U.S. Constitution distinguishes persons and citizens, it does not deal in portions of them.26 Congress therefore cannot limit anyone’s exercise of a constitutional right to a mere portion of their activity—least of all on a theory that they are not full persons! When section 501(c)(3) confines petitioning and speech for or against legislation to less than a “substantial part” of an organization’s activity, it not merely violates these rights but does so in a way that undermines one of the Constitution’s most fundamental liberal principles.

Free Exercise of Religion The First Amendment guarantees that Congress shall make no law respecting an establishment of religion or “prohibiting the free exercise thereof.” It has been seen that section 501(c)(3)’s restrictions arose in response to theopolitical anxieties about the Catholic Church and more generally about ecclesiastical and other idealistic organizations. Indeed, the section candidly singles out religious organizations. This targeting of churches is a significant violation of their free exercise of religion.b Constraint on Account of Religion Section 501(c)(3) directly constraints organizations on account of religion. It exacts the silence of religious organizations under threat of taxation and thus directly penalizes religion in violation of the Free Exercise Clause. In one view, the Free Exercise Clause provides a right of exemption from general laws—from laws that, although they do not constrain on the basis b. Although section 501(c)(3) also threatens the free exercise right of religious schools and charities, the focus here is on the threat to religious organizations, as this is a particularly clear violation of the free exercise clause.

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of religion, are nonetheless burdensome on religious belief. But so broad an interpretation of the clause need not be considered here, for the problem with section 501(c)(3) is more basic. Even if it were true that, in some instances, the Free Exercise Clause guarantees a right of religious exemption, it more fundamentally secures a freedom from penalties or discriminatory constraints on religion, and this is the free exercise difficulty with section 501(c)(3). Section 501(c)(3) expressly restricts organizations because they are religious. Indeed, by imposing its speech restrictions on churches, section 501(c)(3) discriminates among religions. Although the section may seem entirely neutral among churches, it was adopted against the background of theologically liberal fears of Catholicism and other “orthodox” religion that elevates ecclesiastical authority. As therefore might be expected, the section focuses not on religious individuals but on religious organizations—thus taking aim at the institutions through which the relatively orthodox seemed to exercise political influence and control. Making this even worse, the section’s restrictions require churches to adhere to the government’s theologically liberal vision of limited ecclesiastical speech in politics. Section 501(c)(3)’s speech restrictions are thus discriminatory not only against religion but also among religions. A relatively individuated majority feared churches as the instrument of relatively orthodox minority opinion, and it therefore used the tax code generally to pressure churches and allied organizations to confine themselves to a theologically liberal vision of their speech in politics. Conditional Liberty Religious liberty, at least as protected by the First Amendment, is unconditional. In the philosophic language favored by many early commentators, religious liberty is inalienable. The standard English approach to religious liberty, most notably expressed by John Locke and by the Toleration Act, was to protect religious liberty but leave it conditional. Fearful of Protestant and especially Catholic subversion of civil government, the English government in the late seventeenth century offered religious minorities only a conditional freedom. It left in place its penalties on apparently dangerous religious views, and it then offered relief from the penalties for persons who complied with statutory restrictions on their religion and politics—in particular, conditions on their religious and political views and on how they met and worshipped. This

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conditional freedom was what Locke espoused in his 1689 Letter Concerning Toleration and what Parliament enacted the same year in the Toleration Act.27 Although Americans would soon expect a more complete religious liberty, many colonies and early states still offered only versions of toleration. This sort of freedom was very open-minded for the late seventeenth and early eighteenth centuries, and relatively traditional American states mimicked it by providing religious liberty subject to conditions. Some such guarantees stipulated that religious beliefs not be dangerous; others barred religious liberty from becoming an excuse for breaches of the peace—that is, violations of law. One way or another, these guarantees protected religious liberty not as an inalienable liberty but only conditionally as a sort of toleration.28 Religious minorities, however, increasingly were impatient with a merely conditional religious liberty. If religious liberty came from God, it was surely an inalienable freedom rather than a mere toleration. It thus could not be conditional on the stipulations of any human government. Accordingly, some state guarantees—most notably Virginia’s—rejected toleration and instead guaranteed an unconditional religious liberty. The initial draft of Virginia’s Declaration of Rights guaranteed merely that “all men should enjoy the fullest toleration in the exercise of religion, . . . unpunished by the magistrate, unless, under color of religion, any man disturb the peace, the happiness, or safety of society.” This was only a conditional liberty. Religious minorities, however, especially Baptists, were all too familiar with this meager sort of freedom, and the Virginia Convention ultimately adopted an unconditional guarantee that “all men are equally entitled to the free exercise of religion.” Following Virginia, the U.S. Constitution’s First Amendment stated simply, without conditions, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This was an unconditional guarantee.29 It is therefore profoundly disturbing that section 501(c)(3) makes religious liberty conditional again. To be precise, the section taxes churches on account of their religion, unless they forgo campaign speech and much lobbying speech. This is all too familiar. The Toleration Act’s conditions on religious liberty protected against religious opinions that seemed subversive of England’s Protestant monarchy, and early American conditions on religious liberty protected against religious opinions that seemed subversive of the new land’s Protestant republics. Nowadays, section 501(c)(3) similarly protects against religious opinions that seem subversive of America’s liberal democracy. The political visions protected by the conditions have changed, but what is all too familiar is the use of conditions—of toleration in place

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of an inalienable religious freedom—as a means of securing the political system from religious opinion. This conditional religious liberty is exactly what was rejected by Jefferson’s Act Establishing Religious Freedom and by the First Amendment. Jefferson’s Virginia statute declared: [T]hat our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; . . . that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own.

Nonetheless, section 501(c)(3) responds to fears about the propagation of religious principles by taxing religious organizations, unless they keep their speech out of key political arenas. Silence in politics thus becomes a condition of religious liberty, and section 501(c)(3) thereby reduces the First Amendment’s unconditional religious liberty to mere toleration.30 This revenue subsection thus unravels one of the First Amendment’s great achievements. Whereas the amendment rejects mere toleration by securing an unconditional liberty, section 501(c)(3) returns American religious liberty back to a mere toleration. Masking It may be assumed that section 501(c)(3)’s discriminatory constraints on churches can be cured by its equally discriminatory constraints on educational and charitable organizations—on groups that are not defined religiously. But this assumption fails for two reasons. At the factual level, charities and private schools traditionally have tended to be religious, and section 501(c)(3)’s suppression of these institutions is therefore not really distinct from its suppression of churches. The anxieties about Catholic propaganda, influence, segregation, and subversion were often (as seen in part II) connected to fears of parochial schools. Even the more broadly liberal concerns about foundations began (as noted by Frederick Keppel) with worries about their religious “propaganda.” Still today, most private schools and many charities are religious. It is therefore

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somewhat unrealistic to suggest that “educational” and “charitable” organizations are so nonreligious that section 501(c)(3)’s discrimination against these organizations somehow neutralizes the section’s discrimination against religious organizations. More conceptually, one sort of discrimination cannot cancel out another sort. In particular, discrimination against one type of disfavored organization cannot be justified simply by adding equal discrimination against two other disfavored groups. The result is not equality but simply more discrimination. Leaving aside (for now) whether the pairing of schools and charities with churches can cure any subsidy under the Establishment Clause, it cannot mask the penalty on religion under the Free Exercise Clause. The imposition of a constraint on account of religion remains an unconstitutional penalty on religion, and it cannot be washed away by imposing the constraint on a few other things. Discrimination against one ethnic group cannot be cured by adding discrimination against a few other hapless ethnic groups. Similarly, discrimination against religious groups cannot be fixed by simply adding discrimination against a few other groups. Section 501(c)(3) directly singles out religious organizations for constraint—it taxes them for their speech—and this discriminatory penalty on religion violates the Free Exercise Clause. Although not the most severe or discriminatory constraint on religion in American history, it is among the most sweeping.

Establishment Even if section 501(c)(3) does not constrain but merely offers a subsidy to churches that meet its conditions, its conditions are unconstitutional—most broadly because (as seen in chapter 8) they are disproportionate and nongermane, but also more directly because they establish religion. Although almost all constitutional rights centrally bar government constraints, the Establishment Clause most centrally bars government privileges (including but not limited to subsidies) that establish religion. Accordingly, even if the defenders of section 501(c)(3) are right that it does not constrain but merely subsidizes, it remains profoundly unconstitutional. The section is one of the broadest establishments of religion in the history of the Republic.

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Establishment of Liberal Theology One might protest that section 501(c)(3) has not promoted any particular type of religion but merely religion in general, thus making it at least neutral, equal, and nondiscriminatory. The section, however, clearly promotes one side in the most significant theological debate in America during the past two centuries. Notwithstanding the remaining significance of particular religious denominations, the central division in American theology has been between those who are relatively liberal and those who are relatively orthodox. Liberal theology developed in opposition to the ecclesiastical authority of traditional churches, and (as seen in chapter 3) it condemned their “orthodox” opinions and influence as oppressive. Section 501(c)(3) gives effect to this theologically liberal fear of ecclesiastical opinion and speech—a fear of the organized speech that liberals feared was being used by their theological opponents. Thus, even if section 501(c)(3)’s exemption merely subsidizes churches, its conditions unconstitutionally direct this subsidy to the churches that conform to the liberal vision of limited ecclesiastical participation in democratic debate. The theologically liberal animus against ecclesiastical engagement in politics, and the corresponding attempt to establish the polity on largely nonecclesiastical reasoning, is not merely a matter of the past. On the contrary, it remains pervasive—most broadly in the views of those who, from a theologically liberal perspective, resent the speech of relatively cohesive religious minorities and their more or less orthodox churches. At the very least, the underlying theological anxieties and prejudices remain potent in section 501(c)(3)’s restrictions. Section 501(c)(3) thus continues to be a living establishment—not, to be sure, an eighteenth-century establishment of orthodox ecclesiastical religion, but a democratic establishment of liberal antiecclesiastical religion. Section 501(c)(3)’s practical effects confirm this liberal establishment. All religious organizations are excluded from campaigning and from substantial speech about legislation. Nonetheless, as I have argued elsewhere, section 501(c)(3) has differential effects among religious Americans, for “religious Americans who are particularly dependent on their own religious institutions when engaging in politics are especially likely to suffer as a result of section 501(c)(3).” Consider, for example, the effects on at least some of the orthodox. Americans with theologically liberal beliefs are not particularly confined to working

210 / Chapter Nine through their own churches. Substantively, they often have beliefs aligned with popular political views; procedurally, they rarely feel obliged to pursue their religious beliefs within their own churches’ lines of authority; and for both reasons, they are apt to have other avenues for protecting their beliefs. In contrast, religious Americans with relatively orthodox views often cannot so easily bring their religious beliefs into politics. Procedurally, they tend to feel bound to the religious authority of their churches, and some therefore feel obliged to strive for religious liberty through their churches. Substantively, moreover, their orthodoxy tends to be a mode of setting themselves apart from prevailing views, and it therefore can stand in the way of their forming broad political alliances. On both grounds, there is reason to think that they are more likely than theological liberals to be dependent on their churches for religious engagement in politics. Section 501(c)(3)’s exclusion thus appears to have distinctively severe consequences for at least some religiously orthodox Americans.

In short, section 501(c)(3) holds back Americans (usually from among the theologically orthodox) who need to work through their churches to bring their beliefs to bear on politics, while simultaneously favoring those (usually the theologically liberal) who do not need to rely so closely on such institutions.31 Establishment of a Civil Religion The establishment problem is especially clear because section 501(c)(3) favors not merely theological liberalism and its vision of limited ecclesiastical speech, but—what is even more worrisome—a government- defined version of this perspective. Section 501(c)(3) thereby tames American churches to conform to a uniform, governmental understanding of liberalism. In the prototypical vision of the Establishment Clause, violations simply favor Protestantism, Congregationalism, theological liberalism, or any other theology as it exists in American life. In contrast, section 501(c)(3) offers the privilege of nontaxation for churches that conform to a theological vision of legitimate ecclesiastical persuasion that is elaborately defined by the government. Later, in chapter 16, it will be seen how the government in section 501(c) (3) treats religious, educational, and charitable organizations as specialized associations that are devoted to their specialized ends, and thus not to political ends. The result (as also explained in chapter 16) is, on the one hand, the privilege of tax relief for churches, schools, and charities that

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engage only as fractions of themselves, with only fractions of their constitutional rights, and, on the other hand, a tax on those that pursue their own, more complete visions of themselves and their rights. In his book Seeing Like a State, James Scott observes how government tends to reshape private persons into the government’s vision of them, and section 501(c)(3)’s enforcement of specialization illustrates this danger. Whereas most churches once were fully engaged in American life, enjoying full constitutional rights, section 501(c)(3) has forced them into the government’s specialized vision of a religious organization, in which a church cannot participate in elections or substantially speak to influence legislation. A church thus becomes only a specialized part of itself, with its specialized religious rights, but not full rights of speech and petitioning. Leaving aside the incongruity of relying on tax law to define a church’s constitutional rights, the government uses tax law to press churches into the government’s politically neutered vision of churches, and this is an establishment not merely of religion but of a government vision of religion. This civic or democratic version of religion has disturbing similarities to the Roman regime of officially recognized gods. Not content to have the population devote itself to its own varied domestic gods, the Roman government subsidized official gods and thereby privileged not simply one religion but more generally the sort of religion that supported the state. This may seem like ancient history, but it is not entirely ancient. Section 501(c) (3) does not support only such religion as supports the state. Nonetheless, it privileges the sort of religion that is willing to be politically quiescent in elections and lobbying—the sort that is willing to reduce itself to what is consistent with “civility” and “democracy.” Like Roman official religion, this is genuinely a civil religion—a religion framed around the state and its understanding of its needs. Discriminatory Tax Privileges Of course, not all privileging of churches constitutes an establishment of religion. It therefore must be asked whether the grant of privileges in section 501(c)(3) is of the sort that violates the Establishment Clause. The answer comes with section 501(c)(3)’s combination of discrimination and taxation. Unlike many state provisions against establishments, the federal Establishment Clause did not adopt an equality or nondiscrimination test. It thus apparently does not bar all discrimination in favoring religion but only such discrimination as goes so far as to amount to an establishment of religion. In other words, whereas the Free Exercise Clause bars all discrimination in

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constraints (whether discrimination on the basis of religious differences or even on the basis of religion in general), the Establishment Clause was carefully drafted not to bar all discrimination in privileges. The sort of favoring of religion that amounts to an establishment is open to debate, but it is apparent that a distinction can be drawn between discrimination favoring religion in general and that favoring a particular religion or type of religion. Where a law singles out religion in general to favor it over nonreligion in the distribution of privileges, there remains a question as to whether the law goes so far as to violate the Establishment Clause. In contrast, where a law discriminates among churches or theologies in distributing privileges, it almost inescapably violates the Establishment Clause. And this is especially clear where the law discriminates in this narrow way regarding the distribution of tax privileges. Laws that discriminated among religions or churches in distributing tax benefits were the foundation of early state establishments. For example, Virginia law had authorized the assessment of tithes for the support of Anglican churches and ministers, and in the mid-1780s the legislature explored the possibility of more broadly enacting an assessment for the support of Christians. Massachusetts law distributed tax subsidies to the majority church in each town, and thereby, in reality, favored Congregationalists. One way or the other, these laws that discriminated among religions in allocating tax subsidies reveal what, prototypically, was considered an establishment of religion. Section 501(c)(3) falls into this pattern. As might be expected from the context in which it was adopted, the section grants tax privileges in a way that discriminates in favor of churches that are willing to commit themselves to the government’s theologically liberal and “democratic” vision of acceptable ecclesiastical speech. This discrimination among churches is the sort of narrowly discriminatory tax privilege that lies at the historic core of the Establishment Clause. In defense of section 501(c)(3), it often is said that the section’s benefit for religious organizations is matched by its benefit for other organizations— this being the same sort of masking argument seen earlier in response to the free exercise critique. The suggestion is that an unconstitutional subsidy for religion can be washed away by pairing it with subsidies for areligious things—on the theory that the areligious subsidies render the religious subsidies neutral or nonreligious. In more persuasive terms, one might say that section 501(c)(3) generally benefits nonprofits and it thus does not establish religion merely because it mentions churches in the course of defining the exempted nonprofits. This defense of section 501(c)(3) recognizes that,

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even when tax exemption substantially favors religion, it is not necessarily an establishment of religion. Section 501(c)(3), however, does more than generically favor religion. Rather it offers a privilege in a way that discriminates among religions or theologies. As seen above, section 501(c)(3) restricts its privilege of exemption on the basis of whether churches adhere to the government’s theologically liberal vision of church speech in politics. The establishment problem here is thus not a generic discrimination in favor of religion but a narrower discrimination in favor of theologically liberal religion. This discrimination among theologies for the purpose of allocating tax exemptions has no cure in the grant of exemptions to areligious organizations. Section 501(c)(3)’s restrictions thus violate the Establishment Clause, and this establishment problem deserves emphasis, because it is not contingent on whether section 501(c)(3) subsidizes or constrains. Although chapter 8 shows that the section clearly imposes its restrictions with the force of law, it now can be seen that, even if the section merely subsidizes churches, it still can be unconstitutional under the Establishment Clause. And because the section’s restrictions confine the privilege of exemption to churches that bow to a theologically liberal understanding of ecclesiastical speech, the restrictions clearly violate the Establishment Clause. Thus, regardless of whether section 501(c)(3) subsidizes or constrains, it is profoundly unconstitutional.

( Section 501(c)(3)’s restrictions infringe nearly the full range of First Amendment principles. The restrictions violate the rights of speech, petitioning, free exercise, and disestablishment.

TEN

Licensing and Wholesale Suppression

Although the conflict between section 501(c)(3) and constitutional principles centers on the First Amendment, the conflict cannot be understood without looking slightly beyond this amendment. Section 501(c)(3) has the effect of establishing administrative licensing of speech and religion, and in this and other ways, it evades procedural freedoms, notably those relating to juries and due process. The section thereby poses a particularly serious threat to speech and religion, most profoundly by shifting the government’s control of speech from retail to wholesale proceedings.

Licensing What is a license? It is a grant of permission. One sort of licensing concerns the distribution of government property or privileges—as when the government gives permission to enjoy its information, land, proprietary rights, and so forth. Another sort of licensing, however, which is of more interest here, concerns constraints. Under this sort of licensing system, one must get prior permission to escape a restraint on one’s freedom. Prototypically, the law prohibits what it defines as injurious, and one is free to do whatever is not prohibited. A licensing system, however, inverts this approach. It sweepingly bars an entire category of acts, regardless of whether or not they are injurious, and then requires one to get a license or permission before one does such things. Licensing thus displaces a presumption of freedom with a presumption of restraint. In the absence of constitutional protection, this presumption of freedom is not very strong, for it is merely the presumption that one is free where there is no prohibition. Licensing, however, replaces this with a presumption that one is not free until one gets permission. And this is par-

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ticularly worrisome where the government licenses speech or religion, for it thereby creates a presumption against a sort of freedom protected by the Constitution. Licensing, morevoer, shifts the location of judgment. Under ordinary laws, each person subject to the law is free in the first instance to judge for himself whether or not his actions are lawful, subject only in the second instance to the judgment of a court. Under licensing, however, both judgments are shifted to an administrative officer. He judges whether one may act, thus leaving one dependent even in the first instance on a government determination. And where courts defer in any way to the licenser’s judgment of the law or facts, his judgment as to whether one has violated the licensing laws effectively deprives one of much of one’s recourse to the courts. Again, this is especially troubling as to the licensing of speech and religion, for Americans enjoy rights under the Constitution to make their own initial judgments about their speech and religion, and they have the freedom to have any government intrusion on these rights resolved in a court of law, with a judge, a jury, and the full due process of law.

Licensing of Speech The initial licensing problem with section 501(c)(3) is that it establishes a system of licensing speakers. To enjoy tax-exempt status under section 501(c)(3), an organization generally needs to be recognized as tax exempt by the IRS, which then usually sends the organization a tax exemption determination letter. Although churches can qualify for exempt status without applying to the IRS for recognition, section 170(c) requires compliance with section 501(c)(3)’s lobbying restriction. Churches therefore have a practical need for IRS recognition under section 501(c)(3), usually documented by a determination letter, if they are to have contributions be deductible. IRS recognition thus becomes a mode of licensing, and the determination letters serve as imprimaturs of compliance. This becomes a question of licensing speech because the IRS will not recognize the section 501(c)(3) status of a religious, educational, or charitable organization that is currently violating the section’s speech restrictions or that is not committed to complying with the restrictions. When applying for recognition of tax-exempt status, an idealistic organization must first answer questions such as “Do you support or oppose candidates in political campaigns in any way?” and “Do you attempt to influence legislation?” Only the right answers secure recognition and a determination letter. The letter thus becomes a certification of an organization’s commitment to self- censorship,

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and the IRS uses the recognition process to prejudge or license the permissible range speech for an idealistic organization.1 The IRS even requires organizations that apply for recognition to submit “representative copies” of their “political literature, brochures, pamphlets, etc.” and of their “legislative literature, brochures, pamphlets, etc.” In this way, when issuing determination letters, the IRS actually reviews political publications to make sure that an organization will comply with the limits on petitioning and political speech. Although the letters most immediately function as licenses for speakers who may speak without being taxed, they also serve as licenses of speech.2 Why is this such a problem? Licensing is notoriously dangerous for speech. Following the example of the Roman Inquisition, the Star Chamber in England established licensing of the press. The English even briefly imposed licensing of stage plays, thus extending the control to oral speech. The English and then Americans, however, increasingly rejected all such licensing as a threat to freedom. The English abandoned their licensing system in 1695, and when Americans adopted the First Amendment’s guarantee of speech and the press, licensing was the model of what they feared. Although not the only sort of constraint on speech barred by the First Amendment, licensing was the central underlying concern. Ever since, the First Amendment’s protection against licensing has been considered a distinctively strong constitutional barrier. Much free speech doctrine focuses on the content of speech, and such doctrine therefore must parse what speech is protected and what it is not—a favorite technique being the compelling-government-interest test. In contrast, the First Amendment’s bar against licensing focuses on an especially dangerous method of controlling speech, and it thereby flatly bars this method, regardless of government interests relating to content. Admittedly, the Supreme Court has sometimes suggested otherwise, and it has sometimes upheld the licensing of images and other “speech” that extends beyond words, but it has never held that the First Amendment permits the licensing of mere words. Licensing is a particularly dangerous threat to the freedom of speech, and it is therefore distinctively prohibited. One might protest that, at least on the surface, the IRS licenses only churches, schools, and charities as speakers and that, at least in form, the government does not license their speech. But even though the licensing of speakers does not give the IRS the power to license particular forthcoming publications or sermons, it does give the IRS the power to license the speech expected from organizations—as indicated by their goals and current publications. And this should not be a surprise, as the licensing of speakers has

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long been a part of the licensing of speech. In the seventeenth century, for example, the Star Chamber licensed not only particular publications but also who could be a printer, and it would not license printers it thought would publish undesirable views. Similarly nowadays, the IRS refuses to grant tax- exempt status to organizations when it expects them to violate section 501(c)(3)’s restrictions on their political speech. The licensing of speakers allows the IRS to control speech not only at the front end, when recognizing organizations as tax exempt, but also at the back end, when threatening enforcement. In licensing printers as well as particular books, the Star Chamber enjoyed the power to deprive a printer of his license if he failed regularly to comply with the licensing of publications. Thus, rather than have to prosecute a printer for each failure to get a license for a particular book, the Star Chamber could control speech by holding out the threat of simply withdrawing a printer’s license to print at all. Similarly, in contemporary America, the licensing of speakers gives the government a draconian threat that it can use to control speech.3 The IRS rarely withdraws tax- exempt status but rather merely uses the threat of withdrawing it to secure compliance with its dictates about speech. It lays out (in its rules, interpretation, and guidance) what is impermissible speech for churches, schools, and charities, and then, when an organization seems to drift away from compliance, the IRS warns it that it is risking a loss of its tax status—at which point the organization almost always bends over backward to comply. The IRS gets this submissive response because the loss of tax-exempt status is so disproportionate and because the IRS uses selective enforcement to instill fear. The IRS can thereby easily get not merely compliance but even overcompliance. Both before publication and later, at the enforcement stage, the licensing of speakers gives the IRS a formidable control over speech.4 The vagueness and overbreadth of the speech restrictions add to the licensing problem. Notwithstanding myriad complaints about the confusing indeterminacy and breadth of section 501(c)(3) and of the IRS’s interpretation and guidance, the IRS has not done much to offer clarification. Idealistic organizations, however, depend on IRS approval. They therefore feel obliged to comply with almost any IRS demand, even where it is more than the statutory speech restrictions really require and more than the IRS could openly justify.5 a a. Organizations other than churches can avoid the vagueness of the word “substantial” in the lobbying restriction by opting into an “expenditure test” laid out in section 501(h). But this section cures only one of the vagueness problems, and it does not help churches.

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IRS clarification, however, would not solve the underlying overbreadth problem, for licensing necessarily overconstrains. In fact, overconstraint is the very nature of all licensing. In order to prevent a relatively small number of bad acts, licensing requires one to get prior permission for an entire category of acts, thus creating an impediment for a relatively large number of innocent acts. This overconstraint matters for the Supreme Court’s speech doctrine, because it means that licensing can never satisfy the Court’s requirements that constraints on speech must be narrowly tailored, let alone that they must be the least restrictive means. Put more generally, the overbreadth reveals the heavy-handed and dangerous character of licensing. Even worse, the licensing of speech tends to render the populace submissive. All licensing of speech tends to create, in the minds of the people, a presumption against relying on their own judgment about what they should say. In this instance, it pressures Americans, when they join together for idealistic ends, to get permission from the government before speaking in politics, and it thereby inculcates a sense of dependence on government for the primary mode of holding it to account. Such licensing (as I have explained at length in other scholarship) deprives the people of their sense of sovereignty over government and even over their own speech, and in this way, it inverts the relationship of the people to government.6 The dangers of licensing thus run deep. The standard concern about licensing speech is that administrative predeterminations about speech will often be mistaken, but this is only the beginning. Such licensing also has other dangers, such as that it inevitably overconstrains and renders the public submissive. It therefore is unsurprising that the First Amendment distinctively bars such licensing, and it is very disturbing that section 501(c) (3) nonetheless establishes it.

Licensing of Religion Licensing is a problem not only for speech but also for religious liberty. And there is special reason to worry about licensing in this area, as it is a means of rendering religious liberty conditional. There is a remarkable similarity between the licensing of religious dissenters and their meetings under the English Toleration Act and the licensing of religious organizations and their preaching under section 501(c)(3). It will be recalled (from chapter 9) that when Parliament in 1689 enacted the Toleration Act, it granted religious dissenters only a conditional religious liberty. Rather than remove the existing statutory penalties on religious minorities, Parliament merely offered relief from such penalties where the dis-

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senters met specified conditions—conditions designed to ensure that their religious beliefs would not endanger the government. One such condition was that dissenters needed to take oaths that assured the government of their loyalty; another was that they needed to have their meetings or congregations certified. Although the Toleration Act required officials to register qualifying dissenters and their meetings, the application of the act in the colonies was uncertain, and there were widespread expectations in some colonies that such persons and places needed to be licensed.7 This licensing of preachers and meetings was the primary threat to Baptists in Virginia in the early 1770s and thus a central foundation for understanding Virginia’s guarantee of the free exercise of religion. Anglicans resented Baptists for gathering so many followers among western settlers and the poor, and when Baptist clergy preached and held meetings without a license, Anglicans sometimes charged them with disturbing the peace. Baptists protested that it was unclear under the Toleration Act where religious dissenters could get a license in the colony. Regardless, some county courts imprisoned the ministers who preached and held meetings without a license—unless they posted bond that they would not do this again. On the whole, however, the Baptists refused to cower, and their ministers “would go singing from the courthouse to the prison.”8 In this context, the 1776 Virginia Declaration of Rights unconditionally guaranteed that “all men are equally entitled to the free exercise of religion.” It thereby rejected any mere toleration or other merely conditional liberty, and thus precluded any licensing of religious meetings and preachers. Similarly, the First Amendment to the U.S. Constitution unconditionally secured the free exercise of religion. This amendment evidently recognized the danger of mere toleration—the danger, that is, of licensing and other conditions on religious liberty.9 Nonetheless, section 501(c)(3) revives a system of licensing religious meetings or associations based on what they will preach. The IRS recognizes that it is coming close to the old danger of licensing religious associations and their preaching, and it therefore does not directly require such associations to apply for IRS recognition and determination letters. The IRS, however, does not need to make such recognition an overt requirement for churches, because (as already noted) churches need IRS recognition under section 501(c)(3) if they are to qualify under section 170—so their donors can deduct their contributions. The combination of sections 170(c) and 501(c)(3) thereby gives the IRS the power to license churches on the basis of their speech. The past has thus come back to life. In the late seventeenth century,

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churches enjoyed only toleration, not full religious liberty, and religious meetings and their preachers were licensed for their politically worrisome speech. Similarly, under section 501(c)(3), religious associations are licensed to limit their political speech.

Juries, Due Process, and Other Procedural Rights The licensing of idealistic associations and their speech denies Americans their rights to judges, juries, due process, and other procedural freedoms. Nor should this be a surprise. When the government systematically denies substantive constitutional rights, such as those of speech and religion, it necessarily must also deny procedural rights, for only in this way can it systematically avoid the courts and their pesky constitutional objections. The Ebb and Flow of the Licensing of Words The suppression of speech has almost always come with abridgments of procedural rights, and the most efficient way of doing this has been administrative licensing. In the late seventeenth century, licensing was rejected, but it has since returned through section 501(c)(3). The early history of the regulation of the press in England was one of continued attempts to evade procedural rights. In the sixteenth and seventeenth centuries, the evasion was administrative. Up through 1641, the English government employed the Star Chamber to control the press with civilian-style prerogative process (what nowadays would be called administrative process), and it thereby evaded the courts of law, regular judges, juries, and the due process of law. Even afterward, until the abolition of the licensing laws in 1695, the government primarily relied on the Stationers’ Company and the universities to control what their members printed or published (this being the sort of administrative process nowadays associated with independent or private agencies). After the abandonment of the licensing laws, however, the government had to control the press with prosecutions in the courts of law, with juries, real judges, and the due process of law.10 Of course, the government persisted in its effort at evasion, but it now had to switch from the sweeping administrative evasion of the courts to a narrower evasion of juries. It attempted in seditious libel cases to withdraw key questions from juries by recasting issues of fact as questions of law, and it even argued that judges could direct juries to decide only portions of the question of guilt (only publication, not unlawful content). In these circum-

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stances, in England and then America, defendants often had to struggle to have the jury decide the whole issue of guilt.11 It thus becomes apparent that systematic assaults on speech and the press tend to come with evasions of procedural rights; and by the same token, the systematic protection of speech and the press depends on preserving procedural rights. The right to be heard by a regular judge, the right to have a jury, and the right to the full due process of the regular courts are essential for the freedom of speech and the press. Although the freedom of speech is a substantive right, it necessarily depends on procedural rights. Nowadays, however, all this has been largely forgotten. The government has reverted to administrative licensing of words, thus returning to the full evasion of the courts and their due process of law, judges, and juries. As in the seventeenth century, it evades these procedural rights both in government agencies (such as the Federal Communications Commission) and in other bodies (such as private universities), but nowhere is the evasion more brazen than in the IRS. Tax Enforcement and Evasion Accentuating this evasion of procedural rights through the prior licensing of churches and speech is the use of tax procedures to enforce the licensing. When an organization fails to secure an IRS determination of section 501(c) (3) status or gets this determination but fails to comply with the speech restrictions, the IRS can enforce the licensing system with the severe and truncated administrative process it uses to collect taxes. This process is without courts, judges, and juries. Although the tax proceedings can be appealed to the courts, the review there comes with much judicial deference both to the IRS’s interpretations and to its factual record. Therefore, even on appeal, Americans cannot get a court’s independent judgment of either the law or the facts. The result is that, not only in its initial licensing but also in its subsequent enforcement, the IRS evades the due process enjoyed in the courts of law. Under section 501(c)(3), two of the most truncated of processes, licensing and tax enforcement, are combined to abridge First Amendment freedoms. In effect, the IRS holds a sword over churches and other idealistic associations with which it can demand that they conform their speech to IRS standards, as determined by an officer hidden away in the IRS, usually with little chance of an independent decision by a court. Nor should this be as surprise. By sneaking substantive regulation into the tax code and, by impos-

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ing it through licensing, the government has found an easy path for taking serious questions out of the courts, including questions about the freedom of speech. Reversed Burdens, IRS Discrimination, and Evasion of Judicial Review Adding to the due process issues is a reversal of the burdens of proof and persuasion. In 1958, in Speiser v. Randall, as already seen in chapter 6, California allowed idealistic associations to enjoy tax exemption only on the condition that they make a declaration of loyalty. Although the Supreme Court recognized that “a discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech,” it decided the case on procedural grounds, explaining that this sort of enforcement procedure, which “places the burdens of proof and persuasion on the taxpayer is a violation of due process.” The current licensing similarly allows the IRS to deny the freedoms of speech and of religion without undertaking the usual burdens of proof and persuasion, and the licensing thereby leaves any taxpayer that wishes to enjoy its First Amendment freedoms with the burdens of proof and persuasion in a suit against the IRS.12 Another aggravating element that comes with the evasion of due process is that IRS officers—both at the initial licensing stage and at the enforcement stage—can often get away with selective, arbitrary, and even overtly political licensing and enforcement. It is difficult to measure a danger that arises precisely because of its evasion of public court proceedings, but this does not mean it is not real. Most recently, there is reason to think that the IRS sometimes actively denied exemption to eligible conservative organizations, such as those associated with the Tea Party or Israel. Even where the IRS has allowed section 501(c)(3) status to an organization, this section (as summarized long ago by IRS attorney William Lehrfeld) is “an opportunity for members of the executive branch to intimidate the nonprofit sector by claiming that perhaps they are indulging or overindulging in the expression of their views on legislative matters, and therefore should be silenced by the Internal Revenue Service.”13 Making all of this worse, the IRS rarely allows its licensing under section 501(c)(3) to go to trial. Rather than let the courts review its licensing of speech and churches, it has tended to settle or otherwise avoid constitutional challenges. Thus, ever since Regan v. Taxation with Representation in 1983, there has been little chance to reconsider the constitutionality of section 501(c)(3)’s restrictions, and the IRS has been able to license speech and

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churches with limited judicial review. The licensing of speech and churches thus evades due process not only in the IRS but also in the courts.

Wholesale Suppression In its licensing of speech and its evasion of juries and other due process, section 501(c)(3) has been part of a broader trend toward the wholesale suppression of speech. Government can suppress speech in different ways, and the method of suppression matters. One method is by prosecuting persons for their speech—as when government long ago prosecuted individuals for seditious libel—and although this sort of suppression was dangerous, it at least depended on particular prosecutions in the courts of law for particular words, and in this sense, it involved retail proceedings. In contrast, government nowadays suppresses speech through administrative licensing decisions, which spare the government from having to prove offenses in particular proceedings for particular words and thereby allow it to engage in wholesale suppression. The First Amendment’s guarantee of freedom of speech most centrally and clearly barred licensing, and this has puzzled many scholars. Postpublication restraints on speech, they protest, can be just as dangerous as prior licensing. One thing that distinguishes licensing, however, is that it avoids retail proceedings. Postpublication restraints usually must be imposed piecemeal in retail court proceedings, held in public, with judges, juries, and other due process. In contrast, administrative licensing escapes the courts, their publicity, their cost, and their judges, juries, and due process, and it thereby enables the efficient wholesale suppression of vast amounts of speech.

( Section 501(c)(3)’s restrictions thus do more than violate the First Amendment in conventional ways. They also establish a system of licensing and otherwise violate procedural rights—with the effect of exacerbating the First Amendment problems.

ELEVEN

Government Interests

Although section 501(c)(3) appears to violate First Amendment rights and various procedural rights, and although it does so with the force of tax law, it often is said to be justified by government interests. The theory is that the federal government has an interest in suppressing the speech of religious, educational, and charitable organizations that overcomes their claims of constitutional rights. The underlying doctrine is the compelling-government-interest test. As expounded by the Supreme Court, a “compelling government interest” can justify the government in response to an allegation that it has violated a constitutional right. Of course, the allegedly unconstitutional restriction must be narrowly tailored to the government interest, for otherwise the government interest would not be very compelling. The Court sometimes even adds that the restriction must be the least restrictive means for accomplishing the interest. Government interests are thus a standard justification for intrusions on rights, as long as the infringements are narrow enough, and the defenders of section 501(c)(3) may appear to have a point when they argue on such grounds. Claims of compelling government interests, however, depend on their details, and it therefore is troubling that the defenses of section 501(c)(3) almost never evaluate the alleged government interests in detail. First, they almost never consider whether the asserted interests are within the lawful powers of the federal government. Second, they often breezily assume that the interests are compelling, without pausing for a detailed analysis of whether the restrictions on speech, petitioning, and religion are narrowly tailored. If the restrictions do not tightly fit lawful government ends, they are not really compelling and are not constitutional. This chapter therefore considers such questions. Although it does not go

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into the fullest possible detail, it dwells long enough on each interest to answer the key questions as to whether the interest is within the government’s lawful powers and whether it is genuinely compelling—that is, whether the restriction is narrowly tailored. Overall, one must wonder whether there is any government interest that can explain away section 501(c)(3)’s violation of speech, petitioning, free exercise, and disestablishment rights.

Can Government Interests Really Justify Laws That Violate Enumerated Constitutional Rights? Before evaluating the particular government interests that are said to justify section 501(c)(3), this chapter must pause to reconsider the doctrine that a government interest can excuse the violation of a constitutional right. This doctrine, it will be seen, should be viewed with suspicion. The doctrine on compelling government interests is worthy of distrust because it is understood to justify violations of constitutional rights. As put by the Supreme Court in a religion case, Sherbert v. Verner, the inquiry is “whether some compelling state interest . . . justifies the substantial infringement of appellant’s First Amendment right.” More generally, the doctrine is worrisome because it inverts rights and powers. The Constitution ordinarily subjects powers to rights. It enumerates powers and then enumerates rights, and the rights thereby carve out what James Madison, Alexander Hamilton, and their contemporaries considered “exceptions” to the powers. The compelling-government-interest test, however, alters the role of rights, for it invites judges to introduce considerations of power to trump rights. Thus, whereas rights were once exceptions to power, now power or government interests can be exceptions to rights.1 The whole point of having enumerated constitutional rights is that they are trumps. Rather than allow government power to defeat rights, the enumeration of rights makes clear that these rights defeat government power. It therefore is odd to suggest that such a power or interest can cut back on an enumerated right. The effect of this doctrine is to invert the relationship between rights and power and thereby turn liberty and power upside down.2 Of course, if constitutional rights are understood in a manner that is too broad or open-ended, the compelling-government-interests test seems almost inevitable. Judges often define rights too expansively or too indefinitely, and they then feel the need to use the compelling- governmentinterests test to cut back on the rights—if only to make them plausible. For example, when the free exercise of religion was expanded from a freedom from penalty to a right of exemption, the compelling-government-interest

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test was used to delimit the freedom. It was also so used when the freedom of speech was expanded from a freedom from licensing of words to a freedom from injunctions, to an indefinite freedom for postpublication restraints, and to an open-ended freedom for nonverbal expression. To make these expansive definitions of the rights practicable, judges relied on the compelling-government-interest test to cut back on the alleged extent of freedom.3 This method of moderating the expansive perimeter of rights has come at a cost for the core of the rights. After the judges used the compellinggovernment-interest test to tame the right of religious exemption, they also used it to measure the more basic freedom from penalties on religion. And after having been used to confine the freedom from injunctions, the indefinite freedom from postpublication restraints, and the freedom of expression, the test also seems to justify licensing of speech—even licensing of merely verbal speech.4 In contrast, however, when courts understand the definition of rights with care, they have no need to ask about countervailing government interests. Courts can even sometimes adopt moderately broad definitions of rights without creating the need for doctrines that cut back on the rights. But when they engage in lazy judging—in which they do not even bother to define rights but merely declare them to be individual interests—the resulting rights are indefinitely expansive, and the judges inevitably must develop doctrines that trump the rights. The compelling-government-interest test has thus often cut back on rights where judges have failed to take sufficient care in defining them. This is not to say that there should be no judicial role for considering government interests. They can matter for double- checking definitions of rights—in particular, for considering whether a right’s definition goes so far as to be absurd. They are perhaps inevitable in equal protection doctrine for understanding when suspect classifications are not unlawful. But otherwise, there is much risk in allowing government interests to define or defeat claims of rights, lest rights come to be trumped by power.5 The compelling- government- interest test therefore deserves suspicion. The purpose of enumerated constitutional rights is to trump government powers, and it defeats the purpose of having such rights if the powers can trump the rights. It thus is no surprise that the Supreme Court in 2010, in Citizens United v. Federal Election Commission, acknowledged the possibility that political speech may stand beyond any government interests—that “political speech simply cannot be banned or restricted as a categorical matter.” To be sure,

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the Court refrained from reaching so broad a result and instead more modestly concluded: “No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” But even this lesser standard has clear enough implications for section 501(c)(3). No government interest can justify the section’s restrictions on the political speech of nonprofit organizations.6 Nonetheless, until the Court reaches this conclusion in a case on section 501(c)(3), compelling government interests will remain a potential justification for section 501(c)(3)’s restrictions. This chapter must therefore still consider the relevant interests. On careful examination, it will become apparent that the government’s alleged interests cannot justify section 501(c) (3)’s suppression.

Government’s Financial Interest in Exemptions A standard defense of section 501(c)(3) rests on the government’s financial or property interest in the money it does not collect from tax- exempt organizations. From this point of view, when the federal government funds churches, schools, and charities, it is justified in preventing them from using its money to influence the government. The government, however, has no such financial interest, and even if it did, the restrictions are far from being narrowly tailored to any such interest. What Government Financial Interest? To begin with, it is unclear exactly what lawful property interest the government has in the money it does not take in taxes from idealistic associations. The government undoubtedly has a lawful interest in all sorts of private conduct to the extent of the government’s enumerated powers. But what financial interest does it have in money it decides not to claim as a tax? The government’s interest cannot be in the private use of public funds, because it has no interest in money that is not owed to it as a tax. As already noted in chapter 8, the money that, under section 501(c)(3), is not assessed as a tax is privately owned. Such money does not belong to the government, and the government has no financial interest in preserving it from being used for political speech. Nor is the government’s alleged interest akin to public funds that have been distributed into private hands. The mere fact that the government did not take money in taxes cannot convert it to public money. It is often assumed that all exemptions from taxes are tax expenditures, but as seen in

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chapter 8, the reality is more complicated. Sometimes, exemptions from taxes have a subsidizing effect. Sometimes, however, exemptions are not the equivalent of subsidies, but rather are merely mechanisms for demarcating the boundary or baseline of the income tax. For example, when section 501(c)(3) exempts idealistic organizations, it simply is acknowledging that they are not the sorts of organizations that would ordinarily be subject to an income tax. Thus, even the Joint Committee on Taxation concedes that 501(c)(3)’s tax exemptions are not tax expenditures. Accordingly, the government’s alleged financial interest in the money it does not take from idealistic organization cannot justify section 501(c)(3)’s restrictions. The government has no such interest in the money. Narrowly Tailored? That the government is going far beyond any interest it may have in the funds of 501(c)(3) organizations is also apparent from the breadth of the section’s restrictions on speech and petitioning. Even if the government’s exemption of idealistic organizations somehow gives it a financial interest in the money of such associations, this cannot justify section 501(c)(3)’s sweeping restrictions on petitioning and political speech. These restrictions bar all campaigning and much lobbying, and they thereby reach way beyond any alleged subsidizing effect of section 501(c)(3). For example, when the section restricts all campaigning and substantial attempts to influence legislation, it restricts the use of all or most of the private wealth of the affected organizations, not merely the amount of any supposed subsidy. The restrictions, moreover, suppress speech even when it is more or less without cost—as when a preacher speaks from his pulpit. Section 501(c)(3) thus suppresses vast amounts of speech and petitioning that is not government subsidized. The section therefore cannot be considered narrowly tailored to the government’s alleged financial interest, let alone least restrictive.7 The government certainly has an interest, to the extent of its lawful powers, in limiting the use of its subsidies to taxpayers, and it therefore (as will be seen in chapter 13) has an interest in limiting the use of deductions. Under the First Amendment, however, it has no lawful interest in suppressing petitioning and political speech. It therefore is telling that section 501(c)(3) limits all campaigning and all lobbying that amounts to a substantial part of an organization’s activities. These limits are not tied to the deductions. Instead, they are limits on central modes of speech to and about

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government, regardless of how it is funded. The limits therefore cannot be understood as founded in any federal interest in the use of deductions. In terms of the compelling-government-interest test, the restrictions cannot be considered narrowly tailored. It would be one thing for the government to limit the actual misuse of actual government money by private organizations. It is quite another, however, for the government to bar the use of private money by private associations for all of their electioneering speech and much of their speech to influence legislation—just because their money is untaxed. This is anything but narrowly tailored, and the very breadth of the suppression reveals it to be unlawful. The Circle of Money Of course, when Congress really subsidizes associations, whether directly or through the tax system, it may have good reason to make sure that it will not be paying for campaigning or lobbying. A circle of money, moving back and forth between Congress and tax-exempt organizations, would be very worrisome. When Congress subsidizes business corporations, however, it frequently leaves ample room for expansive circles of money—as evident in industries as diverse as health care, banking, and defense. It therefore remains an open question as to why Congress is so worried about the alleged circle of money involving charitable, educational, and religious organizations. Is a circle of money more dangerous in idealistic institutions than in defense contractors? At the very least, Congress can avoid the political use of government money in much less restrictive ways than by denying idealistic organizations their freedom of petitioning and political speech. For example, if Congress were really granting government money to such associations, it could subsidize particular projects, dedicated to particular ends. It even could do this through dedicated subsidiary organizations. Rather than take this sort of narrowly tailored approach, however, Congress broadly suppresses all electioneering speech, and much speech to influence legislation, by almost all churches, schools, and charities. Section 501(c)(3)’s restrictions are thus not narrowly tailored (let alone least restrictive) for carrying out a government financial interest in its “subsidies.” Even if the government had a financial interest in the money of idealistic organizations, the government’s partial subsidy of some speech by some associations cannot justify the section’s suppression of all campaign speech

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and any substantial speech to influence legislation by almost all idealistic organizations. Such suppression is the opposite of narrowly tailored and is therefore utterly unjustified.

Government’s Interest in Protecting the Political Process In vindicating section 501(c)(3), its defenders often say that the government has an interest in protecting the political process. If the federal government has the power to prohibit bribery, voter fraud, and other political corruption, might it not have a general power to protect the political process by applying section 501(c)(3)? What Power? One difficulty is that the Constitution does not give the federal government any general power to protect the political process. Instead, it gives Congress the much more limited power to prescribe the time, place, and manner of elections: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.” In addition, Congress can legislate what is necessary and proper for carrying out this power of prescribing the time, place, and manner of elections, but this is not much of a foundation for a general power to protect the political process, let alone by suppressing political speech. Historically, as shown by Robert Natelson, the Time, Place, and Manner Clause was not understood to give Congress a power over the conduct of campaigns. Nor should it be reinterpreted to allow Congress such a power. Although some scholars have argued that Congress should be able to use this clause to legislate against campaign corruption, the states already have a power to legislate against this danger, without creating the larger danger of allowing Congress to control the campaigns through which it is elected. And when Congress claims a power to control not merely election campaigns but election speech, there are profound risks.8 The danger is particularly severe when it is suggested that the alleged power to protect the political process gives the government a compelling interest that trumps the First Amendment. It is worrisome enough when a congressional power is expanded to give Congress control over its own election. The danger is even greater when the expanded power is said to override one of the most basic of constitutional rights.

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The history of section 501(c)(3) is illuminating, for it shows how incumbent politicians are apt to use any power over the political process to protect themselves by stifling those who might unsettle their authority. More generally, the history reveals how a law protecting the political process can, in reality, enforce populist “democratic” demands for the suppression of speech that does not conform to an overlapping liberal consensus. One of the most basic benefits of political debate is to limit power. And one of the key advantages of idealistic associations is that, in espousing their ideals, they can challenge consensus and other complacent thinking. Therefore, although it is constitutionally absurd for politicians to be able to limit political debate, it is especially absurd for them to be able to protect themselves from idealistic speech. It is Orwellian doublespeak to suggest that the government needs to stifle idealistic associations in order to protect the political process. Narrowly Tailored? Even if Congress had a lawful interest in protecting the political process, it is unclear how this interest could justify section 501(c)(3). It is one thing to protect the political process but quite another to suppress the political speech of idealistic organizations from which Congress would rather not hear too much. This is anything but narrowly tailored and least restrictive. For starters, the Time, Place, and Manner Clause concerns only elections, not speech to influence legislation. Thus, even if it gave Congress an interest in protecting the election process, it is no excuse for suppressing speaking and petitioning to influence legislation. (Even under English monarchs, who were not elected, there was a right to petition for redress of grievances.) Section 501(c)(3)’s restriction on lobbying is therefore not narrowly tailored to serve the government’s interest under the Time, Place, and Manner Clause. Moreover, even if the Time, Place, and Manner Clause gives Congress an interest in protecting the federal political process, the clause does not concern state elections or other state politics. Accordingly, when section 501(c) (3) suppresses speech in the states’ political processes, it wanders far beyond the alleged underlying interest. It is no surprise that section 501(c)(3) extends far beyond any lawful federal interest. As evident from the history in part II, Congress adopted the section’s speech restrictions, not to protect the political process, but rather to protect itself from the political process. And it did so in response to lurid majoritarian anxieties about danger from minority speech.

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Ultimately, it turns logic upside down to justify the suppression of political speech on the theory that the government has an interest in protecting the political process. In fact, unrestricted political speech is the primary protection for this process. Top- down controls can be essential for preventing criminal abuses, such as bribery and other corruption, but the vigorous exercise of speech from below is what really holds the government to account. Any attempt to suppress speech for the sake of the political process must therefore be viewed with the deepest suspicion. In structural terms, if government has a power to protect the political process by suppressing political speech, it can control the speech that controls government. For example, if Congress can bar the idealistic half of associations from speaking about the election of members of Congress, and if it can substantially limit such associations in their speaking to affect what Congress does, it can free itself from some of the most important speech through which Americans choose and influence their government. Congress can thereby largely control its own fate, making itself accountable not so much to the people as to the people it permits to speak. This substitutes the power of government for the power of the people and turns the political world upside down.

Government’s Interest in Equalizing Political Speech Another justification of section 501(c)(3)’s restrictions is that Congress has an interest in equalizing or otherwise limiting political speech. Although often framed philosophically, this is a candid claim of a government interest in controlling political speech, and as applied to section 501(c)(3), it means a power to limit political speech in politics. John Rawls popularized the view that speech limits are justified by the democratic need to ensure an equality of voice. In his Political Liberalism, he writes that it is “necessary to prevent those with greater property and wealth, and the greater skills of organization which accompany them, from controlling the electoral process to their advantage”—the problem being not necessarily their dishonesty or self-dealing, but even merely their “[s]hared political convictions and aims.” Accordingly, “the liberties protected by the First Amendment may have to be adjusted”—for example, by limiting expenditures for campaign speech and political advertising—to secure for “all citizens a full and equally effective voice in a fair scheme of representation.” Although Rawls merely delegitimized ecclesiastical speech, he actually proposed legal restrictions on the speech of the wealthy.9 Somewhat similarly, in his book Democracy and the Problem of Free Speech,

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Cass Sunstein argues that the First Amendment should be understood to protect freedom of speech to the extent it serves the goals of “political equality” and “deliberative democracy,” and he thereby justifies “democratic” interference with speech. He even calls for government to enact a “New Deal” for speech, in which Congress and administrative agencies would oppose “distorting effects” on democracy, such as the “influence” of television news, of advertising, and of political expenditures by the wealthy. This approach ties freedom of speech to a liberal “democratic” vision of “government by discussion” among “citizens,” and it thereby cuts back on the freedom of private actors whose unequal “influence” distorts discussion—as if there were a discernable baseline. Sunstein aptly notes that his approach follows from the sort of liberalism associated with Rawls—to which one might add that both of these scholars echo long-standing liberal concerns.10 An especially egalitarian version of these arguments comes from Ronald Dworkin. American political theory has for centuries posited that the sovereignty of government, and in particular the obligation of its laws, rests on the consent of the governed. Earlier generations of Americans concluded that there could be no taxation without representation and eventually that all citizens had an equal right to vote. Dworkin, however, takes this sort of argument further, insisting that all citizens must have not only equal voting rights but also equal voice, including equal political speech: “We must permit every citizen whom we claim bound by our laws an equal voice in the process that produces those laws . . . or we forfeit our right to impose our laws on him. Freedom of speech enforces that principle and so protects citizen equality.”11 In these views, the equal freedom of speech comes with an equalizing limitation on speech. And the government, by implication, has a power to restrict speech to ensure that it is not used unequally. The Freedom of Speech, Not the Equality of Speech Freedom and equality are different. Indeed, they often are in tension, and this is the most immediate problem with the theories that government has an interest in restricting speech for the sake of equality in speech. The Constitution in places protects equality—most saliently where, in the Fourteenth Amendment, it secures the equal protection of the laws. In the First Amendment, however, it protects not the equality of speech but the freedom of speech. It therefore is puzzling as to why the First Amendment should be understood to provide for equality, let alone permit the government to restrict speech as a means of achieving equal speech.

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Of course, the First Amendment provides its rights equally, but it does not guarantee equality in how these rights are used. In particular, when securing freedom of speech, it does not limit this to an equality of speech or otherwise leave room for government to suppress political speech in the name of equality. No Power over Speech Congress, moreover, has no power to control speech. Certainly, it has a power over interstate commerce and thus, perhaps, some incidental authority over speech. But it has no direct power over speech, let alone political speech, that might give it a lawful interest in singling out political speech for suppression. When Federalists carried the adoption of the Constitution in 1787–88, they repeatedly emphasized that it did not give the federal government any power over speech or the press. Most famously, James Wilson asked about the liberty of the press, “what control can proceed from the federal government to shackle or destroy that sacred palladium of national freedom”? He denied that “a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications.” Indeed, “the proposed system possesses no influence whatever upon the press,” and on this basis he argued that it was unnecessary to have an express guarantee of the freedom of the press.12 Not satisfied with the absence of a federal power over speech and the press, Americans in 1791 adopted the First Amendment. The freedom of speech and the press thus has a double security: both the absence of a federal power over speech and an express constitutional guarantee. Since then, however, in response to theologically and politically liberal fears, and eventually in response to allied progressive concerns, many have urged that the federal government has a power over speech to prevent antidemocratic or unequal participation in public debate. Many twentiethcentury liberals (as seen in parts II and III) have warned against the antidemocratic propaganda, influence, and power of churches, charities, and foundations and (together with progressives) have raised similar concerns about business corporations. Their point has been that the undemocratic internal authority of such organizations can threaten the independent thought of individuals, that the concentrated resources of such organizations can overwhelm other voices, and that, either way, such associations threaten the nation’s democracy.

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It is through these varied associations, however, that Americans acquire the resources, personal and economic, to contribute to public opinion and thereby keep it independent of government. As Tocqueville recognized, when individuals speak equally and only as individuals, they are utterly alone and weak before government, and government thus has the opportunity to control the public opinion by which it ordinarily would be controlled. Consequently, although there may be good reason to fear the speech of all sorts of particular associations, the speech of private associations remains essential for maintaining the independence of public opinion. Put another way, it would be very dangerous to conclude that the government has an interest in limiting the speech of the associations through which Americans can hold their government to account. In structural terms, as already suggested, Congress cannot safely have power over the mechanisms by which the people control it. Thus, just as the Constitution did not give Congress a power over campaigns and petitions, so it did not give Congress a power over speech, let alone political speech, and least of all political speech in politics. It is one thing for government to subsidize speech—although even this can easily become problematic—but it is quite another for the government to enjoy a power of limiting political speech. The First Amendment’s guarantee of speech rests on the assumption that the ends of society will be achieved through the absence of federal controls over political speech, not by manipulating the freedom of speech to allocate it in a way that suits the government’s vision of what and how much speech is valuable. It has been seen how incumbents repeatedly (in 1934, 1954, and 1987) responded to idealistic political challenges by imposing speech restrictions on idealistic associations. The history is thus a reminder of why government control over political speech is so dangerous. Narrowly Tailored? Section 501(c)(3) is far too sweeping to be narrowly tailored. It thus cannot be used as a mechanism for equalizing political speech or otherwise limiting political speech. Neither the ends nor the broad means are constitutional. If the government really wanted to secure equal opportunity in political speech, it could subsidize underrepresented speech rather than constrain the speech of idealistic groups. And even if it had a constitutional reason for limiting some political speech, this would not justify it in restricting idealistic organizations in all campaign speech and substantial speaking to

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influence legislation. Section 501(c)(3)’s restrictions are thus anything but narrow, let alone the least restrictive means.

Government’s Interest in Separating Church and State On behalf of section 501(c)(3)’s restrictions on ecclesiastical speech and petitioning, it often is said that the government has an interest in separating church and state. Put abstractly, the government justifies its suppression of speech by claiming that it must do this to protect another First Amendment right. Such a justification, however, is grounded in theological prejudice rather than the First Amendment, and even if it were based in the First Amendment, it would not legitimize section 501(c)(3)’s assault on other First Amendment rights.13 Theological Prejudice It is commonly assumed that the separation of church and state is a secular or merely rational principle, which developed in opposition to religion and religious influence. From this point of view, separation is a government interest, even if not one linked to any particular federal power. As has been seen, however, the idea of separation of church and state became popular in America as an expression of theologically liberal fears about group or “orthodox” religion, especially that of the Catholic Church. It has been more an expression of theological animosity than of areligious rationality, and it is therefore not a very convincing justification for section 501(c)(3)’s speech restrictions. The American religious groups that sought disestablishment in the 1770s and 1780s did not demand separation of church and state. Instead, they typically sought equal rights under law, regardless of religious differences, or sometimes, more radically, that there be no laws regarding religion. As a result, the religion clauses of the First Amendment did not guarantee “separation of church and state.” Indeed, the only verbal overlap between this phrase and the religion clauses is the word “of.” Nor was there much substantive overlap, for the phrasing of the Establishment Clause—that Congress make no law “respecting an establishment of religion”—carefully left open the possibility that Congress could make laws respecting religion, as long as they did not go so far as to concern an establishment of it. Theological liberalism transformed this religious liberty. Traditionally, the danger to religion and religious liberty seemed to come from government and its laws, which all too often elevated one religion and penalized

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the others. Hence, the First Amendment’s focus on government—in particular, the lawmaking power of Congress. From the theologically liberal point of view, however, the threat to religion and religious liberty came from organized religion. As explained in chapter 3, the fear was that the opinions of organized and especially hierarchical religious groups threatened the mental independence of individuals and thereby also threatened their “democratic” relationship to the state. It therefore seemed essential to separate church from state, even to the extent of limiting the political rights and speech of religious groups. Thomas Jefferson already demanded separation of church and state in order to suggest that the Congregationalist ministers of New England should not speak out against him and his politics. But what popularized the idea of separation was the theologically liberal stance taken by nativists against the Catholic Church. The Church had long seemed the very model of orthodoxy, and by appealing to theologically liberal anxieties about Catholicism, nativists could persuade even relatively orthodox Protestants to join the hue and cry for separation of church and state. From the Know Nothings in the nineteenth century to the Ku Klux Klan in the twentieth century, the theologically liberal fear of Catholicism drove the popularity of separation of church and state.14 Although the principle acquired popularity through anti-Catholicism, it could be more broadly antiecclesiastical, and this became particularly clear after World War II. Jefferson had already advocated separation on the basis of this more ecumenical theological animosity, and postwar theological liberals, including most of the Supreme Court and much of Congress, have similarly applied separation against the full range of religious organizations and even against any distinct religion. This more expansively prejudiced version of separation of church and state has become widely respectable, and it has been a major justification of section 501(c)(3)’s separation of religious organizations from politics. In short, notwithstanding that separation is often viewed as a rational exclusion of religion from politics, it actually has long been an aggressive expression of the theologically liberal vision of religious liberty. This is why it has reconfigured religious liberty to limit the freedom of churches—most saliently the Catholic Church and more generally all churches or distinct religions. The result has been discrimination. Separation targets not merely government, nor merely religion, but instead religious organizations and their orthodoxies. In other words, it takes aim at the institutions that theological liberals have long feared as the instruments of their theological opponents.

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At the same time, separation generally does not preclude individualistic spirituality. It thereby imposes a theologically liberal vision of religious political engagement, which leaves room for religious individuals to participate fully in political speech while limiting the political speech of distinct religious groups. In other words, as evident in section 501(c)(3), separation generally undermines one theological vision and establishes another.15 The principle of separation of church and state thus continues to live up to its long history of theological prejudice and discrimination. Rather than justify section 501(c)(3)’s restrictions, it should prompt all the more concern about them. Narrowly Tailored? Leaving aside the prejudiced and discriminatory character of separation of church and state, one might imagine that the government had an interest in a sanitized version of it, or at least in the rationality and secularism of political speech, and that this could justify the suppression of what the government considers irrational religious speech in politics. Yet even if this were a lawful government goal, it could not explain section 501(c)(3). Rather than suppress irrational or religious speech, section 501(c)(3) indiscriminately suppresses the campaign and lobbying speech of religious, educational, and charitable organizations. The initial difficulty is that the rationality or secularism excuse has no necessary connection with educational and charitable organizations. Although often religious, they are not necessarily religious, and rationalism and secularism are therefore odd justifications for broadly suppressing their speech. These are strange justifications, moreover, even for suppressing the speech of religious organizations, because much of their political speech is not distinctively religious. Especially in politics, many religious organizations make rational and even areligious arguments. Section 501(c)(3) thus is not at all narrowly tailored to the alleged government interests. Among individuals, it leaves room for much irrational religious speech, and among organizations, it suppresses much merely rational speech. And this brings the question back to the real nature of the separationof-church-and-state justification. Like separation, section 501(c)(3)’s application to religious organizations is not an expression of rationality or secularism in opposition to religion—although this would be unconstitutional enough. Instead, like separation, section 501(c)(3) targets the political speech of only some religion, organized religion, and this suggests that what is really at stake is not rationality but a type of theological animus.

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The cost of allowing theological animus to justify suppression becomes painfully apparent when one considers that one right (let alone a prejudiced vision of it) does not justify suppressing other rights. Even if the First Amendment really guaranteed the separation of church and state, and even if the government had a constitutional power to carry out the separation of church and state, the government’s protection of one First Amendment right cannot excuse it in severely abridging other First Amendment rights. Put in familiar doctrinal terms, section 501(c)(3)’s speech restrictions are anything but narrowly tailored or least restrictive means of achieving a constitutional end. The restrictions go far beyond separation of church and state, and even where they do carry out separation, this prejudiced and discriminatory principle is not an adequate justification for the suppression of speech and petitioning.

Applied to Professors There is no end to the supposed justifications for suppressing the speech of others, and no attempt will be made here to respond to all of the possible excuses. But one way of thinking about the justifications is to engage in a simple thought experiment: to apply something like section 501(c)(3) to other speakers—for example, professors. Professors are supposed to be devoted to academic pursuits, and one could easily take a narrow view of academic ends to justify a federally imposed separation of academia and politics. Of course, professors would remain free to espouse candidates and legislation when not identified as professors. But when speaking in their academic role—whether in class, in scholarship, or otherwise under any academic title—they would have to avoid any campaigning or substantial speech to influence legislation. This enforced separation of academia and politics would seem all the more reasonable because almost all professors benefit, directly or indirectly, from substantial federal spending on their students and universities. From this perspective, it would make sense to condition federal aid to students and universities on their professors’ severely limiting their political speech. Put another way, if professors were really dedicated to their academic role, they would not, as academics, engage in the forbidden political speech. And when they pursued such speech, this would be a sign that they were not really devoted to academic ends. Accordingly, when they thereby stepped outside their specialized academic role, it would be only just for the government to reconsider the eligibility of their institution and students for government aid.

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These speech limits would be easily defended on the ground that they would merely affect professors who campaigned or lobbied in their own voice. Under section 501(c)(3), although churches are limited in their own speech, they are free to persuade through other organizations or their influence on their members. Similarly, although professors would be limited in their classes and scholarship, they still would be able to persuade the larger world through their students, who are susceptible to professorial influence and thus might speak or petition in pursuit of the professorial message. In justification of the limits, the government would recite its compelling interests in protecting against the misuse of its subsidies, in protecting the political process, and in preserving the separation of university and state. The suppression would thus rest on several government interests. Such is the application of something like section 501(c)(3) to professors. And readers can create their own, even more ludicrous illustrations. The larger constitutional point is that the apparent reasons for suppression are plentiful, but none of them make the suppression constitutional.

( The arguments from government interests do not square with either the Constitution or the underlying realties. As a constitutional matter, the government has no lawful interest that can justify section 501(c)(3)’s restrictions, and these restrictions are far too sweeping to be narrowly tailored to any lawful interest. Theologically and culturally, section 501(c)(3)’s restrictions are even worse. They have long given effect to demands for a “democratic” consensus—in particular, demands that churches and other idealistic organizations should largely silence themselves in politics.

T W E LV E

Other Avenues for Speech

Notwithstanding so many clear violations of the First Amendment (and of procedural rights), and notwithstanding the poor justifications supplied by government interests, it is widely assumed that section 501(c)(3) could still be constitutional because idealistic organizations have other avenues for First Amendment activity. From this perspective, the suppression is acceptable because it leaves open more circuitous paths for speech. Such a justification would not ordinarily be accepted for restrictions on the First Amendment rights of individuals. Just imagine a law taxing individuals who refuse to assure the IRS that they will speak about elections and legislation only through government- compliant agents. Even if they were perfect agents, this would never be considered constitutional. But in the context of hints that idealistic organizations lack full First Amendment rights, the arguments about alternative paths of expression have enjoyed some traction. It is true that idealistic organizations can partly compensate for section 501(c)(3)’s suppression by speaking through other organizations, primarily those complying with sections 501(c)(4) and 527. But as will be seen in this chapter, these alternative paths do not constitutionally justify the suppression; nor as a practical matter do they adequately cure it.1

Not Narrowly Tailored The excuse that idealistic organizations can find alternative avenues for speech comes in three versions. Each has some initial appeal, but none of them allows one to conclude that section 501(c)(3)’s speech restrictions are narrowly tailored, let alone least restrictive. In one version of the alternative- avenues defense, it is suggested that

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idealistic organizations, even though they themselves are restricted in their speech and petitioning, can still speak and petition through section 501(c)(4) “social welfare” organizations. Even these organizations, however, are subject to limits on their campaigning and lobbying, for the IRS expects them to be primarily devoted to social welfare, and campaigning is not deemed to promote social welfare. Accordingly, when they pursue lobbying unrelated to their social welfare purpose, and most clearly when they campaign, they must be careful not to allow any such speech to become their primary activity, lest they lose their section 501(c)(4) status. Although the IRS has not adequately defined these limits on the speech of section 501(c)(4) organizations, the limits exist and affect the speech of such organizations. As put by Roger Colinvaux, even the “use of an affiliated section 501(c)(4) organization does not in fact allow for unfettered speech.”2 Thus, to enjoy greater freedom of speech in politics, an idealistic organization must go further. It first must comply with section 501(c)(3); it then must form a section 501(c)(4) organization; and it then must form a section 527 political action committee, which in turn is finally allowed to speak freely, at least in elections. As to lobbying, however, section 527 political action committees face the same indeterminate restriction as section 501(c) (4) “social welfare” organizations. To the extent a section 527 political action committee devotes itself primarily to something beyond what the IRS considers its social welfare purpose, the committee provides “no outlet for unlimited, unrelated lobbying activity.” Accordingly, notwithstanding that a section 527 political action committee offers an open avenue for campaigning, it remains subject, at least at the margins, to a vague limit on its speech regarding legislation.3 The result is a series of Russian dolls. The largest is muted, the middle one is slightly less muted, and only the tiniest is allowed freely to squeak out a message in politics—at least in campaigns, even if not so much in lobbying. In another version of the alternative-avenues justification, it is said that churches and other idealistic organizations can speak through their members. Thus, although a church cannot campaign or substantially attempt to influence legislation, its members can. But this approach treats church members as theological automatons who are subservient to its directives, rather than as independent individuals who choose how to participate in its communal life. Put generally, the First Amendment does not limit free speech to individuals, and individuals have a constitutional right to speak in unison—a right to organize so as to enjoy the satisfactions and strength of a united voice. The First Amendment, indeed, guarantees the rights of as-

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sembling and petitioning, and it thus protects the right of those who meet in their organizations to petition government. The voices of individual members therefore cannot be considered a substitute for the united voice of their organization. A further variant of these justifications is that churches and other idealistic organizations can speak through political parties. Certainly, some religious groups can ally themselves with political parties. But what of the smaller groups with relatively orthodox beliefs or other beliefs not aligned with politically popular views? Sometimes, they can work to protect their beliefs through political parties. Sometimes, however, they cannot rely on the parties, and in such circumstances, they need to work more narrowly through their own churches. None of these alternative-pathway defenses saves section 501(c)(3)’s speech restrictions from the constitutional requirement that restrictions on speech must be “narrowly tailored,” let alone the requirement that such restrictions must employ the “least restrictive” means. For example, if Congress really cared about how its money were spent, it could grant money to section 501(c)(3) organizations only for dedicated purposes. Moreover, if it wanted to ensure that the money would not be spent on politicking, it could place the money in dedicated bank accounts, subject to regular audits. And if Congress wanted to go even further in limiting the use of the money, it could refrain from giving its money to churches, schools, or charities and could insist on giving the money only to satellite organizations wholly dedicated to purposes desired by Congress. But instead of running its money through satellites, the government forces churches, schools, and charities to run their speech through satellites. Congress thus takes the most rather than the least restrictive approach.

The Freedom to Speak The First Amendment guarantees freedom of speech, and it thereby guarantees the freedom to speak. This may seem almost tautological, but nowadays, when defenders of section 501(c)(3)’s speech restrictions excuse them on the ground that there are alternative paths for speech, the freedom to speak requires emphasis. The tendency to forget that there is a freedom actually to speak can be observed in Regan v. Taxation with Representation. When the Supreme Court in this case upheld section 501(c)(3)’s lobbying restriction, the concurring justices (Blackmun, Brennan, and Marshall) defended this conclusion on

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the ground that a church or other affected organization can set up a satellite section 501(c)(4) organization to engage in the prohibited speech. In reaching this conclusion, these justices at least recognized that section 501(c)(3) imposes what ordinarily would be an unconstitutional condition. At the same time, they excused the restriction on the ground that the affected organizations enjoy freedom of speech through other entities. But the reasoning of the concurring justices misses the point. A church, school, or charity has a right to speak in its own voice.4 Fortunately, in 2010, in Citizens United v. Federal Election Commission, the Supreme Court recognized the underlying principle. An act of Congress barred corporations from engaging in electioneering speech, while permitting them to engage in such speech through political action committees, or PACs. The Court held this unconstitutional, explaining that “[a] PAC is a separate association from the corporation. So the PAC exemption from [the] expenditure ban . . . does not allow corporations to speak.”5 Similarly, section 501(c)(3) bars idealistic organizations from speaking. Churches, for example, have a constitutional right to speak as churches. Yet rather than speak for themselves, in their own voice, they are forced to speak like ventriloquists; they must keep their mouths closed and can at best project a muffled sound through a wooden dummy—a lifeless substitute for a living religious community. Churches therefore cannot speak in the same voice, even in the same body, about personal morality and about political morality. When speaking to God or to the people about moral questions, a church can speak in its own voice, but when speaking to the people about elections, or to Congress about legislation, it must speak through a contraption manufactured by the Internal Revenue Code. It is thus a mistake to emphasize the total amount of messaging from the points of view of idealistic organizations or otherwise to disparage their freedom to speak for themselves. The First Amendment does not guarantee any level of speech from any particular perspective, but instead guarantees freedom of speech, and this is a freedom to speak, regardless of the government’s evaluation that one’s point of view is adequately expressed by others. It is therefore not at all reassuring to be told that the total amount of messaging from the vantage point of idealistic organizations remains constant, for even if this were true, the idealistic organizations themselves are still severely restricted in their political speech. As put in chapter 1, imagine having one’s mouth taped shut and then being reassured that this is not very serious because equivalent words will come out your friend’s mouth. The words may be the same, but this is not the freedom to speak.

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A Poor Substitute The denial of the freedom to speak is all the more worrisome because speech through a related organization is a poor substitute. By working through alternative avenues, idealistic organizations can partly compensate for the loss of their constitutional freedom, but as a practical matter, the loss is difficult to overcome. One reason is that (as noted above) the speech of the satellites is restricted. The alternative avenues for speech are therefore far from free and are thus inadequate substitutes for the freedom of a church, school, or charity to speak as it wishes in its own voice, as guaranteed by the First Amendment. The IRS, moreover, bars section 501(c)(3) organizations from directly controlling, or even coordinating with, the other organizations. Accordingly, although a section 501(c)(3) organization can share personnel and websites with its subordinate organizations, it cannot actively shape the speech of these supposed mouthpieces. It can roughly align the messaging of its satellites with its own messages, but it cannot control their speech with much agility or refinement. It therefore cannot expect its satellites’ speech to be as effective as its own.6 Even if these difficulties could be overcome, there remains the problem of identity. When a church speaks and petitions, the church itself, as a congregation of individuals, makes a theological commitment and thereby exerts a theological and persuasive force that cannot be matched by speaking and petitioning through another body that is not the church. Similarly, a school or charity cannot express its identity and mission when it must use another organization as its mouthpiece. These idealistic associations are passionate participants in American society, but section 501(c)(3) reduces them to supporting actors, who must speak through others. Put another way, what matters is not only the substance of a message, but also the identity and authenticity of the speaker. Marshall McLuhan famously, if crudely, summarized that the medium is the message. From this point of view, it is fatuous to suggest that what a minister preaches, a congregation prays, and a church proclaims can find a real substitute in a press release by a political action committee. Of course, churches have the opportunity to coordinate with political parties, and have often done so, on both the left and the right, but this is further evidence of how churches can no longer engage in political contests in their own voice. During the civil rights movement of the 1960s, many churches directly participated in elections and substantial lobbying,

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but since then, the IRS has more vigorously enforced section 501(c)(3), and churches have had to work through the major political parties. Section 501(c)(3) affects not only idealistic organizations but also individuals within them. Most obviously, it bars a clergyman from speaking or even praying aloud in his church for the election of politicians, thus depriving him of his speech and prayer in his own pulpit on questions that have long been of profound theological concern. Equally, section 501(c)(3) prevents congregants from speaking out about elections and legislation when they, rather than their minister, speak for their church—for example, when jointly praying, singing, or witnessing. This suppression of individuals who associate in idealistic organizations has no remedy in satellite organizations. The extent of the loss becomes especially clear when one recognizes that individuals traditionally could use idealistic organizations to bring a personal sense of participation and energy into the larger political sphere. Idealistic organizations are little polities, with their own small-scale political life. Individuals once could participate in this lesser political life in ways that were both deeply personal and very communal, and through their organizations, they could bring their joint voices to bear in the larger society with a strong sense of their combined energy and direct personal participation. The tax code, however, largely cuts off this pathway for popular participation and in its place merely allows idealistic organizations to convey their messages through IRS-compliant committees. These committees can be configured to permit membership participation, but they lend themselves to messaging controlled by an organization’s leadership. The tax code thereby tends to impede much idealistic popular participation. Put concretely in terms already suggested, a memorandum issued by a committee of church leaders cannot be as vigorous and personally empowering as the harmonized voices of the congregation itself. Thus, for many reasons, the speech of adjunct organizations is an utterly inadequate substitute for the speech of idealistic organizations and their members. Whereas the one sort of speech sounds staged, the other is the living voice of those who participate.

Discrimination and Breadth Ultimately, even if one thinks the alternative avenues for speech are reasonable substitutes, and even if one cares more about the total messaging from

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idealistic organizations than about their constitutional freedom actually to speak, one still must worry about section 501(c)(3)’s breadth and discrimination. These are problems that the alternative paths cannot cure. As a result of the alternative pathways, one may suppose that section 501(c)(3) has only moderate effects on the messaging of most idealistic associations. But even if this were true, the section broadly diminishes the effectiveness of the total communication of all such organizations. It has been seen that their satellites cannot speak entirely freely, let alone with the authenticity and identity of the central organization, and that in limiting the ability of section 501(c)(3) organizations to control their satellites, the law interferes with the spontaneity and agility of their messaging. The law thereby affects how and how strongly all such organizations, as a whole, contribute to political contests, and the existence of alternative avenues for speech does not avoid these broad consequences for public debate. In addition, section 501(c)(3) discriminates against the poor and some of the orthodox. The orthodox have already been mentioned, but what about the poor? Although the details must await chapter 16, it already should be noted that the cost of forming a section 501(c)(3) organization can be very burdensome for many small churches, schools, and charities, and the additional cost of forming a section 501(c)(4) organization and a section 527 political action committee only adds to the difficulty. To be sure, the law often burdens Americans with compliance costs that favor the wealthy and put the poor at a disadvantage. The First Amendment, however, guarantees the freedom of speech, including political speech. The government should therefore not be able to excuse its unconstitutional constraints on political speech by offering alternative pathways that are prohibitively expensive for many of the poor. In sum, even if one cares more about the overall range of speech than about the constitutional freedom to speak, the suppression is sobering. It is much less dangerous than what is common in foreign tyrannies, and it is not as personally harsh or as focused on particular opinions as the Alien and Sedition Acts and McCarthyism. Still, it is very disappointing when evaluated under the U.S. Constitution.

( Section 501(c)(3)’s speech restrictions find no excuse in the ability of a church, school, or charity to set up a parallel section 501(c)(4) organization or section 527 political action committee. Even with these alternative avenues for campaigning and lobbying, the speech restrictions are not narrowly

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tailored. Nor do they preserve the right of idealistic organizations to speak in their own voices. In fact, the alternative avenues are poor substitutes, and the speech restrictions discriminate and broadly tamp down political speech. Far from being reassuring, it is deeply problematic that idealistic organizations must communicate through other organizations, for this confirms the degree to which the idealistic organizations themselves are suppressed.

THIRTEEN

Not Only Exemptions but Also Deductions

Part III’s constitutional analysis has thus far focused on section 501(c)(3)’s restrictions on exemptions. Now it is necessary to turn to section 170’s application of such restrictions to deductions. Section 170(c) piggybacks on section 501(c)(3)’s lobbying restriction and repeats its campaigning restriction, and in both ways it is unconstitutional. Section 170 allows taxpayers who contribute to section 501(c)(3) organizations to deduct the amount of their contributions from their income. This deductibility for donors has a direct subsidizing effect for donors, and an indirect subsidizing effect for idealistic organizations, and because section 170 thus involves what functions as a subsidy, it is widely assumed that there cannot be anything constitutionally wrong with the section’s speech restrictions. The subsidy, however, is only the beginning of the inquiry. Even if deductions are merely subsidies, section 170’s restrictions are unconstitutional conditions and, moreover, an establishment of religion.

Conditions in Violation of the Rights of Speech, Petitioning, and Free Exercise The government can place a wide range of conditions on its grant of benefits, and such conditions usually are beyond constitutional objection. But there are some limits in the doctrine of unconstitutional conditions, and although these limits are relatively tolerant of government conditions, they clearly bar section 170’s overly ambitious conditions on speech, petitioning, and religion. Most basically (as explained in chapter 8), the consent of a private organization cannot enlarge the government’s constitutional power. For example, the consent of an idealistic organization cannot give the government

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a power over speech, petitioning, or religion that the First Amendment denies to the government. Thus, even though section 170 merely places conditions on its grant of deductibility, the consent of the organizations receiving the deductible gifts cannot give the government any power to prohibit the free exercise of religion or to abridge the freedom of speech or petitioning. No matter how large the subsidy, the government cannot buy itself a power that the First Amendment denies it. The Supreme Court analyzes such problems (as also examined in chapter 8) by inquiring whether the government’s conditions are proportionate and germane to its spending—this being a means of understanding when the conditions cross over into being constraints. On this basis, it becomes clear that section 170(c)’s restrictions are utterly disproportionate and irrelevant to section 170’s grant of deduction. This point is sufficiently similar to the arguments in chapter 8 that the reasoning need only be summarized here. It is grossly disproportionate and not germane to use deductions for donors as a means of suppressing all campaigning and any substantial lobbying by recipient organizations. It is especially problematic when one considers that a subsidy to profit-making donors is being used to restrict the political speech of idealistic organizations. This is exactly the sort of exaggerated leverage that reveals constraint and an unconstitutional condition. The problem is all the worse because the government does not distinguish among idealistic organizations or among their different types of political speech. For one thing, many such organizations campaign and lobby with money that does not come from private donors or that otherwise has not been deductible. Many, for example, have assets acquired in the eighteenth and nineteenth centuries, long before deductions became available; they also have assets derived from their own income; and their use of any such assets for campaigning and lobbying has nothing to do with the subsidizing effect of deductions. Second, much campaigning and lobbying by idealistic organizations—as when a minister endorses a candidate from the pulpit or members of an organization petition their representatives in Congress—involves almost no expenditure at all, and it therefore does not have any substantive connection to deductions. Third, organizations must give up campaigning and substantial lobbying even when they receive only negligible donations and thus have little subsidy from section 170’s grant of deductibility. It therefore is difficult to avoid the conclusion that the conditions on deductibility go far beyond what could possibly be germane and proportionate. Subsidies to donors cannot justify the blanket suppression of idealistic organizations.

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Conditions on Indirect Beneficiaries Adding to this conventional analysis of unconstitutional conditions is the unusual character of section 170’s subsidy. It already has been seen (as to exemptions in chapter 8), that constitutional analysis cannot always follow economic analysis in equating tax benefits with subsidies. And this point becomes all the more interesting as to deductions, because section 170 only indirectly subsidizes idealistic organizations. Section 170’s speech restrictions do not fall into the usual conception of conditions, in which the government is said to be using conditions to define what it gets from the subsidized person or seller. Instead, section 170 subsidizes donors, subject to conditions, and these conditions persuade the donors to increase their subsidies to idealistic organizations—but only to those that restrict their speech. Section 170, in short, subsidizes one type of party in a way designed to control the speech of others, and thus both the subsidy to the controlled organizations and the restrictions on them are indirect. None of this is to question that idealistic organizations are indirect beneficiaries of the subsidy to their donors, or that the subsidizing effect is enormous. But section 170 does not fit the prototypical pattern of constitutional conditions on subsidies. And it is worrisome that the government is subsidizing some to act in a way that pressures others into giving up their political speech. If conditions can be used at this scale to restrict the speech of indirectly subsidized persons, then it is difficult to understand who in the United States cannot have their speech controlled in this way. The unconstitutionality of the conditions thus comes with an extra layer of concern. The indirect subsidization does not legitimize the speech restrictions but rather makes them all the more troubling.

Direct Violation of Establishment Clause In addition to being unconstitutional conditions, section 170(c)’s speech restrictions directly violate the Establishment Clause. This clause (as noted in chapter 9) centrally bars subsidies and other privileges that establish churches, and section 170(c) therefore directly violates it without reference to the doctrine of unconstitutional conditions. Section 170’s deduction substantially subsidizes persons who give to churches, and it thereby also indirectly aids churches. For many churches, the section 170 deduction matters more than the section 501 exemption, because gifts generally are not income, and churches often rely more on

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donations than on income from their assets. As it happens, many churches are only moderately concerned even about section 170 deductions, as most small contributions are not actually deducted. Nonetheless, section 170’s financial benefit to churches is immense. Although it is difficult to calculate, it runs into billions of dollars, and this is more than enough to prompt an inquiry as to whether the deductions constitute an establishment of religion. In general, deductibility for contributions to churches is not an establishment. The usual explanation is that section 170 also allows deductions for gifts to secular organizations—primarily those that are educational and charitable. In other words, even if the Establishment Clause is understood to bar laws granting benefits specifically to churches, there is no such favoring here because the benefit for churches is combined with benefits for entities not defined in religious terms. This, however, inadequately captures why deductibility for gifts to churches is not an establishment of religion. More persuasively, although the law benefits churches, it does so merely as part of its general grant of benefits to nonprofits, and the mere fact that it mentions churches among other nonprofits does not make it an establishment of religion. But that is not the end of the matter, because section 170 not merely offers deductibility but does so in a way that discriminates along lines arising directly from theology. To be precise, through its restrictions, section 170 subsidizes churches that conform to the government’s theologically liberal vision of appropriate ecclesiastical speech. The restrictions thereby establish some churches over others—indeed, one type of theology over another— and this discrimination among theologies collides with the Establishment Clause. Section 170 thus unconstitutionally subsidizes a government-approved sort of religion. The subsidy alone is not unconstitutional. But a religious organization can receive deductible donations only if it complies with the government’s theologically liberal speech restrictions, and this condition makes the subsidy discriminatory along theological lines, which is a serious violation of the Establishment Clause.

Government Interest in Deductions In considering the government interests that might justify the speech restrictions, one must take very seriously the danger that section 170’s deduction could create a conduit for tax-deductible political contributions. The deductions authorized by section 170 (unlike the associated exemptions) really are tax expenditures, and although they are most immediately for the benefit

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of the donors, they are also indirectly for the benefit of the recipient 501(c) (3) organizations. Accordingly, Congress may be justified in limiting the political use of the benefit thus conferred. But is this what Congress is doing when it allows deductions only for donations made to organizations that comply with section 501(c)(3)’s restrictions? Is Congress really limiting the political use of the benefit conferred by the deduction? If this were Congress’s real concern, it could have adopted a much less restrictive approach. Rather than sweepingly bar section 501(c)(3) organizations from engaging in electoral politics or substantially in lobbying, Congress could simply deny deductibility for donations that end up being used in campaigns or attempts to influence legislation. The mechanics would not be difficult. Basically, the law would delay deductibility until a donor could show that his donation was not used for the restricted end or at least would not be so used. He could do this by producing an accounting or certification from the recipient organization about how the money was used or about its placement in a restricted and audited fund. And where the organization could not provide such paperwork, donors would not be able to deduct their donations from their income. This would fully preclude the political misuse of the benefit conveyed through deductions. And by focusing on deductions for donors, it would avoid the unconstitutionality of threatening the speech, petitioning, and religious rights of idealistic organizations. Congress, however, has not addressed the narrow problem of deductions with a solution that concentrates on donors. On the contrary, it uses the narrow deduction issue to justify the broad suppression of idealistic associations. The government, moreover, created the deduction problem. It thus is mere bootstrapping for it to claim that this problem justifies it in broadly barring idealistic organizations from much political speech. Already when Senator Reed introduced the 1934 restriction on propaganda to influence legislation—a restriction on both exemption and deductibility—he feared (as seen in chapter 4) that the restriction on deductions went far beyond preventing their misuse. When drafting the restriction, the Finance Committee had aimed to prevent the abuse of deductible contributions. As recalled by one of Reed’s fellow senators, the committee aimed to deny deductibility to “any organization that is receiving contributions, the proceeds of which are to be used for propaganda purposes or to try to influence legislation.” Reed agreed that this was “what we were trying to do,” but he worried that because of the “great difficulty in phrasing the amendment,” the committee’s draftsmen had gone “much further than the committee in-

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tended to go.” Thus, even when the restriction was proposed, its main proponent feared that it went “much further” than the government’s interest in preventing the abuse of deductible donations.1 Underlying the congressional debates were the popular anxieties about churches and other idealistic organizations and how they used “propaganda” to “influence” legislation. Although the proposed restriction went further than necessary to address concerns about the misuse of deductions, it perfectly matched the deeper anxieties. It therefore is no surprise that Congress ultimately did not care that the restriction was not narrowly tailored. The political misuse of deductions is a real problem, but the suppression of speech is not a lawful solution. The deduction problem arises from deductions for donors, and it therefore cannot justify restricting the First Amendment rights of the recipient organizations. Accordingly, when section 170(c) goes beyond the deductibility of contributions by donors and targets the speech of idealistic organizations, it cannot be considered narrowly tailored to the government’s interest in blocking the political use of the deduction subsidies. On the contrary, section 170(c)’s restrictions can be explained only in terms of other, less constitutional ends.

Administrative Licensing of Speech and Churches and the Danger of Wholesale Suppression The danger of licensing under section 501(c)(3), which was discussed in chapter 10, is equally a threat under section 170. Whether in recognizing exempt status or deductibilty, the IRS licenses churches and other idealistic organizations and thereby also licenses their political speech. On appeal to the courts, moreover, the IRS gets much deference to its interpretations of law and its findings of fact. All of this, as detailed in chapter 10, is a flagrant violation of the Constitution’s free exercise of religion, its freedom of speech, and its due process of law. More generally, this licensing is part of a broad shift in government control of speech from retail to wholesale suppression. Under laws such as the Alien and Sedition Acts, the government had to prosecute for particular words in particular proceedings before judges and juries in court, and it thus had to prove its charges in a retail manner, case by case. Now, however, under sections 501(c)(3) and 170(c), the government need not prove anything to any judge or jury when it suppresses the campaign and lobbying speech of churches and other idealistic organizations. Instead, these organizations must persuade the IRS that they will adequately suppress themselves. This reversal of burdens, which inevitably comes with licensing, spares the gov-

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ernment the burden of retail arguments in court, thereby enabling it to suppress speakers and speech wholesale.

( The speech restrictions in section 170(c) are just as unconstitutional as those in section 501(c)(3). Of course, section 170(c)’s restrictions are not direct constraints. Nonetheless, they are unconstitutional conditions, and as to churches, they create an establishment of religion. Undoubtedly, the government has an interest in preventing section 170 deductions from becoming tax-exempt political contributions, but it can avoid this danger with narrowly tailored restrictions—with restrictions that limit the deductions for donors rather than the political speech of idealistic organizations. Section 170 thus does not escape this book’s constitutional critique of section 501(c)(3). Although this book focuses on the suppression that comes with exemptions, its arguments also apply to the associated suppression that comes with deductions.

FOURTEEN

Distortions of Constitutional Doctrine

Part III must draw to a close by turning from the constitutional inquiry to a secondary question: If section 501(c)(3)’s restrictions are grossly unconstitutional, how have they endured unscathed for more than half a century? It will be seen that the suppression has been upheld only with repeated distortions of constitutional doctrines. These deformations are revealing. At the least they confirm the need to reevaluate the constitutionality of section 501(c)(3)’s speech restrictions. In addition, they suggest the role of prejudice. The very fears and prejudices that produced section 501(c)(3)’s restrictions apparently also left commentators and judges blind to the constitutional problems, and even led them, unselfconsciously, to bend the law in the same direction as the suppression. The liberal anxieties and prejudices that underlay the unconstitutional restrictions have thus also protected them. Not for the first time, this book must emphasize that it is not alleging deliberate or self-conscious prejudice. Obviously, some proponents of the speech restrictions were especially prejudiced, but even they did not typically consider themselves biased. On the contrary, men such as Imperial Wizard Hiram Evans called themselves “liberals,” and they took seriously the danger that they might be infringing the First Amendment rights of their fellow citizens—although, naturally, they found ways to get over such qualms. On the whole, a lack of self-consciousness about liberal prejudice seems to have been endemic among all sorts of Americans, including many judges, and this sort of blindness explains why so many individuals who generally abhorred prejudice nonetheless failed to recognize it in themselves or others.

Distortions of Constitutional Doctrine / 257

Intolerance and Blindness The underlying problem was a combination of intolerance and blindness. To the extent liberal anxieties led not only to intolerance but also to blindness, it was difficult for a relatively liberal majority to recognize its suppression of speech. Liberal Intolerance To liberals, the relatively orthodox have long appeared intolerant on account of their attachments to theological authority and all that seemed to follow from this, including their moral certitude and their apparent censoriousness. Theological liberals, however, often shared some of these traits—at least much of the certitude and censoriousness. And as liberals in the nineteenth and twentieth centuries became more numerous, many grew all the more dogmatic. Confident in their beliefs, and zealous in advocating them, liberals could be at least as overbearing as any other Americans in their expectations of conformity and their revulsion against dissent. Eighteenth-century Americans who felt stung by the intolerance of those who were more liberal already protested—as did a Kentuckian in 1787— that “the liberal” tended to take a “supercilious air” with all “who presume to contradict them.” Similarly, Congregationalists in the 1820s complained that the “reign of misnamed liberal opinions” had subjected them to “bitterness and invective” and that some of their Unitarian opponents were “under the influence of a highly excited feeling of anger.” At midcentury, when many Protestants took a theologically liberal nativist stance against Catholics, Rabbi Isaac Wise—himself a theological liberal—worried about their “fanaticism” and remarked: “The liberality of the Protestant churches is something unknown and strange.”1 Liberals often recognized that such complaints had merit. A prominent nativist Unitarian, the Reverend Henry W. Bellows, counseled in 1855 against “vindictiveness on our part.” Similarly, in the 1870s, when members of the National Liberal League regularly inveighed against the intolerance of Christianity, they worried about their own reputation for censoriousness. “Liberals are the last class of people that should be bigoted.” Yet liberals felt the need to remind themselves of this: “Above all things, let a spirit of liberality toward the opinions of others be duly exercised. Let a proper respect for the views of our fellows be generously maintained.” It was “neither possible nor desirable that all should arrive at the same conclusions—that all should think alike as to all theological, scientific and philosophical subjects.” There-

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fore, “Above all things, let liberals not become bigots, and demand that others shall think precisely as they do.”2 In the next century, when liberals were a theological and cultural majority, it was all the more important for them to caution themselves against their own intolerance. Klansmen and other nativists, on account of their liberal stance against Catholicism, were particularly apt to be charged with bigotry, and many of them acknowledged the danger, but usually only to repudiate it. A 1924 nativist tract defended its demand that the Church keep its religion out of politics: “This, so far from being bigotry, is opposed to bigotry and is essential to religious freedom.” In fact, “ ‘Bigotry,’ so-called, sprang into being in America with the discovery that a powerful religious body in our midst had become a political party working to undermine and control the secular life of the nation.” Three decades later, this sort of line remained familiar—as when the Kansas area committee of the Methodist Church (which supported Protestant and Other Americans United) declared: “We decry anything that smacks of rabid anti–Roman Catholic attitude, but we feel the necessity for opposing the anti-Protestant bias which so frequently protects and projects itself through fraudulent charges of our ‘intolerance’ and ‘bigotry,’ and which brands Protestantism as error and heresy.” The same year, with rare self-knowledge, the New Age cautioned that “[o]ur dislike and fear of these disruptive forces should not, however, be permitted to become an obsession.”3 Blindness With the intolerance came much blindness. And whether described harshly as hypocrisy or more softly as a failure to see the inconsistencies, it left room for section 501(c)(3)’s suppression. During the twentieth century, the leading commentators on freedom of speech tended to be theo-political liberals, and they typically had nothing, absolutely nothing, to say about section 501(c)(3)’s speech restrictions. In his 1941 book, Free Speech in the United States, Zechariah Chafee explored the full range of mid-twentieth-century threats to freedom of speech, including relatively remote dangers, and in his 1956 book, The Blessings of Liberty, he condemned the attacks on the free speech of communists; but in neither book (even when discussing the use of taxation to control speech) did he say anything about section 501(c)(3)’s assault on speech. Similarly, Norman Dorsen’s 1968 volume, Frontiers of Civil Liberties, declaimed at length about First Amendment issues such as “Censorship of ‘Foreign Communist Propaganda,’ ” “Military Censorship,” “Blacklisting,” “Academic Freedom,”

Distortions of Constitutional Doctrine / 259

“Demonstrations and Sit-Ins,” and “Separation of Church and State” but said nothing about the use of the tax code to stifle the political speech of idealistic organizations. When Thomas Everson in 1970 published A System of Freedom of Expression, he criticized laws requiring lobbyists to register and the New York law that required citizens in tax- exempt educational organizations to take a loyalty oath. He made no complaint, however, about the conditions on federal tax exemption that required almost all American churches, schools, and charities to silence themselves in campaigning and substantially in lobbying.4 The ACLU was no better. It worried about the establishment problems with tax exemptions, but not because of section 501(c)(3)’s restrictions, and even when discussing free speech, it did not complain about them. For example, the ACLU in its annual reports protested against constraints on the importation of foreign “propaganda,” primarily from communist nations, without saying anything about the suppression of domestic “propaganda” from churches, schools, and charities. As for domestic speech, the ACLU objected to demands for “limits on speech and propaganda in the interest of democratic progress and tolerance,” but its main concern in the 1950s was to protect against narrowly anticommunist suppression, and it was utterly quiet about section 501(c)(3)’s more ecumenical democratic suppression of speech and propaganda. The ACLU opposed “private” as well as public censorship and repeatedly cried “censorship” when clergy urged media boycotts or pressured libraries to remove books, but again it remained silent about the use of the tax code to censor the speech of churches, schools, and charities. The result was strange. Government barriers to importing foreign communist “propaganda” were “censorship,” and even private speech that sought private or government measures against obscenity was “censorship”; but overt government suppression of the “propaganda” and other political speech of idealistic organizations merited no discussion at all.5 Across the spectrum of liberal opinion, it was easy enough to condemn the intolerance of Catholics and anticommunists, but few liberals recognized their own intolerance. An exception was the distinguished liberal theologian George Coe, whose final post was at Teachers College. Although he viewed the Catholic Church as the “greatest master of propaganda in all history,” he was sufficiently open-minded to understand that “[m]any educationists who are strenuously opposed to propaganda in the schools on behalf of special interests approve, nevertheless, propaganda on behalf of what they regard as the public good.” This sort of inconsistency was also commonplace as to section 501(c)(3), and although it may not have been hypocrisy, it certainly was a sort of blindness.6

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Liberal Visions of Danger An underlying explanation of this blindness can be found in the shifting liberal visions of the danger to liberty. Whereas liberal fears once, in the eighteenth century, centered primarily on government, they increasingly have focused more on private organizations and their speech. The general liberal sentiments of the eighteenth century typically offered a critique of governmental oppression. In the nineteenth century, however, theological and nativist concerns broadened liberal anxieties to include the threat from churches and other private associations. From this perspective, as seen in chapter 3, many twentieth- century Americans feared religious and other idealistic associations as threats to individuals and their democracy and concluded that such associations therefore need to be separated or segregated from politics. From this perspective, Americans often failed to see the danger to First Amendment rights from section 501(c)(3) and, instead, perceived this section as necessary to protect democracy. The blame, of course, does not rest solely on ideas. Underlying the shifting direction of liberalism was the political reality that liberals increasingly found themselves in a majority, and as they felt their popular power, they upheld their ideals in terms of democracy and condemned what they feared as undemocratic. Liberalism thus became an avenue for individualistic and majoritarian anxieties, and it unabashedly took aim at organizations devoted to relatively orthodox minority sentiments. Even deeper than this majoritarian stance was the sociological reality of individuation. As Americans came to feel individuated, they resented the claims of authority made by their churches, and they embraced liberal fears about how individual freedom and the nation’s democracy were threatened by organizations that asserted authority or spoke dogmatically or censoriously. On the basis of such fears, it seemed necessary to keep churches and other idealistic organizations out of politics, and restrictions on their speech, far from seeming unconstitutional, appeared well justified.

Supreme Court Unfortunately, Supreme Court justices, like so many other Americans, have been blind to the danger of suppression through the tax code. Liberal anxieties and animosities have been so pervasive that they have not only resulted in section 501(c)(3)’s suppression, but they have also left the justices unable to see it. Indeed, liberal worries and prejudices have bent constitutional doctrine and its application in the same direction as section 501(c)(3), with

Distortions of Constitutional Doctrine / 261

the result that the restrictions on speech have seemed consistent with the Constitution. At the outset, even before digging into evidence from cases, the role of prejudice is suggested by the anomalous character of the suppression. The exclusion of speech from politics as imposed by section 501(c)(3) is a departure from American constitutional ideals of freedom of speech. As a historical matter (observed in chapter 2), churches and idealistic organizations traditionally were vocal, even central participants in American political debates. As a constitutional matter, the First Amendment guarantees the rights of speech, petitioning, and religion. The suppression is thus a radical deviation from American traditions and ideals, and it is therefore necessary to ask what can explain the judiciary’s acceptance of it. The strange break from what might be expected suggests the possibility of underlying prejudice. Supreme Court and Liberal Anxieties Like philosophers, Supreme Court justices are often studied as if they stand above their societal context. This assumption, however, is improbable. It should therefore be no surprise that many justices have felt some of the liberal anxieties that were nearly pervasive among their contemporaries. There was at least an anti- Catholic tone to many of the Supreme Court’s post–World War II opinions on religious liberty. At times the antiCatholicism was difficult to miss. Hugo Black, for example, complained in 1968 in Board of Education v. Allen that some religious faiths in America were “bitterly hostile to and completely intolerant of the others.” Echoing the sort of language used by the Klan three decades earlier, when he was one of its favorite sons, he explained: “The same powerful sectarian religious propagandists who have succeeded in securing passage of the present law to help religious schools carry on their sectarian religious purposes can and doubtless will continue their propaganda, looking toward complete domination and supremacy of their particular brand of religion.”7 The expression of more ecumenically liberal prejudices in First Amendment doctrine may seem less offensive, but it has been no less blatant—as can be illustrated by the Court’s complaints about orthodoxies. Understanding an establishment of religion in terms of orthodoxy, Justice Jackson said, in 1943, in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their

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faith therein.” Taking this further, William O. Douglas associated “orthodoxy” with “intolerance for new or different approaches” and declared: “The democratic way of life rejects standardized thought. It rejects orthodoxy.”8 Similarly, the liberal concern about divisiveness (as noted by Richard Garnett) has been a salient judicial theme. Writing in 1971 in Lemon v. Kurtzman—a case on aid to mostly Catholic private schools—Chief Justice Burger declared: “Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect,” and the “potential divisiveness of such conflict is a threat to the normal political process.” Similarly, Justice Breyer wrote that the religion clauses of the First Amendment “seek to avoid that divisiveness based on religion that promotes social conflict,” and on this basis he interpreted the Establishment Clause to bar a public monument that “might well encourage disputes” and “thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.” Justice Stevens even spoke of the government’s “obligation to avoid divisiveness and exclusion in the religious sphere.”9 “Orthodoxy” and “divisiveness” were theologically liberal code words. And by using these terms to interpret the Constitution’s religious liberty, the Court gave a decidedly liberal spin to this freedom. That theologically liberal attitudes affected doctrine is confirmed by the Court’s treatment of religious exemptions. The justices were mostly theological liberals, who were highly sensitive to anything that might intrude on individual religious belief, and correspondingly insensitive to the First Amendment rights of churches, especially the Catholic Church. And these liberal sensibilities had consequences. The First Amendment states about religion that “Congress shall make no law . . . prohibiting the free exercise thereof.” It thereby assumes that whenever a law prohibits the free exercise of religion, Congress had no authority in the first place to make the law. This is revealing about exemption claims, because in such claims it is assumed that a law prohibiting the free exercise of religion can be void as to the persons with religious objections and yet otherwise constitutional. The First Amendment’s text, in contrast, assumes that such a law is always void ab initio. Nonetheless, in 1963, in Sherbert v. Verner, the justices began a threedecade-long experiment in exempting individuals with religious objections from general laws. The justices thereby expanded the constitutional protection for religious individuals, without clear foundations in the Constitu-

Distortions of Constitutional Doctrine / 263

tion’s history and contrary to its text. Tellingly, they applied this new doctrine mostly to protect members of radically Protestant sects—as in Sherbert v. Verner and Wisconsin v. Yoder—not Catholics, Mormons, or orthodox Jews. Put another way, those who asserted a free exercise right against law in accord with their individual conscience were more likely to prevail than those who asserted such a right in accord with their duty as understood by their organized religious authorities.10 Thus, even among the justices, the danger of religiously slanted perceptions is a familiar problem. It should therefore not be unexpected in the Supreme Court’s approach to section 501(c)(3). Supreme Court and Section 501(c)(3) In analyzing section 501(c)(3), the Supreme Court has departed from its usual constitutional doctrines. Again and again, the Court has reached conclusions that are difficult to explain except in terms of theologically liberal assumptions. Already in Sherbert v. Verner, the Supreme Court strained to avoid the conflict between section 501(c)(3) and the free exercise of religion. In the course of its opinion, the Court declared that the “door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such,” but when it then specified what this meant, it ended its enumeration by saying that the government could not “employ the taxing power to inhibit the dissemination of particular religious views.” By emphasizing “particular religious views,” the Court stepped back from any conflict between the Free Exercise Clause and section 501(c)(3)’s speech restrictions, but it did so only by suggesting that it would accept the use of the taxing power to inhibit the dissemination of religious views in general. Obviously, the First Amendment does not narrowly protect only “particular religious views.” It could have been written merely to secure the “free exercise of a religion”—as if religion in general did not need protection. With good reason, however, the First Amendment was drafted more expansively to protect the “free exercise of religion”—regardless of whether a particular religion or religion generally. In order to excuse section 501(c)(3), however, the Court backed away from this breadth and thereby grossly misstated the First Amendment.11 When the Court in Regan v. Taxation with Representation concluded that section 501(c)(3)’s exemption was a subsidy, which could be subjected to the lobbying condition, it was again distorting doctrine. Chapter 8 has already shown the theologically prejudiced history of the subsidy vision of

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section 501(c)(3)’s exemptions. It also has shown that the application of tax expenditure theory to these exemptions was actually rejected by the theory as expounded by Stanley Surrey and the Joint Committee on Taxation. In contrast, many theologically liberal opponents of the Catholic Church had long insisted that tax exemption for churches was a subsidy, and over the course of the twentieth century, they gradually made headway, until in 1983 in Regan the Supreme Court agreed. In other words, anti-Catholic liberals popularized a prejudiced application of tax expenditure theory—an application that the theory itself actually precludes—and after this prejudiced application of the theory was popularized, the Court accepted it as a justification for the suppression. This is not to say that the judges in Regan all were liberals in a narrowly ideological sense. On the contrary, the opinion was written by Justice Rehnquist for a unanimous Court. But in the last half of the twentieth century, most of the justices were theologically liberal or at least had absorbed culturally liberal assumptions, and they thus appear to have been unselfconsciously open to the theologically liberal misapplication of the tax expenditure theory.12 The Supreme Court once knew better. When California conditioned its tax exemption for nonprofits on a loyalty declaration—a condition that troubled many liberals—the Supreme Court (as noted in chapters 6 and 10) responded in 1954, in Speiser v. Randall, by holding the condition unconstitutional. It observed that “a discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech.” This, it thought, “cannot be gainsaid.” It added: “To deny an exemption to claimants who engage in certain forms of speech is, in effect, to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mistaken in their argument that, because a tax exemption is a ‘privilege’ or ‘bounty,’ its denial may not infringe speech.” But three decades later, when examining section 501(c)(3)’s lobbying restriction—a restriction that satisfied liberals—the Court concluded in Regan that it was merely a lawful condition on a subsidy.13 The selectivity of the application of the subsidy analysis becomes further apparent from a comparison with religious exemption cases. It has been seen that the Supreme Court was sensitive enough to the religious liberty of individuals that it often treated the free exercise of religion as a right of religious exemption from law, and in taking this position, it even protected individuals from religiously burdensome conditions on government benefits. For example, in 1963 in Sherbert v. Verner, a Seventh-Day Adventist was denied unemployment compensation because she refused to accept a job

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that would have required her to work on Saturdays, and the Court held that the denial of the benefit was unconstitutional. Thus, even a condition on what was clearly a mere benefit could violate the First Amendment. In Regan, however, when the Court still was following Sherbert, it upheld section 501(c)(3)—a law muffling speech in politics at the cost of being taxed—on the theory that the suppression was only a condition on a government subsidy. For religious individuals, the Court prominently recognized the danger from conditions on benefits, but when it came to churches—even when the alleged conditions were really direct constraints—the Court did not see the danger. Along with this strained application of ideas of subsidy came the notion that section 501(c)(3)’s limitations on speech are merely voluntary. Nativists and other liberals had long been simultaneously attached to the freedom of speech and yet anxious to keep antidemocratic speech out of politics. Many of them resolved this dilemma by asking the Catholic Church, or even all churches, to restrict themselves voluntarily. When Charles C. Marshall in 1928 sought “another step forward in the final adjustment of the relation of the doctrine and dogma of the Church of Rome to the political principles of the modern world,” he asked the Church to “voluntarily re- define its claims . . . so that the government in the modern state by the consent of the governed shall no longer be challenged at vital moral points by a government in the Pope.” Similarly, Waldo Beach in 1954 did not simply say that the law should punish churches that lobbied for positions outside the liberal consensus; instead, he more carefully suggested (as already observed in chapter 7) that such a church “should be restrained, if it will not restrain itself.” Four years later, John Bennett urged that churches and their leaders “should be self-restrained.” And this vision of self-restraint persisted in Rawls’s political philosophy. Along the way, the Supreme Court agreed that section 501(c)(3)’s restrictions are merely consensual conditions on a subsidy. It is therefore not too much to wonder about the continuity between nativist-derived liberal ideas and the Supreme Court’s conclusion that section 501(c)(3)’s restrictions rest on mere consent, not force.14 Not only the Court, but also commentators have bent doctrine—most prominently, the germaneness and proportionality tests for unconstitutional conditions. As seen in chapter 9, even if section 501(c)(3)’s restrictions are merely conditions, they are neither germane nor proportionate. The Supreme Court in Regan did not recognize this, and on the Court’s behalf, one must note that it had not at that time fully developed its doctrines on germaneness and proportionality. Since then, however, although these doctrines have become standard, most commentators on section 501(c)(3)

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have either ignored them or have applied them without recognizing how little room they leave for the section’s sweeping suppression. Similarly, when commentators consider the possibility that section 501(c)(3) directly taxes political speech, they often apply the doctrine on compelling government interests without seriously considering whether the government’s means are narrowly tailored and least restrictive. Although section 501(c)(3)’s speech restrictions reach much further than is necessary for the government’s lawful purposes, its restrictions are said to be lawful. These slanted approaches to doctrine and its application are disquieting. They raise a question as to whether the liberal anxieties and prejudices that led to section 501(c)(3)’s restrictions also distorted constitutional law.

( The danger from section 501(c)(3) should have been clear all along. Both its words and its context offered sufficient warning. The judges, however, did not see the suppression, and they distorted constitutional doctrines in ways that tended to excuse it. This was not their intent. But anxieties and prejudices that are pervasive enough to result in statutory suppression can also affect judicial decisions. Being imbued with the same sort of concerns that underlay the speech restrictions, the judges were blind to the danger and perceived the Constitution in ways that were aligned with the very problem it should have prevented.

FIFTEEN

Rights of Associators and Associations

Accompanying section 501(c)(3) have been suggestions that associations do not have the same First Amendment rights as individuals. Put crudely, it is said that “corporations are not persons.” More subtly, the hint is that some associations, including section 501(c)(3) organizations, have diminished First Amendment rights because they are not individuals. The argument is a sort of confession and avoidance, admitting the suppression but justifying it with a claim that the First Amendment does not fully protect the suppressed organizations. Underlying this argument is the liberal fear of groups and their orthodoxies—a fear that their speech threatens the personal judgment of individuals and even the nation’s “democracy.” The First Amendment, however, does not discriminate among speakers. It fully protects individuals who associate and their associations.

Rights of Associated Individuals The dispute over section 501(c)(3) is often presented in terms of the constitutional rights of organizations, but before one gets to that issue, there is a more basic point about the constitutional rights of individuals. Individuals do not lose their rights by associating with other individuals. Put another way, when organizations are suppressed, so are individuals. Accordingly, even if corporations and other organizations were not persons for purposes of the law, the individuals who associate through them can jointly exercise their constitutional rights. The liberal fear of groups and their orthodoxies thus conflicts with the constitutional rights not only of associations but also, more basically, of individuals who join together in associations.

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Associations of Individuals At the outset, it should be recognized that “organizations” are associations of individuals. This may sound like a minor point, but it is central. The liberal fear of associations is often framed as a fear of “corporations” or “organizations”—the implication being that these are not conjoined individuals, nor the instruments of individuals, but rather are different from them, even alien and threatening to them, and thus undeserving of First Amendment rights. Almost all organizations, however, are associations or combinations of individuals, who join together for shared ends, selfish or idealistic. Even corporations are associations of individuals, the only difference being that they choose a corporate form, as established by statute. To emphasize this associational character of organizations, this chapter often refers to organizations as “associations.” The immediate point is that organizations are composed of individuals, who have their own First Amendment rights.1 Forms of Association The law recognizes many different forms of association, and in attributing different rights to different forms, it may be thought that the government, in contrast to individuals, establishes the associations. For example, state governments issue charters of incorporation to business corporations and attribute limited liability to the shareholders. And because the charters and limited liability cannot be obtained without state intervention, business corporations are sometimes assumed to be distinctively creations of the states, not of individuals. The forms and additional rights of associations, however, do not alter the reality that associations are typically composed of individuals who associate in them and who retain their freedom as individuals to exercise their constitutional rights. In their associations, they exercise their constitutional rights not merely alone but jointly, and even when state law grants them additional statutory rights (such as limited liability), they remain individuals with constitutional rights and can chose to exercise their rights in unison. It is therefore necessary to confront the question about the First Amendment rights enjoyed by individuals who join together with other individuals in an association. Can the government deny them their First Amendment rights as individuals because they have chosen to exercise these rights in conjunction with others? An individual does not lose his Second Amendment rights by shooting

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with others; he does not give up his Fourth Amendment right to be secure in his papers when he coauthors the papers; nor does he sacrifice his Seventh Amendment right to trial by jury when he brings a case with other plaintiffs. Similarly, individuals who join together in associations, including corporations, do not thereby give up their freedoms of speech, religion, and petitioning. Cooperation with others does not entail a sacrifice of First Amendment freedoms. Of course, joint action, even when employing constitutionally protected means, can have consequences. For example, if one coauthors a book and one’s coauthor writes a chapter that infringes copyright, one may suffer the consequences. But simply acting jointly in the exercise of a constitutional right should not require a sacrifice of the right. The ideal that individuals do not lose their constitutional rights when they act jointly—for example, in a corporation—is hardly novel. It was once recognized as a constitutional principle. In the early years of the Republic, federal courts faced the problem of figuring out when they could exercise “diversity” jurisdiction over corporations. Under the Constitution, federal courts could have jurisdiction over “controversies . . . between Citizens of different States,” and these cases sometimes involved corporations. There was no dispute that corporations were persons, who enjoyed rights, including the right to sue and be sued; but it was not evident to early federal judges that corporations were citizens. The judges solved the problem by assuming that, when a corporation sued in federal court, the shareholders were the real parties, notwithstanding that they were “suing in their corporate character, by their corporate name, for a corporate right.” Although aspects of this doctrine were rather artificial, it prominently recognized the important point that corporations are associations of individuals. Of particular interest here, it led the Supreme Court to expound the principle that individuals do not give up their constitutional rights when they incorporate. The question arose in 1809, in Bank of the United States v. Deveaux. Speaking for the Court, Chief Justice John Marshall held that individuals who incorporate, and thereby secure the benefit of suing in the corporate name, do not thereby suffer a diminution of their constitutional rights. In his words, “Aliens or citizens of different states” cannot “be supposed to be less the objects of constitutional provision, because they are allowed to sue by a corporate name.”2 The rule in Deveaux eventually came under pressure as a guide to diversity jurisdiction, for such jurisdiction required complete diversity among parties, and corporations increasingly had shareholders from multiple states. A ver-

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sion of the rule, however, persisted until it was displaced by a federal statute in 1958. And even after Congress altered the rule in diversity jurisdiction, the Court has never abandoned the underlying constitutional principle. Accordingly, although Deveaux is not current law on diversity jurisdiction, it remains a powerful reminder of the more basic constitutional point that when individuals incorporate, they cannot therefore “be supposed to be less the objects of constitutional provision.”3 Individuals do not sacrifice their constitutional rights merely by enjoying them in conjunction with others. Even if speech, religion, and petitioning were merely individual rights, this would not mean that individuals could be denied their speech when they coordinated or otherwise harmonized their voices. The freedom of speech—like that of religion or petitioning— allows individuals to follow their own tune, whether they sing alone or in unison.

Rights of Associations, Especially Corporations Quite apart from the constitutional rights of individuals who associate, their associations can be distinct persons, with their own claims to constitutional rights. Corporations have been singled out for particularly strong challenges to their status as persons. Of all associations, however, corporations have the strongest claim to be persons at law and thus to enjoy constitutional rights undiminished by their form. Corporations It is commonplace to disparage the First Amendment rights of corporations on the ground that they are not persons. From this point of view, corporations have little constitutional ground for complaint against section 501(c)(3). At least for purposes of law, however, including for purposes of constitutional rights, corporations are persons. An initial awkwardness is to understand exactly what is meant when it is said that corporations are not persons and thus do not have First Amendment rights. All corporations have a wide array of legal rights, and even commentators who protest that corporations are not persons for purposes of the First Amendment are quick to acknowledge that incorporated newspapers and other media organizations have free speech and that incorporated churches have religious liberty. The argument against corporate speech rights therefore cannot be understood as broadly as it often is stated. In-

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stead, the point seems to be that some corporations have diminished First Amendment rights. All corporations, however, are persons, both for purposes of legal duties and for purposes of legal rights. Traditionally, only entities that were recognized as persons at law could sue and be sued. Thus, already in England, and similarly in America, one of the key advantages of incorporation was to allow a group to become a legal person.4 In eighteenth-century America, the groups that worried most about incorporation were churches. Some churches, notably some Baptist churches in Virginia, refused to incorporate, on the ground that incorporation would render them a creation of government—as if Christ’s kingdom could be established by civil authority. Many other churches, however, sought incorporation and viewed it as an essential means of preserving their property rights and thus their religious liberty.5 a The suggestion that incorporated bodies lack the speech, petitioning, or religious rights enjoyed by other persons is therefore rather odd. One of the main reasons for incorporation (whether of businesses or churches) was for the association itself, not just its members, to enjoy the rights of persons. Therefore the claim that corporations are not persons with rights turns the history on its head. Of course, as has been seen from Chief Justice Marshall’s opinion in Deveaux, federal courts long exercised diversity jurisdiction over corporations on the assumption that corporations could also be viewed as associations of shareholders, but this is hardly to say that corporations were not understood as persons. On the contrary, as put in 1795 by Zephaniah Swift—soon to be chief justice of Connecticut—corporations were considered a “collection of individuals combined into a single capacity.” A corporation thus enjoyed the legal status of an individual to “sue, or be sued” in its “corporate name,” and to “do all other acts as natural persons may.” Both in reality and in law, although individuals associate in corporations and retain their consti-

a. The dangers of a lack of incorporation were considerable. William Tennant—an eighteenthcentury Presbyterian dissenter in Anglican South Carolina—explained: “[T]he law, by incorporating the one Church, enables it to hold estates, and to sue for rights; the law does not enable the others to hold any religious property, not even the pittances which are bestowed by the hand of charity for their support. No dissenting Church can hold or sue for their own property at common law. They are obliged therefore to deposit it in the hands of trustees, to be held by them as their own private property, and to lie at their mercy. The consequence of this is, that too often their funds for the support of religious worship, get into bad hands, and become either alienated from their proper use, or must be recovered at the expense of a suit in chancery.”*

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tutional rights, their corporations also enjoy the rights of persons, including the rights of speech, religion, and petitioning.6 Unincorporated Associations The suggestion that corporations are not persons, or that they otherwise have diminished First Amendment rights, becomes all the more sobering when one considers the implications for unincorporated associations. If incorporated associations can be denied their First Amendment rights, what will be the fate of unincorporated associations? Incorporated groups are at least formally recognized as legal persons. In contrast, unincorporated groups lack this formal recognition of their personhood. Accordingly, if it is accepted that corporations are not persons, or otherwise have only reduced First Amendment rights, will unincorporated churches, block associations, schools, and businesses be even less secure than corporations in their First Amendment freedoms? The invidious argument that corporations lack the full rights of persons has especially serious implications for unincorporated bodies. No Speaker Discrimination in the First Amendment Ultimately, the debate about the First Amendment rights of corporations and other organizations is misplaced because the First Amendment does not confine its guarantee of speech, religion, or petitioning to individuals. There is a tendency to think of the enumeration of rights as a series of protections for individuals, and the Supreme Court has, in fact, limited a few rights to individuals. The enumeration of rights, however, was framed as a series of limitations on the power of government. After the Constitution sketched out government power with the broad brushstrokes of enumerated powers, it then penciled in more detailed limits with the enumerated rights. And because these rights are limits on government, they typically do not confine their freedom to individuals. By their nature, some rights, such as the guarantee of habeas corpus, protect only individuals or natural persons. Most rights, however, are not naturally confined to individuals, and therefore appear to be generally available. The closest the Constitution comes to restricting rights to individuals is when it protects citizens. It secures the “privileges and immunities” of “[c]itizens” of the states, and the “privileges or immunities” of “citizens” of the United States. Even (for the sake of argument) if it is conceded that these provisions refer merely to individuals, they do not confine privileges

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and immunities simply to individuals, for the category of citizens excludes many individuals. In this sense, the category of citizens is narrower than that of individuals.7 In guaranteeing some rights, the Constitution mentions “persons” and “the people,” but it is difficult to understand such persons or the people as narrowly restricted to individuals. The Fourth and Fifth Amendments protect pretrial and procedural rights of persons, but they do not thereby restrict such rights to individuals. Corporations had long enjoyed such rights in England and America, and when businesses were denied such rights by eighteenth-century English excise statutes, the statutes were widely denounced as unconstitutional. It therefore is no surprise that, when Congress in the 1790s imposed an excise on distilled spirits, it carefully protected the pretrial and procedural rights of all distillers, without distinguishing individuals and corporations.8 Similarly, the First Amendment protects rights without excluding organizations. Of particular importance here, it says nothing in its guarantees of speech and religion about who can enjoy them, and it thereby avoids any phrasing that might draw distinctions among those who can claim such rights. This should be no surprise. Those who engaged in political speech in the eighteenth century included all sorts of organizations. Congress at the time received petitions from a wide range of organizations, not merely from individuals. Similarly, the myriad Americans who engaged in the free exercise of religion included churches and church organizations. Indeed, the protections for religious liberty in state constitutions and in the U.S. Bill of Rights were the culmination of decades of assembling, advocating, and petitioning—activities that came not only from individuals but also from congregations and other religious institutions. Americans would have been astonished to learn that speech, petitioning, and religion were only partly rights for some associations. These freedoms, in their entirety, belonged to all, not merely individuals.9 And to return to the initial point, this is exactly what one would expect from a constitutional provision designed to limit government. In some philosophical accounts, rights are logically derived from the nature of individuals. The Constitution, however, was designed not merely to protect individuals but more broadly to limit government, and for this purpose, its protections for rights generally had to avoid creating distinctions among those who could claim them. In structural terms, the enumerated rights were understood by Madison and his contemporaries as “exceptions” to the enumerated powers. The Constitution granted the government enumerated powers, without distinguish-

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ing between the government’s power over individuals and its power over organizations. Therefore, when the Constitution carved out rights from the powers, it similarly did not distinguish between individuals and organizations. To limit government effectively, the exceptions from power had to do more than merely protect individuals; they also (as much as possible) had to protect all persons subject to government power.10 There remain, to be sure, other questions. For example, the legal system protects only the rights of persons, and only persons can have standing to sue. The First Amendment, however, does not impose any additional requirement of personhood (let alone individual identity) in its guarantees of speech, religion, and petitioning. The First Amendment thus did not limit its protection to individuals, and section 501(c)(3) cannot be excused by any such narrow reading of the amendment. The organizations restricted by that section have full First Amendment rights as much as any individual.

Liberal Fears and Prejudice In light of the Constitution’s careful nondiscrimination between individuals and organizations, or among organizations, how did Americans come to think that some corporations and other organizations lacked, or had diminished interests in, some constitutional rights? The answer, as by now should be clear, lies substantially in liberal anxieties and prejudices. Anxieties and Prejudices Although the Constitution, having been adopted in the eighteenth century, did not embrace liberal anxieties about the danger from group opinion or speech, Americans increasingly would feel such fears, and this would have constitutional consequences. Whether in response to religious or economic organizations, liberal anxieties gradually shaped First Amendment doctrine. Theologically liberal fears have been a source of deep prejudice. The model or prototypical target of such fears has always been the Catholic Church, and the fears of Catholicism became the opening wedge of respectability for a more broadly antiecclesiastical reframing of religious liberty and speech rights. There have also been liberal economic anxieties about business corporations and monopolies. These fears, and their relationship to the religious fears (as noted in chapter 3), appeared already in James Madison’s 1820 Detached Memoranda, in which he passionately worried about religious

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and business organizations in a manner not seen in his eighteenth-century writings. Such anxieties were also soon felt by Jacksonians and eventually by progressives. These various fears, economic and theo- political, have resulted in discrimination. In response to liberal fears, the law differentiates among Americans, allowing them different degrees of speech and religious liberty, depending on whether, how, and why they are organized. For example, the law differentiates business associations and idealistic associations and places distinctive limits on the speech of the idealistic groups. Not immune to the liberal anxieties, many judges and lawyers have interpreted the Constitution to allow liberal restrictions. As observed most recently in chapter 14, the Supreme Court has followed theologically liberal assumptions and has thereby justified section 501(c)(3)’s speech restrictions. More broadly, many judges and lawyers have interpreted the First Amendment’s religious liberty in terms of “separation of church and state”—a theopolitical slogan—that distinguishes between group religion and individual spirituality and that thereby discriminates against the former. The effect of these developments has been to weaken the First Amendment rights of idealistic organizations and the minorities that depend on these associations. The Danger of an Individualistic Conception of First Amendment Rights The attempt to reconfigure First Amendment freedoms as individual rights has sharply narrowed access to them. Although the individualistic understanding of First Amendment freedoms is not quite a legal doctrine, the repeated incantation that such rights are individual interests has had the effect of undermining the claims of nonindividuals to enjoy such rights. Put more sociologically, individualistic suspicions of organizations have narrowed access to First Amendment rights—most dramatically, by justifying attempts to deny such rights to the associations that provoke the anxieties of an individuated majority. This is especially worrisome because, as Tocqueville recognized, there is reason to fear that, in an egalitarian society, individual speech is inadequate for limiting government. Instead, what typically allows a people to preserve independent public opinion—the sort that can limit government—is their capacity to engage in free-ranging public persuasion through their associations. It is therefore no reassurance to be told that individuals still can speak freely as individuals. If they cannot speak freely through their associations in the political sphere, public opinion will be more open to being influ-

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enced by government, thus diminishing its potential to hold government to account.

( Liberal anxieties not only animated section 501(c)(3)’s restrictions on the speech of idealistic associations but also, more generally, delegitimized associations and their First Amendment rights. This amendment, however, guarantees the rights of speech, petitioning, and religion without confining them to individuals. These rights belong to all, regardless of whether they are individuals or associations, and regardless of their form of association.

SIXTEEN

Fractions of Persons and Rights

Section 501(c)(3) creates divisions among organizations. Roughly speaking, it sorts them generally into two categories—idealistic organizations and business organizations—and allows them different degrees of speaking in politics. It thus is illustrative of a broader forced specialization in rights—a fractioning of persons and rights—that threatens the liberty both of idealistic organizations and of individuals. At the risk of being repetitive, it must be added that most of this forced fractioning of persons and rights was not the result of any conspiracy or other planned design. Instead, it arose from the circumstances in which Americans increasingly felt their individuation and resented idealistic groups and their moralizing demands. Just as liberal-progressive fears led to limits on the political speech of business organizations, so too individualistic liberal fears prompted even more severe limits on the political speech of idealistic associations. In other words, underlying fractured speech rights are the social circumstances in which Americans have taken a divided view of themselves and their society.

Idealistic Organizations Idealistic organizations—most profoundly, churches—could once often find allies in business organizations. They could share religious goals (for example, about education or the moral conduct of business), and they could pursue these ends together in politics. Now, however, idealistic organizations cannot engage in central modes of political participation, and they therefore have little political strength to offer potential allies in the business world. Most businesses are not centrally concerned with religious or moral

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goals, and it has therefore always been difficult enough for idealistic organizations to form alliances with business organizations. But where there were overlapping goals, it could be advantageous for the businesses to work with the idealistic organizations, as both types of organization could equally engage in political speech and petitioning, and businesses could amplify a shared message by joining with the idealistic organizations. As a result of section 501(c)(3), however, businesses now have much greater freedom of political speech than idealistic organizations. For example, business corporations may not coordinate or consult with a candidate or campaign when making expenditures for speech to influence federal elections; nonetheless, they can still “independently” spend on campaign speech and can still publish and otherwise speak to influence legislation. This is not to say that the law as a whole treats either idealistic or business organizations better—a complicated question that lies beyond the scope of this book. And it is not to deny that idealistic organizations seem to have an advantage in exemption and more certainly through deductibility. But when it comes to the First Amendment problem, idealistic organizations are clearly subject to much more sweeping restrictions on their political speech. Thus, at least as to speech restrictions, idealistic organizations are at a disadvantage, and this weakens their ability to form alliances. Even when business organizations share religious or moral ends with idealistic organizations, they have little to gain by seeking them out as allies. Of course, there are prominent exceptions—as when businesses create their own captured idealistic organizations or solicit the prestige and persuasive power of universities. But on the whole, although idealistic businesses often make charitable donations to idealistic organizations, they typically cannot view the latter as useful political allies because of section 501(c)(3)’s speech restrictions. Idealistic organizations—especially those with beliefs not aligned with popular opinion—thereby find themselves isolated, cut off from other types of organizations that once might have joined them in their religious or moral struggles. The idealistic organizations are therefore much weakened. They have lost not only much of their freedom of political speech but also many of their allies in the business world. Idealistic organizations cannot even get much business support for their constitutional rights of petitioning and political speech. After decades of separate regulatory schemes for idealistic and business organizations, these bodies have different interests in speech and petitioning, and they are not apt to campaign together for their speech rights.

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Idealistic organizations are thus at a disadvantage. Having lost their full freedom in the political sphere, they have also lost much of their power in this realm, and they therefore cannot count on the support of their potential business allies.

Individuals Similarly, religious individuals are weakened. At least some of them are dependent on their idealistic organizations to express their beliefs in politics and to protect their beliefs from burdensome legislation, and section 501(c)(3) weakens this avenue for political participation. Churches, for example, offer the easiest and most effective paths for individuals to espouse and secure protection for their religious beliefs, as churches are where individuals regularly meet with coreligionists. Section 501(c)(3), however, cuts off this avenue for campaigning and affecting legislation, thus leaving individuals without the strength of the organization in which they unite with their fellow believers. In church, they can petition God but not substantially Congress; they can be among the elect, but they cannot speak about the election of legislators. Obviously, not all religious Americans are equally dependent on their churches for political expression and protection of their opinions, and thus not all religious Americans are seriously affected by section 501(c)(3)’s barriers to ecclesiastical speech in the political process. Yet the unequal burden on different religious Americans only heightens the discriminatory effect. Individuals who hold religious views aligned with popular political opinion have less to lose when they cannot participate equally in the political process. For example, those who have a theologically liberal understanding of religious authority often hold views aligned with popular opinion and can therefore usually participate in the political process along many avenues other than through their religious organizations. These individuals therefore do not typically feel the pinch. Other individuals, however, are more likely to be dependent on their religious organizations to pursue and protect their views through the political process. Individuals that have a relatively “orthodox” approach to religious authority, and whose religious beliefs deviate from popular political opinion, can be especially dependent on their religious organizations in the political sphere. Being singularly reliant on their churches for espousing their distinctive beliefs and for protecting them from burdensome legislation, they are singularly vulnerable under section 501(c)(3).

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Fractions of Persons and Rights Section 501(c)(3)’s differentiation among organizations is part of a broader array of divisions of persons, which forces them into specialized roles, or narrow aspects of themselves, with access to rights only along the lines of the government-imposed specialization. Put another way, section 501(c)(3) and other such constraints reduce persons to fractions of themselves, with fractions of their rights. The U.S. Constitution, however, leaves no room for fractions of persons and fractions of rights. Forced Specialization It often is suggested that associations of one sort or another are not fully persons and thus do not have complete First Amendment rights. For example, in defense of speech constraints on business associations, it is said that they are only partially persons, with only partial First Amendment rights. Similarly, in defense of section 501(c)(3)’s restrictions, it is assumed that idealistic organizations, being associations rather than individuals, are not fully persons and so can be denied full speech rights. But it is unclear how this strange reduction of persons and rights to fractions of themselves is different from a violation of their constitutional rights. There is little pretense that associations of individuals are not persons. Nor is there much pretense, at least among lawyers, that corporations are not persons, as one of the most basic reasons for incorporation is to secure the legal status and rights of a natural person, including the right to sue and be sued. Nonetheless, there have increasingly been suggestions that when individuals work together in associations, they and their organizations enjoy only specialized rights, in line with the specialized organizational purposes recognized by the government. On this basis, it often is said that individuals in business enjoy the freedoms of speech and religion but that business associations have less of an interest in these rights (the assumption being that such associations have diminished speech or religious interests) unless they are media businesses, in which case their specialization in speech gives them full speech rights.a Similarly, it is said that religious individuals enjoy a. For example, the Massachusetts statute held unconstitutional in First National Bank of Boston v. Bellotti barred business corporations from making contributions or expenditures “for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation.” The statute thus allowed such corporations to campaign only as to their business interests, as if their

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the right to petition and the right of political speech but that when they join together in religious associations, they lose central aspects of these rights— as if churches had reduced political interests. This slicing and dicing of persons and rights suggests that business organizations need to put aside their religious commitments and (more centrally here) that idealistic organizations need to limit their engagement in key types of political speech, whether campaigning or influencing legislation. When such organizations fail to confine themselves in these ways, they are assumed to be going beyond their specialized identities. In the one instance they are no longer really business organizations, and in the other instance they are no longer really religious, educational, or charitable organizations.1 This specialization is exactly what one would expect when the government and ultimately the people seek to free themselves from constraining ideals. Americans, Tocqueville noted, can find strength in campaigning, persuading, and otherwise shaping public opinion only by associating with others. Most Americans, however, including most members of Congress, do not like being judged by the highest of ideals, and it is therefore no surprise that Congress has treated political speech as if it were beyond the specialized purposes of religious and other idealistic organizations. Fractions of Rights The forced specialization deprives associations of aspects of their freedom that the government deems incompatible with their specialized roles. Specialized associations are thus left with only fractions of their constitutional rights. The message for business organizations is strange. They enjoy constitutional rights in holding property and in freedom of speech. If they wish, moreover, they can adopt religious ideals and policies. But because they are profit-making enterprises—because they have a selfish end—they cannot have equal religious rights. The message for idealistic organizations is no less disjointed. Like busispecialized business focus left them only a specialized business interest in speech and thus only a specialized fraction of the constitutional right. Although the Supreme Court held the statute in Bellotti unconstitutional, the specialized vision of speech has not gone away. Justice Brennan, for example, speaking for the Supreme Court in FEC v. Massachusetts Citizens for Life, distinguished between constitutional election spending limits on business corporations, which are “organized for economic gain,” and unconstitutional limits on nonprofit political corporations that are established to “disseminate political ideas, not to amass capital.”*

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nesses, they have constitutional rights in holding property. If they wish, moreover, they can engage in unrelated business activities and pay taxes on the income. But because they are nonprofit enterprises—because they are idealistic—they lose central political rights. This is particularly striking with regard to churches. They have the First Amendment’s freedom of religion, but in exercising this right, they must give up much of the amendment’s freedom of speech. They have a right to petition God, but in exercising this right, they lose most of their right to petition government. They can enjoy only fractions of their rights. The results are comic. Individuals and their associations can speak to and about God, and they also can speak to and about government. And ambidextrous individuals can devote themselves to both types of expression—both the religious and the political. But woe betide individuals when they associate to do both—when they join together to devote themselves to petitioning, or speaking about, both God and Congress! That’s punishable. Then they have to substantially give up on addressing, or talking about, either God or government, or pay a tax for the privilege of directing their words to or about both. The very same constitutional amendment guarantees freedom as to religion, speaking, and petitioning. It says nothing about giving up one right if you exercise too much of the others. Nonetheless, current law requires Americans who associate for religious ends to specialize in the exercise of their rights. It requires them to confine their exercise of religion, speech, and petitioning to religious ends, meaning religious ends that do not include political ends. And if Americans who associate for religious ends fail to specialize in this way, they are taxed for exercising their full rights of speech and petitioning—indeed, they are taxed precisely because they are religious organizations—the result being a violation of all three of these First Amendment rights. The result is a constitutional magic trick. You can enjoy the First Amendment rights of speech, petitioning, and religion. But if you mix these rights together . . . drumroll. . . . Voila! . . . All three constitutional rights disappear! The full extent of this trick—the loss of all three types of First Amendment rights—gets played only on religious Americans who associate together in a church. The trick, moreover, has severe costs only for some churches—probably only for some with orthodox notions of ecclesiastical authority and others whose views are not aligned with popular opinion. And these religious groups are typically so stunned, they don’t quite know what has happened to them. In contrast, many nonreligious or theologically liberal Americans find the magic trick admirable and applaud.

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Fractions of Persons All of this treats religious associations as less than full persons—this being the underlying justification for according them less than full rights. Traditionally, when religious associations were regarded as whole persons, with full constitutional rights, many of them devoted a very substantial part of their energies to petitioning Congress and campaigning for and against legislators—most notably, in the struggle against slavery. Now, however, section 501(c)(3) bars them from engaging in any campaigning and from devoting any substantial part of their activity to speaking or petitioning to affect legislation. And this has an ugly precedent. Whereas the Constitution once counted slaves as three- fifths of persons for purposes of apportionment, section 501(c)(3) now counts idealistic associations as nonpersons for electioneering speech and as only some fraction of persons for purposes of legislative speech and petitioning. The point (as already discussed in chapter 9) is not that churches, schools, and charities are being treated like slaves; far from it. Rather, the point is conceptual: that the Constitution does not allocate rights or recognize persons in fractions, for that would be a way of justifying a sweeping denial of rights. Whereas unfree societies have identified fractions of persons in order to give them only fractions of rights, common-law societies distinguish simply between the free and the unfree, thus precluding any intermediate status. In such a society, a body either is entirely a person with rights or is not; there cannot be a portion of a person. Thus, once a body has the status of a person, the law cannot deprive that body of any constitutional right or any portion of a constitutional right. Indeed, it traditionally was a fundamental legal doctrine in the United States that persons, whether individuals or corporations, could not be stripped of their rights as persons. The furthest the law went in allowing such a deprivation of rights was to concede that an act of naturalization or a charter of incorporation could bar an individual or corporation from specified rights, but even this exception probably did not survive the adoption of the Fourteenth Amendment. Certainly, once an individual or corporation was acknowledged as a person under American law, the government could not chip away at its right to the full range of constitutional liberty.b b. The traditional American approach to corporations was that a corporation enjoyed the same constitutional rights as any other person, without limitation, unless the limitation was stated in its charter of incorporation. Of course, a corporation could not take advantage of habeas corpus and other rights that by their nature could be exercised only by individuals, but it generally seems to have been taken for granted that a state could not impose any limitation

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Thus, although the U.S. Constitution distinguishes persons and citizens, it does not (any longer) deal in portions of them. Of particular significance here, the First Amendment secures rights of speech, petitioning, and religion without distinguishing between individuals and associations. It thus does not allow the government to deny portions of such rights to some types of associations, let alone on the theory that they are not fully persons. If the federal government could get away with this excuse, it would be able to eviscerate constitutional rights and abandon one of the Constitution’s central liberal principles, that there are no fractions of persons or of constitutional rights. The Organic Quality of Life and Freedom There commonly are complaints about the selfish character of American business life and the loss of ideals in politics. But this should not be altogether surprising when the government questions the religious rights of business corporations and the speech rights of churches and other idealistic associations. Even specialized associations have broader unspecialized interests, and their freedom as whole persons to exercise the full range of their constitutional rights is essential for the entire society. When associations are treated as fractions of persons, with only specialized fractions of constitutional rights, they cannot easily engage in American society as whole persons, with the full range of human and civic interests. As a result, Americans often have little choice but to pursue their joint enon a corporation’s enjoyment of constitutional rights, unless the state stipulated the limitation already in the corporation’s charter. The fundamental character of the underlying principle is evident from its application to individual citizens. For example, in 1785, the justices of the Massachusetts Supreme Judicial Court concluded that, under the Privileges and Immunities Clause of the Articles of Confederation, a state “act of naturalization, may admit an alien to certain privileges, and exclude him from others”—meaning that “he may be naturalized under some particular disabilities”—“but if no such proviso is made,” and thus “no condition expressly annexed to the privilege granted,” then “ex vi termini [by force of the term] a person naturalized, is a free citizen to all intents constructions and purposes whatever.” Such persons, “from any class or denomination of aliens, are by the Confederation, considered as entitled to all the privileges, and immunities of free citizens in the several States; and of course in this commonwealth whenever they shall come to reside within the same.” Nowadays, even initial conditions limiting the constitutional rights of naturalized aliens are probably unconstitutional. But the point here is more modest, that once a body achieves the status of person or citizen, the government cannot limit the constitutional rights that come with this status. Incidentally, it may be thought that, at least for corporations, mortmain statutes were an exception. Other than in Pennsylvania, however, these sorts of general limitations on corporations do not appear to have been adopted in the early American states.*

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deavors, whether in business or idealistic associations, along narrow lines, defined by single interests, rather than with a full range of interests—as if a church had less of an interest in political speech than a political association, and as if a business had less of an interest in religion than a church. Of course, associations are limited by their fiduciary and contractual duties, but that is not the question here. A specialized business association will have narrow duties to its shareholders, but this does not mean it is without broader interests; and even more emphatically, although a church may be exclusively devoted to God, this does not mean it is without wide-ranging duties to the entire society. Such things are for God and private Americans to decide, not government. Associations thus do not naturally fall into the specialized categories imposed by Congress and the IRS. Instead, individuals form associations for their own purposes, and such associations often take their own paths, which can be fluid—narrowing or expanding according to the desires of those who associate. The government’s forced specialization of rights thus cuts up the organic or whole quality of life. When the government pressures individuals to associate along the lines of single interests, it divides their general interest in their lives and their community into narrow slices, which therefore tend to be pursued single-mindedly in associations, often at the cost of other interests, without being evaluated as part of life as a whole. It is therefore no small matter that the government, contrary to the Constitution, imposes specialized identities on organizations and restricts them to specialized claims of constitutional rights. In thereby reducing them to fractions of persons with only fractions of their rights, it prevents them from participating in society on the basis of their interests in it as a whole.

Equality as a Structural Protection for Rights Equality is a key structural protection for liberty, for it allows Americans to feel a shared interest in protecting their rights. Section 501(c)(3), however, together with the constitutional doctrines legitimizing it, imposes constraints on speech, petitioning, and religion that unequally burden idealistic organizations. The result is to divide Americans, leaving them without the shared interest in First Amendment rights that is so valuable for the preservation of such rights.

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The Structural Protection An equality in rights is an essential structural protection for rights and other forms of liberty. It allows all Americans and all of their associations to share an interest in protecting the full extent of each other’s rights, thus securing the broadest possible societal commitment to such rights. For example, the freedom of speech was once understood as an equal limit on government, and thus as the same freedom, regardless of the speaker. As a result, all Americans and all American organizations had a shared interest in preserving the freedom of speech. Of course, some did not entirely support this freedom, and some—for example, because of racial prejudice—had difficulty securing the support of others for their freedom of speech. Nonetheless, many who were denied their freedom of speech could count on finding support across a broad range of individuals and organizations. The equality of the right, including equal access to it, was thus a structural mechanism that ensured a shared interest in preserving it. Individuals, on their own, are not powerful enough to protect their freedom of speech; they need the assistance of associations. The interests of associations in this freedom is therefore profoundly valuable for the free speech of individuals. But this not all. Neither self- serving associations alone nor idealistic associations alone can defend their freedom of speech, for the former lack the elevated appeal and the latter often lack the money and worldly savvy to defend themselves and their freedom. It is therefore valuable for all types of associations to have an equal interest in free speech. The same is true for the rights of petitioning and religion. The more widespread the interest in such rights, the more likely that they can be defended. It is thus essential for individuals in their freedom of petitioning and religion that organizations of all sorts equally enjoy these freedoms. As already suggested, not all individuals and associations will actually feel much attachment to all of their constitutional rights. When rights are equally enjoyed, however, individuals can find at least some allies in organizations, and idealistic organizations can find some allies in business associations, and so forth. Equality thus takes rights beyond the Constitution’s formal guarantees by giving these rights a depth and breadth of social support. Section 501(c)(3)’s discrimination against the speech and related rights of idealistic organizations is therefore very dangerous. Most basically, by rendering such rights unequal, section 501(c)(3) divides organizations and thereby leaves them without a sense of a shared interest in preserving this freedom. In fact, section 501(c)(3) is only part of a broader trend, in which

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it is said that broad classes of organizations and even some individuals do not have full First Amendment rights. It is bad enough to try to limit the substantive content of speech, but it can be even worse to limit the classes that enjoy speech. In response, it may be said that the free exercise of religion, the right to petition, and even the freedom of speech are merely individual rights and thus not available to associations. The Constitution, however, as already shown in chapter 15, never restricts rights to individuals. To be sure, some rights (such as habeas) can, by their nature, be enjoyed only by individuals; and on rather dubious reasoning, the Supreme Court has confined some other rights, such as privileges and immunities and the privilege against selfincrimination, to individuals. But on the whole, the Constitution guarantees rights equally to all, regardless of whether they are individuals or associations, and regardless of whether the associations are incorporated or not. And this is structurally important for limiting government, for it not only assures each entity an equality in constitutional rights but also gives each the support that comes with equality—the support of others who care about their shared interest in such rights. This equality of rights obviously predates the Fourteenth Amendment’s equal protection of the law and is different from that sort of equality. Equal protection is not confined to constitutional rights and thus includes an equality of a broad range of the freedom protected by law. The very breadth of that equality has required judges to develop elaborate doctrines to sort out which constraints amount to unequal protection. In contrast, the equality of rights is more narrowly an equality of constitutional rights, which requires no such qualifying doctrines. The equality of rights—among all persons, including associations—is further evident from the structural relation of rights to power. The Constitution grants the federal government enumerated powers, without distinguishing between the government’s power over individuals and associations. Therefore, when the Constitution carves out rights from the powers, it similarly does not distinguish between individuals and associations. As noted in chapter 15, if the exceptions from power are to be effective limits on government, they have to protect (as far possible given their nature) all entities subject to government power. It is therefore no surprise that James Madison and Alexander Hamilton called the rights “exceptions” to government power and that the these rights equally secure the freedom of speech of all persons, including all associations.2 It is of the greatest importance that the First Amendment does not dis-

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tinguish among different types of persons (whether individual or artificial, citizen or noncitizen, black or white, etc.). This nondifferentiation or equality makes clear that the amendment removes spheres of power from government and does not allow government to confine disfavored classes to only specialized versions of the amendment’s rights. Whether one focuses on speech, petitioning, religion, or any other right, the equal availability of a right to all persons, of all sorts—be they individuals, groups, or organizations—allows them to feel a common cause in preserving the right. Equality is thus a sort of structural protection for rights, which section 501(c)(3) undermines. Unequal for the Poor The structural costs of rendering First Amendment rights unequal goes further than is obvious from the face of section 501(c)(3). In addition to discriminating against idealistic associations and the Americans who form them, the section bears down on ordinary Americans, especially the poor, who therefore have a diminished freedom of speech and a diminished interest in the speech of idealistic associations. Although the implications for the poor have already been discussed (in chapters 1 and 12), they deserve further attention because of the threat to the structural benefits of equality. The organizational and legal costs of satisfying of the Internal Revenue Code and the IRS are not trivial. To avoid the risk of being taxed for exercising their First Amendment rights, idealistic associations must parse complex regulations, interpretations, and guidance and must get IRS permission, and they must set up the usual combination of Russian dolls: initially, a section 501(c)(3) idealistic organization, then a section 501(c)(4) auxiliary, and then a section 527 political action committee. And all along they must consult lawyers. If they stray beyond what the IRS considers permissible, their legal expenses will be even greater, and because their tax-exempt status is at risk, they will have to invest disproportionately in their defense. But whatever the discriminatory financial burden on idealistic associations, the burdens are even worse when poor or otherwise ordinary individuals seek to form such an association without being taxed for their joint speech. To speak in compliance with the IRS restrictions on political speech, an association must have legal advice and organizational depth, and although this comes easily to wealthy individuals and well-established organizations, it is not so simple for most Americans who seek to form or maintain an association. They must come to the task with substantial funds and

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sophistication, or they must give up their untaxed joint exercise of political speech, petitioning, and religion.3 c One of the profound virtues of the First Amendment and its bar against licensing of speech is that it leaves rich and poor equally free to speak without prior bureaucratic obstacles, and thus even though some sorts of publication are expensive, the poor at least can speak, by themselves or in association, without legal obstacles and costs. Section 501(c)(3), however, requires Americans in idealistic organizations to jump through IRS hoops before speaking, and it thereby imposes burdens that ordinary Americans and the poor cannot easily meet. To be sure, the complexity of regulation always favors the wealthy, the numerous, or the otherwise well established. From this point of view, the costs of compliance are merely to be expected. But the complex regulation of political speech, especially when it comes with high compliance costs, is very different from other sorts of regulation, for it is apt to impede speech by those who are not wealthy—not because they cannot afford to speak but because they cannot afford the regulatory costs. The prior licensing of speakers on account of their speech, not least the prior licensing established by section 501(c)(3), is therefore particularly slanted against poor and other ordinary Americans. Such licensing squeezes much of the population out of the opportunity to form their own idealistic associations that can participate in politics.d The role of political parties and other political organizations accentuates this point. Such associations often tightly control their campaign platforms and the selection of their candidates. As a result, when Americans want to express nonconforming views in politics—views that do not fit within the spectrum of opinion presented by the political parties—their most effecc. It may be imagined that the poor do not really suffer much when their organizations fail to qualify under section 501(c)(3), because the poor are less likely to itemize their deductions than other donors and because their organizations are not apt to have much income. But even the poor can form organizations with significant income, and even organizations organized and supported by the poor can hope for donations from those who are better off. d. Section 501(c)(3)’s restrictions may also have elevated the role of the wealthy in American politics. It will be recalled (from chapter 2, footnote a) that Tocqueville compared the importance of associations in egalitarian circumstances with the importance of aristocrats in hierarchical societies—suggesting that the role of aristocrats in shaping opinion independently of government had been taken up in America by associations. It therefore must be asked whether this substitution has to some extent been reversed in the United States. To the extent section 501(c)(3)’s restrictions have limited the speech of idealistic associations, has the slack been taken up, at least in part, by the wealthy? Although the question is open to debate, there clearly is reason to be concerned.

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tive avenue for political participation is to speak through their idealistic associations. Such associations, however, are taxed for speaking in politics, unless they or their organizers can pay the high regulatory costs, and much potentially diverse political speech thus gets forced into the narrow channels provided by the political parties. The wealthy can pay the compliance costs for forming idealistic associations with distinctive views, but ordinary and poor Americans usually cannot. Section 501(c)(3) thus discriminates against relatively poor Americans, and although this by itself is disturbing enough, it is particularly worrisome because of the resulting structural danger. The strength and legitimacy of the nation’s political system depend on the equal rights of all to participate in politics, not least by joining with like-minded persons in speaking through idealistic associations. Accordingly, when section 501(c)(3) denies this equality to ordinary and poor Americans, it is apt to leave them frustrated. If they are disappointed with the political parties and want to join with others in an association that is more in harmony with their own views but do not have the money to comply with the Internal Revenue Code and the IRS, they may justly feel excluded from participating in politics in their own voice. The ultimate costs of the inequality may therefore eventually be very high. Most immediately, the costs are severe for freedom of speech. After decades of being cut off from equal freedom of speech in idealistic associations, ordinary and poor Americans are apt to feel a diminished interest in the speech of such associations. Section 501(c)(3) thus not only has abridged the freedom of speech of such associations but also appears to have contributed to a declining popular political commitment to protect their speech. The suppression has slowly eroded the opposition to suppression.

Political Parties as Political Monopolies An initial harm often causes others, and the forced specialization of persons and rights introduces a series of other injuries to the body politic. It has been seen that the specialization reduces persons and rights to fractions of themselves. In addition, it helps to elevate political parties as political monopolies. By restricting religious, educational, and charitable organizations, section 501(c)(3) quiets down the idealistic organizations that are not specialized in politics. The result is to give a sort of monopoly to specialized political organizations, including political action committees, but more centrally, political parties. This should not be a surprise. Protestants had long used the slogan “sepa-

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ration of church and state” to berate the Catholic minority for participating in politics through their church. At the same time, in separating church from state, Protestants left room for individual religious influence, thus allowing themselves, as a majority, to dominate the political system without working through any particular church. From this point of view, churches were not to make overt political demands; instead, it was more liberal and tasteful for their members, as individuals, to work indirectly—either though generic religious alliances or through the political parties, both being mechanisms in which Protestants could dominate. Thus, along the lines already seen (in chapter 7), John Bennett—president of the Union Theological Seminary— admonished “idealistic Christians” in 1958 that they should “realize the enormous importance of party organizations as instruments for creating a consensus.” Rather than adhere to an “independent” pursuit of politics, they should “compromise” and should “emphasize the enormous importance of the vocation of Christians in this patient activity within party organizations.”4 This approach, however, was not merely theological opinion, for section 501(c)(3) made it nearly a rule of law. As a result of this section’s restrictions, churches and other idealistic associations have had to adopt the theologically liberal vision of political engagement, according to which they typically cannot directly persuade or campaign for legislators but instead must speak through their satellites and rely on their members to become active in political parties. The effect is to reserve the full rights of political speech to specialized political organizations. Especially when considered in combination with the speech limits on business and labor organizations, section 501(c)(3) reserves full rights of political speech to the political parties and other organizations devoted to politics. Of course, individuals also enjoy full rights of political speech. But among associations, those that specialize in political ends have a rough monopoly of the full rights of political speech. This monopoly of political speech is worrisome, not least because it increases the narrow politicization of politics. In largely reserving full political speech to parties and other organizations that specialize in politics, it handicaps the idealistic organizations that have broader and perhaps more balanced visions of life. The result appears to be a narrowly political politics— a politics driven by parties and their relatively cramped understanding of political ends.

( Section 501(c)(3) is part of a growing tendency in American law to fracture persons and rights along specialized lines. Whether or not associations

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formed to make money will be able to enjoy full speech and religious rights remains to be seen. Already, however, religious and other idealistic organizations have long been denied full rights of petitioning and political speech. By this means the natural specialization of society has been accelerated by law. In their individuation, Americans have tended to resent the moralizing speech of idealistic organizations, and in response have often welcomed theologically liberal attempts to reduce churches and other idealistic associations to specialized roles, including specialized spheres of speech. This, however, is no excuse for using law to impose such specialization, let alone for thereby violating the First Amendment.

SEVENTEEN

Government Homogenization of Public Opinion

In all societies, especially republics, there is a continual question about the source of public opinion. Does it come from the people themselves, independently of government, or does it come in any significant way, even if only at the margins, from the government? At stake, as Alexis de Tocqueville recognized, is whether, in a republic, government can to some degree control the opinion of those to whom it is supposed to be accountable. It is therefore interesting that, at the same time that section 501(c)(3) drew divisions among Americans and their rights, it also homogenized American opinion. It was an era of progressive, nativist, and other liberal attempts at government homogenization of public opinion, and section 501(c)(3) appears to have been part of this tendency. Of course, the liberal hopes for homogenization coexisted with other aspirations for homogenization—notably, orthodox attacks on evolution and conservative assaults on communism. And these diverse demands for conformity sometimes overlapped—as when both liberal and conservative anticommunists took aim at communist opinion in idealistic organizations. The demands for homogenization, however, increasingly included demands from a progressive or more generally liberal perspective, and these were the sort that lay behind section 501(c)(3)’s speech restrictions. A drift toward homogenization is apt to happen in a society of increasingly individuated individuals, and some consolidation of opinion is therefore not a surprise. Nonetheless, it is striking that, in the twentieth century, there were numerous requests for the federal government actively to homogenize Americans—whether through government “propaganda,” public education, or legal pressures such as section 501(c)(3). These developments did not happen in concert, and neither the persuasive nor the suppressive efforts were typically understood as part of a broader effort at homogeniza-

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tion. But at a time of progressive and liberal distrust of private organizations and confidence in government, it is not a surprise that the government has simultaneously homogenized public opinion and discouraged independent private contributions to such opinion.

Administrative Shaping of Public Opinion Is there a danger that administrative agencies will use their powers to shape public opinion, thereby inverting control over opinion, such that an essential means of limiting government becomes to some degree a pathway for government power? The extent to which this has happened is difficult to measure. Certainly, however, there has been much interest in the administrative direction of public opinion, and this is an initial hint about the place of section 501(c)(3) in the drift of federal power. Elected politicians have always used their public pronouncements to influence the views of the people—as notably evident from George Washington’s Farewell Address and Andrew Jackson’s Bank Veto. But rather than transient political figures, administrators embody the permanent element of government. They are therefore much less politically accountable than elected politicians and much more capable of influencing opinion in a systematic and sustained way. And if, through administrative efforts, government can, even slightly, consolidate public opinion under governmental tutelage, the government can perhaps limit the capacity of Americans to hold the government accountable. Visions of Administrative Propaganda The idea that government—especially its administrative element—needs to engage in propaganda to shape domestic public opinion may seem rather odd in a republic. In fact, it initially became popular only when progressives became discontent with the nation’s republican form of government.1 Socially, the problem was that, beginning in the last half of the nineteenth century, many progressives and other educated Americans felt distaste for the rough-and-tumble character of representative politics—especially as conducted by America’s increasingly diverse electorate. Many educated Americans therefore qualified their attachment to the nation’s representative form of government by identifying with the authority of their own scientific and other academic knowledge. The political aspect of the problem, as explained by Woodrow Wilson in the 1880s, was that the diversity of Americans stood in the way of pro-

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gressive reforms. “[T]he reformer is bewildered” by the need to persuade “a voting majority of several million heads,” especially when this meant influencing “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.”2 One solution was administrative power. Progressives and, more broadly, members of the knowledge class challenged the nation’s republican institutions both from below with populist claims of democracy and from above with claims about the authority of experts and their scientific knowledge. Unsurprisingly, the knowledge class found greatest satisfaction in the latter approach—in administrative power as exercised by experts, who were, of course, people like themselves.3 Notwithstanding the attractions of administrative power to progressives and other members of the knowledge class, they did not expect or want the United States to abandon its republican form of government. To be sure, they regretted the consequences of expanded suffrage and therefore sought to move much legislative power out of the legislature. But they asserted the right of the people to vote for their representatives, and therefore, even with administrative power, they still had to worry about popular choices. In other words, administrative power could not be the sole solution to the poor judgment of the electorate, and there thus also had to be a second solution, the direction of public opinion. Wilson argued that the “size of the modern democracy necessitates the exercise of persuasive power by dominant minds in the shaping of popular judgments in a very different way than from that in which it was exercised in former times.” Others gradually adopted this line of thinking. Walter Lippmann, in his 1922 book Public Opinion, complained about the “defective organization of public opinion” in democracies. The press, to his mind, was part of the problem, and therefore “public opinions must be organized for the press if they are to be sound”—the organizing to be done by expert government bureaucrats.4 Later in the decade, Edward Bernays took this point of view even further in his book Propaganda. “The conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society. Those who manipulate this unseen mechanism of society constitute an invisible government which is the true ruling power of our country.” This was the “logical result of the way in which our democratic society is organized.” In theory, every citizen makes up his mind on public questions and matters of private conduct. In practice, if all men had to study for themselves the abstruse

298 / Chapter Seventeen economic, political, and ethical data involved in every question, they would find it impossible to come to a conclusion about anything.

Propaganda was thus necessary as a method of narrowing “our field of choice . . . to practical proportions.” In class terms, as Bernays explained, propaganda was a means of “bridging” the gap between “the intellectual classes and the practical classes.”5 The government of a democracy therefore had to organize public opinion. In particular, the government needed a secretary of public relations in the cabinet to “interpret the people to the government and the government to the people.” Bernays concluded that “[o]nly through the wise use of propaganda will our government, considered as the continuous administrative organ of the people, be able to maintain that intimate relationship with the public which is necessary in a democracy.”6 What sort of democracy was this? Nativists and other liberals had traditionally sought a democracy in which each citizen thought for himself. This mental independence of each individual, although derived from Protestant ideas about the faith necessary for salvation, increasingly seemed democracy’s essential foundation. Many progressives, however, were disillusioned with the masses, especially when they contemplated Americans who were not of “the older stocks,” and they therefore emphasized the role of the knowledge class—the intellectuals and, more broadly, the educated, who had expertise. The progressive notion of expertise assumed that much knowledge was beyond reasonable dispute and that the administrative application of this knowledge should not be subject to the blustery winds of politics and contrary opinions. On such assumptions, the educated class, through its experts, would simultaneously exercise administrative power and legitimize it by aligning public opinion with their expert knowledge. The result, as summarized by Bernays, was an administrative regimentation not only of power but even of the mind. Ours must be a leadership democracy administered by the intelligent minority who know how to regiment and guide the masses. Is this government by propaganda? Call it, if you prefer, government by education. But education, in the academic sense of the word, is not sufficient. It must be enlightened expert propaganda through the creation of circumstances, through the high-spotting of significant events, and the dramatization of important issues. The statesman of the future will thus be enabled to focus the public mind on crucial points of policy, and regiment a vast, heterogenous mass of voters to clear understanding and intelligent action.

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The “leadership” thereby would “mold” the public’s “opinions and habits.”7

Homogenization through Public Schools Joining progressives in making homogenizing demands were many liberals. In particular, the nativist and other liberal anxieties that lay behind section 501(c)(3) also prompted arguments for homogenization through public schools. Section 501(c)(3)’s restrictions on political speech therefore need to be understood in conjunction with nativist and other liberal educational policy. This policy aimed to counteract the teaching of the Catholic Church and other orthodox organizations, and it is thus suggestive about section 501(c)(3)’s limits on political speech. The attempt at homogenization through educational policy was supplemented by the effort at homogenization through the tax code. Beginning in the mid-nineteenth century, nativists called for Catholics to be publicly educated and thereby Americanized, even Protestantized. In this vision, public schools would secure democracy by eradicating communal differences and creating a “homogenous and harmonious people.”8 Twentieth- century nativist commentators became especially emphatic about the need for homogenization. A 1904 anti-Catholic tract grimly declared: Our public school is the mill that is to grind out this standard of morality, knowledge and patriotism to all. . . . Our American school is like a great paper mill, into which are cast rags of all kinds and colors, but which lose their special identity and come out white paper, having a common identity. So we want the children of the state, of whatever nationality, color or religion, to pass through this great moral, intellectual and patriotic mill, or transforming process.

The “children of the state” would thus have “the common identity of morality, knowledge and patriotism that is essential to true American citizenship and good government stamped upon their minds.”9 a Catholic educational “segregation” (discussed in chapter 5) seemed to show the need for homogenization. Nativists feared, as put by the New Age

a. Nativists often conflated their religious and racial prejudices. The Protestant, for example, published a map entitled “Keep the U.S. ‘White’!” This outline map of the Americas showed the United States and Canada in white, labeled “Protestant,” and Mexico and southward in black, labeled “Roman Catholic.”*

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in 1930, that the parochial school system “works against homogeneity” by keeping Catholic children “apart from the others, to make them a little world unto themselves.” Indeed, parochial schools “accentuate[d] the ‘apartness’ of the Catholics of America” and were thus “an agency militating against the homogeneity of this nation and irreconcilable with America’s democratic institutions.” In contrast, in public schools “there is communicated that spirit of democracy which is at the heart of our national life. In this common experience it is essential to the perpetuation of our democracy that all classes of our citizens should share. Unity, not separateness, is our ‘American way.’ ” Another essay in the New Age that year explained that the “only way to have a homogenous nation seemingly is through the public schools.”10 From this perspective, although public schools were to assimilate diverse immigrant populations, they were also to carry out a more ambitious agenda of homogenizing Americans. Public schools Americanized immigrant children, in the sense of introducing them to the law and culture of the United States, but these schools additionally served to alter the nation’s religion and culture—to smooth out religious, ethnic, and cultural differences into a generic Americanism. All of this was not merely Americanization but a change in what it meant to be an American—a transformation that compressed complex layers of American ideals into a standardized liberal Americanism, which upheld conformity to nativist and theologically liberal ideals. As a practical political matter, many liberals hoped that public schools would gradually break up the solidities of Catholic and other nonliberal voting blocks. The problem, as observed by the New Age in 1930, was that Catholics, “growing up in separate schools, not only think alike in religion, but become accustomed to acting as a more or less solid mass on other subjects, particularly in politics.” Catholic homogeneity was thus was an assault on American “homogeneity,” and to defeat the one sort, the public schools had to inculcate the other.11 Even when the goal was not anti-Catholic, the point was to free children from the baleful influences of their familial and community orthodoxies. The central theo-political problem (as noted in chapter 3) was that “to be a good Roman Catholic you must give up liberty of conscience, all civil and political rights, and even the privilege of thinking for yourself.” To counteract this, it has been seen that, across the liberal spectrum, from Dewey to the Klan, children had to go to public schools where they would learn “how to think, not what to think.”12 Blending liberal and progressive aims, some nativist commentators went so far as to envision public schools as a means of training Americans for collective thinking. I. N. Kuhn insisted: “A people that must do collective

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thinking, as is incumbent upon everyone in a pure democracy, must be educated in a collective manner.” He therefore sought “a purely secular democratic public school where all children are trained in collective thinking and cohesive action.”13 All along, liberals were often singularly unselfconscious about the contrast between their ideal of individual mental independence and their use of this ideal to standardize those who refused to conform. V. T. Thayer—the educational director of the Ethical Culture School in New York—feared that the “perpetuation of religious differences through indoctrination is a sure guarantee of division and discord,” and he therefore argued in 1947 that “democracy” should encourage public schools to “develop young people of intellectual fibre who . . . are immune to propaganda and resistant to dogmatism.” It was an appealing thought, especially in the aftermath of World War II and at the beginning of the Cold War. In the context of “democratic” critiques of Catholicism and other orthodoxies, however, the underlying domestic implication was that children should be homogenized along liberal lines in public schools.14 Stepping back from the fray, J. Roland Pennock, a professor of political science at Swarthmore, explained the difficulty of achieving “democratic unity.” Writing in 1950, he noted that “liberal democrats” were increasingly focusing on the “role of the state” in maintaining the “liberal-democratic myth.” Concerned about communism, they were asking: “Should the state teach democratic ideals in the public schools? . . . Should it ban criticism of democratic ideals and institutions in the schools, on the theory that the liberal doctrine of freedom of criticism and discussion applies only to mature minds?” There was evidently “a limit beyond which a state cannot go and remain in any sense ‘liberal,’” but the question was “Where should the line be drawn?” In Pennock’s view, there was no harm in “indoctrinating” children where the case for democratic ideas was “based upon rational analysis.” Public schools thus could teach children to be “skeptical of all dogma”— even if at the risk of homogenizing them in accord with liberal dogma.15 Evidently, if section 501(c)(3) had homogenizing effects, it did not stand alone. There were repeated liberal demands to homogenize opinion among children, and it should therefore be no surprise that there were also liberal efforts to homogenize opinion among adults.

Section 501(c)(3) Put another way, the homogenization did not stop with education. The nativist and more widely liberal anxieties about Catholic education were

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only part of broader fears about the influence of all sorts of churches and idealistic organizations. Especially after the 1925 decision in Piece v. Society of Sisters, this threat could not be fully countered by homogenizing children in public schools, but it could be further addressed by limiting idealistic organizations—by restricting their capacity to bring their distinctive views to bear on elections and legislation. From this perspective, section 501(c)(3)’s speech restrictions served as yet another homogenizing mechanism. In a sense, there is nothing special about section 501(c)(3)’s homogenization, for there is always a risk that persons will coercively impose their opinions on the rest of the population. This was a central problem with McCarthyism. The dramatic quality of McCarthyism, however, should not stand in the way of recognizing other impositions of conformity. The tide turned against anticommunism only after Congress rejected McCarthy’s brutishness, but at the same time, in 1954, section 501(c)(3) acquired its campaign restriction. In this way, as traced in chapter 6, 1954 was a turning point in broader developments. The anti-Catholic and anticommunist demands for homogenization, which focused on the dangers of particular opinions, were gradually being displaced by a more general liberal homogenization, which ecumenically quieted down all sorts of religious and other idealistic organizations in the political arena. Although this sort of homogenization was less harsh and narrowly prejudiced than those it was displacing, it was much broader in the speech and persons it targeted, and it would be much more enduring. The most basic way in which section 501(c)(3) homogenized public opinion should already be evident. Idealistic organizations are especially apt to espouse idealistic or uncompromising views, which do not fit neatly within the conventional give and take of politics. Thus, in generally impeding the political speech of such organizations, section 501(c)(3) already tamped down nonconforming opinion. But the section went even further toward homogenization, as will now be seen. Controversial Propaganda and Unsupported Opinion The IRS has long interpreted section 501(c)(3) in opposition to “controversial” propaganda or at least “unsupported opinion.” It has thereby targeted speech that departs too much from a consensus.16 It will be recalled (from chapter 4) that even before the adoption of section 501(c)(3)’s speech restrictions, the Bureau of Internal Revenue interpreted the statutory exemption of “educational” associations to exclude those engaged in “propaganda” and that, in so doing, the bureau expressly

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took aim at the propagation of “controversial” views. To be precise, the bureau in 1919 echoed theologically liberal ideas of education by issuing a regulation stating that “associations formed to disseminate controversial or partisan propaganda are not educational within the meaning of the statute.” The exemption of educational organizations eventually became part of section 501(c)(3), and even once this section acquired its own speech restrictions, the bureau, which became the IRS, persisted in interpreting “educational” to exclude what was “controversial.” After studying the resulting enforcement practices from 1919 through the 1950s, a later IRS attorney, William Lehrfeld, concluded that “[p]artisanship was deemed . . . to occur only if it was a point of view not prevailing at the time (i.e., was [a] minority view).” On this basis, “Unpopular organizations, including those which argued for statutory authority to organize the labor movement, were deemed to be propaganda organizations and not educational.”17 This understanding of the bureau’s approach makes sense of Slee v. Commissioner—a 1930 case in which the bureau went after the American Birth Control League. Although the case upheld the bureau’s denial of a deduction without accepting the bureau’s ideas about “controversial” propaganda, the bureau was not impeded. On the contrary, as explained by Lehrfeld, the bureau’s “successful attack on the predecessor of Planned Parenthood . . . was the building block of conformity and its functional distrust of dissent.” With few exceptions, “an organization was not exclusively educational when either its purposes or activities touched upon a subject thought to be controversial.”18 In 1938, after section 501(c)(3) acquired its restriction on substantial lobbying, the Bureau of Internal Revenue aligned its interpretation of what was educational—explaining that the bureau would exclude organizations for controversial speech only where this was a substantial part of an organization’s activity. There was a reassuring tone to this 1938 regulation: “[T]he publication of books or the giving of lectures advocating a cause of a controversial nature shall not of itself be sufficient to deny an organization the exemption, if carrying on propaganda, or otherwise attempting, to influence legislation forms no substantial part of its activities.” The bureau, however, was still taxing “controversial” speech, and it left associations unmolested in their freedom of controversial speech only where their controversial speech was insubstantial. As later summarized by Assistant Commissioner Norman Sugarman, the education exemption was generally not available “where there was an attempt to disseminate information about controversial matters.”19 The attack on controversial speech eventually focused on subversive

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speech. A 1948 press release by the bureau declared: “The tax laws do not contemplate and it has never been our policy to grant tax exemption or other privileges to subversive organizations.” Beginning in 1950, the Subversive Activities Control Act denied exemption to organizations that registered as communist groups or that were required to do so by a final order of the Subversive Activities Control Board, and in 1954 the recently renamed Internal Revenue Service confidently asserted that there were “no organizations on the list [of subversive organizations] which are also on our list of exempt organizations.” The IRS, however, did not merely rely on the lists maintained by the Subversive Activities Control Board. In 1954, Sugarman told the Reese Committee: The term ‘Un-American’ does not appear as such, in the tax laws or regulations. I have no hesitancy in stating, however, that it is the firm policy of the Revenue Service to deny exemption to any organization which evidence demonstrates is subversive. The determination of the Revenue Service denying exemption must, however, be based on lack of qualification under the terms of the tax law, namely, failure to qualify as an organization organized and operated exclusively for educational purposes. It is our belief that an organization which is truly subversive cannot be considered as exclusively educational.

It was not unreasonable to think that a “truly subversive” organization did not serve the public interest. The denial of exempt status to subversive organizations, however, was based on the IRS’s conformist vision of what was educational—a vision that candidly excluded discussion of “controversial” matters.20 The IRS abandoned its attempt to interpret “educational” in terms of what was controversial only in 1959—forty years after it first introduced this notion. But even since 1959, the IRS has continued to interpret “educational” by differentiating between “full and fair exposition” and the presentation of “unsupported opinion.” This distinction, it explains, serves the end of allowing individuals to think for themselves: “An organization may be educational even though it advocates a particular position or viewpoint so long as it presents a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion. On the other hand, an organization is not educational if its principal function is the mere presentation of unsupported opinion.”21 Leaving aside that this perpetuates a theologically liberal definition of education, dissenting opinion will often seem like “unsupported opinion” to those who disagree. As Lehrfeld observed, the IRS’s distinction lent itself

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to the “obvious desire to popularize bland, noncontroversial, unintrusive organizations.” The IRS interpretation of “educational” thus imposed “additional burdens” on organizations that were “not in the mainstream of current political thought.”22 Whether targeting “controversial” matters or “unsupported opinion,” IRS interpretations have taken aim at outlying views. The problem of homogenization, however, is not merely in the interpretation; it is also in the statute itself. Discrimination against the Poor and the Relatively Orthodox To understand section 501(c)(3)’s homogenization of public opinion, one must return to its discrimination. The discrimination against the poor has already been discussed (in chapter 16), but the discrimination against the relatively orthodox still requires elaboration. Section 501(c)(3) may seem entirely neutral among religions, for it limits the speech of religious organizations of all beliefs, whether liberal or orthodox. Significantly, however, the speech restrictions apply only to idealistic organizations, not individuals who devote themselves to religious and other idealistic ends, and the restrictions require the organizations to adopt a theologically liberal vision of ecclesiastical speech. As well understood by so many of the mid-twentieth-century opponents of ecclesiastical speech, restrictions on the speech of churches and related organizations were a means of targeting Catholicism and other “orthodox” religion that elevates ecclesiastical authority. This is not to say that the orthodox cannot sometimes work through political organizations and parties but rather that they often rely on the authority of their own institutions in formulating and conveying their distinctive religious messages to the faithful and beyond. And this is why section 501(c)(3)’s restrictions on the “propaganda,” “influence,” and other speech of such institutions has had such broad appeal to theological liberals. It was not just any propaganda and influence that worried these liberals but the propaganda and influence of churches and often related educational and charitable organizations.23 Section 501(c)(3)’s speech restrictions thus spare individuals, whom liberals consider the only entities capable of a relationship to God, and instead impose a theologically liberal vision of speech on the institutions in which the relatively orthodox locate authority—indeed, on which many of them feel dependent for expressing their beliefs. And in thus impressing a theologically liberal vision on the bodies that matter especially to the orthodox, the speech restrictions target those whom liberals have long consid-

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ered their theological opponents. The underlying point of view was candidly expressed by former attorney general Francis Biddle in his 1953 pamphlet called The Dilemmas of Liberalism. From his perspective, “what is most essentially American” is to have “honest respect for the individual human being, and resultant distrust of the orthodox.”24 Of course, “orthodox” religious affiliations, which tend to uphold ecclesiastical or clerical authority, are usually those that are not “democratic” in their internal organization, and they are therefore apt to assert opinions that depart from any democratic consensus. In a liberal democracy, in other words, religious orthodoxy tends to be politically unorthodox. Accordingly, in targeting the organizations that are central for much orthodoxy, section 501(c)(3) takes aim at the diversity of political debate. It targets the institutions that tend to be essential pathways for orthodox religions and their unorthodox views in politics.

( In the 1970s, when writing on the full range of federal intrusions in the private sphere, Peter Berger and John Neuhaus wrote: “The homogenizing consequences of present patterns of funding, licensing, and certification are intensified by tax policies that have a ‘chilling effect’ upon the readiness of religious institutions to play their part in the public realm.” As seen here, the demands for section 501(c)(3)’s restrictions came from the same theopolitical direction as some other prominent calls for homogenization. The section’s restrictions can thus be considered part of a series of efforts to homogenize Americans for the sake of “democracy.”25 These attempts at homogenization, especially when combined with the fracturing of speech rights, are sobering. In such circumstances, it is difficult to avoid worrying that Americans risk being divided and subdued, and that the opinion by which the public allegedly confines government is sometimes a means by which the government controls the people.

EIGHTEEN

Contemporary Speech Restrictions

Not all contemporary speech restrictions arise from liberal concerns. And as has been evident since the eighteenth century, liberalism often serves to break down narrow interests and prejudices. But at times liberalism undermines valuable claims and attachments, and as will be seen here, liberal anxieties have continued to subvert the freedom of speech. Indeed, since the mid-twentieth century, the range of liberal anxieties has expanded—thereby exacerbating the homogenization and the fracturing of speech rights. And along the way, it will be seen that there is a new style of suppression. Whereas the old-style suppression took aim at unorthodoxy and its challenge to a stable hierarchy of truth, the newer style targets orthodoxy and its rejection of the democratic character of knowledge.

Current Restrictions Current speech restrictions reach far beyond the political speech of idealistic organizations. And although such restrictions are as varied as the circumstances that produced them, more than a few of them give effect to liberal fears of speech and opinion—as will be seen from some salient examples. Already at the outset, it is worth repeating (what was mentioned in chapter 1) that the fears and suppression discussed in this book were liberal in ways that transcended narrow political and even ideological affiliations. It should therefore not be surprising that many of the restrictions recited here have had bipartisan support and are not distinctively left or right. Theologically and culturally liberal attitudes, and even many politically liberal attitudes, have pervaded much of American life. Thus, although liberal speech restrictions have sometimes had more support from one end of the political

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and ideological spectrum than the other, they have not been the monopoly of either side. Election Speech Beginning in 1907, Congress prophylactically targeted corruption by restricting corporate “contributions.” And since midcentury, Congress has gone much further by restricting corporate and union expenditures, including those for speech.1 The initial federal version of such controls was the Labor Management Relations Act of 1947—commonly known as the Taft- Hartley Act. The statute barred any corporation or labor organization from making a “contribution or expenditure in connection with” any election, primary election, or political convention or caucus for federal office. President Truman vetoed the bill, saying that it would “prevent the ordinary union newspaper from commenting favorably or unfavorably upon candidates or issues in national elections” and that this was a “dangerous intrusion on free speech, unwarranted by any demonstration of need.” The sentiments behind the speech restrictions, however, reached across much of the political spectrum, and Congress promptly overrode the veto.2 Just as section 501(c)(3) ecumenically took aim at both Catholic and communist nonprofits, the Taft-Hartley Act equally squelched both corporate and union speech. Business and labor had often espoused economic doctrines that, to many liberals, seemed closed to discussion or political compromise, and after decades of apparently fruitless agitation from both directions, the liberal solution, as in section 501(c)(3), was to quiet down both sides. By limiting the political participation of both sides, the legislation avoided the obvious suppression of any particular point of view, and in this manner its ecumenical suppression seemed nondiscriminatory or neutral and thus constitutional. Of course, the repression of one side in a dispute is not really cured by repressing the other side, for this only expands the abridgment of speech. Although it may be nondiscriminatory in the narrow context of the dispute, it still discriminates against all those in the dispute. Nonetheless, parity in suppession was the logic behind much of the midtwentieth-century legally imposed consensus. Since the early 1970s, the regulation of election speech has come under the rubric of “campaign finance reform,” notably in the Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002. Persisting in the liberal theory that group or coordinated speech can threaten

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democracy, these statutes limited how corporations and unions could speak in elections. For example, the 2002 statute barred such associations from using their general treasury funds for an “electioneering communication”— meaning a broadcast communication that referred to a candidate within thirty days before a primary or sixty days before a general election. Since the adoption of the Taft-Hartley Act, the regulation of election speech has forced corporations and unions to express their opinions about candidates through political action committees. The effect has been to reinforce the specialization by which unfettered political speech is increasingly confined to narrowly political organizations.3 The Supreme Court’s 2010 decision in Citizens United held the “electioneering communications” restriction unconstitutional on the ground that, even when a corporation can speak through an affiliated organization, the corporation itself still has a First Amendment right to speak. That is, the Constitution protects one’s right to speak in one’s own voice. Far from putting an end to the question, however, the case has provoked protests that corporations are not persons of the sort that enjoy the full freedom of speech, that their influence threatens “democracy,” and even that the First Amendment should be amended. There thus remain powerful demands for limitations on at least corporate expenditures for election speech—limitations that would leave corporations with different speech rights than other persons.4 Broadcasting Since 1927, the federal government has required broadcasters to get licenses for use of the airwaves, and in thus licensing speakers, the government licenses speech. The current licensing agency, established in 1934, is the Federal Communications Commission, and it licenses both radio and television broadcasters. It is best known for using the licensing to limit content that it categorizes (in descending order of offensiveness) as “obscene,” “indecent,” and “profane.” Of greater interest here, it also regulates political speech. One such regulation was the commission’s “fairness doctrine.” The 1934 Federal Communications Act required the commission to issue licenses where this served the “public interest, convenience and necessity,” and beginning in 1949, the commission interpreted this to mean that broadcasters had to cover “public issues” adequately and had to provide a “reasonable opportunity for the presentation of contrasting viewpoints on such issues.” This interpretation aimed at fairness in the sense that it required the presentation of both sides, and it thereby appealed to liberal sentiments in the same way as section 501(c)(3) and the campaign expenditure restrictions,

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which limited speech ecumenically and thereby avoided any narrowly discriminatory suppression. Yet, even if it did not discriminate between left and right, the fairness doctrine was a speech constraint, which imposed costs on broadcasters, primarily for expressing distinctive points of view. The commission in 1985 stopped enforcing the fairness doctrine, explaining that it “inhibit[ed] the presentation of controversial and important issues” and probably did not comply with the First Amendment. In 2011, the commission finally repealed the regulation.5 Still on the books, however, is the “equal time rule.” This rule, introduced by the Communications Act of 1934, requires licensed broadcasters, when they give time to one political candidate, to give equal time to other legally qualified candidates. Like the other restrictions discussed here, this rule has seemed liberal for its nondiscrimination—for its ecumenically not targeting a broadcaster on any one side, but rather equally limiting all of them. The effect, however, has been to single out for constraint the broadcasting that supports only one candidate—thereby dampening down outlying and even merely distinctive opinion.6 Like section 501(c)(3)’s speech restrictions, the commission’s speech restrictions have been justified as conditions on a government subsidy—on the theory when the government licenses the use of the airwaves, it is granting the use of government property. The airwaves, however, are not so much government property as common property, and regardless, the commission’s equal time rule, especially as imposed through licensing, is far from germane or proportionate to any lawful government power. This restriction is thus of dubious constitutionality. Nonetheless, it enjoys legitimacy and continues to diminish the ability of broadcasters to devote themselves to unconventional or even distinctive views.7 Licensing of Human-Subjects Research Other speech constraints that have appealed to liberal sensibilities have gone far beyond politics, and among the oldest of such regulations are those that establish licensing of human-subjects research. It may initially seem improbable that these regulations suppress speech, for they were designed to protect human subjects from the danger of academic research. The regulations, however, establish prior licensing of speech, and the licensing interferes with speech even when it has merely the chance of disturbing the mental equanimity of human subjects. An underlying factor in the adoption of the licensing regulations was a growing tendency to take a medical view of speech harms. In tort law, only

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a narrow range of harms are legally significant, and this limited conception of harm is essential for the freedom of speech. Medically, in contrast, harm is understood more broadly. Any harm, however slight or ephemeral, can be considered medically significant, and any medical attempt to avoid harm is therefore apt to focus on the full range of slights to mental well-being, including the minor emotional stress or discomfort that may undermine self-esteem. At least by the 1950s and 1960s, this broad medical understanding of harm found resonance in liberal anxieties—anxieties no longer only for the mental freedom of individuals but also for their well-being and sense of self. Since the nineteenth century, liberal fears about censorious opinion had been altering conceptions of harm, and in the decades after World War II, liberal concerns for the mental freedom of individuals were expanding to include solicitude for the individual’s interior wellness and self-regard. Liberal and medical conceptions of harm to the psyche were thus increasingly aligned, and thus when the federal government’s medical establishment began to explore ideas about licensing research to prevent a wide range of harms to human subjects, it was centrally concerned with mental harms. After the government’s Tuskegee Study was exposed in 1972, the government responded with regulations requiring licensing of human-subjects research. The Tuskegee Study was a longitudinal study of tertiary syphilis in black men. Although the Public Health Service ran the project on the theory that it was providing the men with health care, it did not provide them with penicillin after it became publicly available. Like the other American research projects that, in retrospect, seem especially appalling—such as the army radiation studies on soldiers and the Willowbrook study of hepatitis in disabled children—Tuskegee was government research. In contrast, private research did not have a particularly bad record, and although a 1966 study seemed to show otherwise, it reached this conclusion only by obscuring how much of its data concerned government or government- funded research. But after the exposure of the Tuskegee study, the government’s medical establishment was less interested in facing up to its own dangerous role than in using the occasion to regulate all human-subjects research. The government therefore responded to the publicity about Tuskegee by subjecting all human-subjects research to prior licensing.8 The licensing is conducted by institutional review boards, which are established by all research institutions. Although Health and Human Services and the other agencies that impose the licensing began by requiring it as a condition of federal funding for research institutions, the agencies also, since the 1970s, have inculcated the impression that any institution that al-

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lowed human-subjects research without the licensing would be violating the standard of care under state negligence law.9 The focus on speech is relentless. The regulations define research in terms of attempting to develop “generalizable knowledge,” meaning any attempt to develop a general statement or theory, which is usually understood to mean something suitable for publication. Under the regulations, any student or faculty member who wants do human-subjects research, even if only by means of interviewing them or reading public records about them, needs to get prior permission from his institution’s institutional review board. These boards treat speech as a potential medical harm and therefore control what researchers can read, ask, say, and publish—all on the basis of a board’s evaluation of whether the benefits outweigh the risks. As a result, much academic research and publication is now subject to prior licensing, and the licensing often tries to protect the mental well-being of human subjects. Under National Science Foundation guidance, institutional review boards should censor researchers to prevent them from talking to their subjects or publishing about them in ways that cause social “stigma,” mental “upset,” “worry,” and other mundane “psychological harm.” Health and Human Services, moreover, has cautioned institutional review boards to intervene because “[s]tress and feelings of guilt or embarrassment may arise simply from thinking or talking about one’s own behavior or attitudes on sensitive topics such as drug use, sexual preferences, selfishness, and violence.” In attending to mental harms, moreover, institutional review boards typically consider the risk that publication might harm individuals in their racial, sexual, or other relevant identity. The licensing thus prevents mere slights to the mental well-being of human subjects, where mental wellness is understood to include an individual’s undisturbed sense of himself, his identity, and his choices. It is difficult to imagine a more stifling form of censorship. In fact, the licensing has shut down much empirical inquiry, and by deterring much medical inquiry and publication, it has cost the lives of many Americans—the body count almost certainly being higher than the nation’s losses in Vietnam.10 Of particular interest here, this licensing reveals the shifting focus of liberal anxieties. They had once concentrated on the danger that harsh, dogmatic, or otherwise censorious opinion (of a sort traditionally associated with groups and their orthodoxies) could stifle the mental freedom of individuals to explore their thoughts without fear. By the 1970s, however, liberal anxieties were increasingly concerned with an individual’s mental wellness and especially his sense of self, often as defined by his identity. The licensing of human-subjects research was thus a hint of things to come.

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Campus Speech Restrictions Liberal anxieties have flourished most expansively on campuses. Such fears were initially enforced only through opinion, not law. In the 1970s and 1980s, some liberals spoke ironically about “political correctness,” often to caution themselves against illiberally imposing any groupthink. Political correctness, however, became a sort of groupthink, and in becoming socially coercive, it not only created the type of intellectual pressures that theological liberals once rejected but also laid a foundation for more institutional pressures.11 Concerned that the open expression of some opinions is felt as harmful or oppressive by some students, many academic institutions have restricted speech—as if students can learn when they are protected in their mental equanimity, undisturbed by opinions that “trigger” mental “stress,” “pain,” or “trauma.” Tellingly, what is considered harmful tends to be what is viewed as illiberal speech—especially that which touches on questions of identity. In such ways, the alleged harms come from relatively conventional or orthodox speech. Thus, rather than being neutral, the attack on speech has a theo-political slant. It takes aim at insufficiently liberal opinions—especially what are seen as orthodox, traditional, or stereotypical views about race, sex, and sexual preference.12 Far from being merely private institutional policy, many such constraints are responses to legal pressures. Most notoriously, the Department of Education in 2010 took its interpretation of federal anti-discrimination law so far as to treat unwelcome speech about sex as discriminatory conduct. It thereby redefined “sexual harassment” to include “any unwelcome conduct of a sexual nature,” including “verbal conduct”—even where this “verbal conduct” or speech was “objectively reasonable.” When William Channing in the nineteenth century said that orthodox speech could be as oppressive to the mind as physical harm, he at least did not seek legal barriers. One hundred eighty years later, the Department of Education demanded that academic institutions police illiberal speech as if it were a physical assault. As it happens, this interpretation of federal anti-discrimination law was recently rescinded, but it remains a salient illustration of government demands. These sorts of legal pressures turn educational institutions and even their students into administrative agents for the control of speech. The government cannot easily enforce its speech controls in the courts, and it therefore uses academic institutions to do its dirty work. It has even required academic institutions to direct students to report on each other’s alleged violations— thereby pressing the institutions to use students as administrative subagents.13

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And this brings the problem back to wholesale suppression. As seen in chapter 10, one mechanism for such suppression is licensing. Another is the federal use of various private and state organizations as administrative agents to control the speech of their personnel. For example, under Department of Education rules, the federal government turns private and public academic institutions into agents for controlling speech, and the government thereby avoids the need for retail government proceedings in courts for particular words and substitutes the internal proceedings of academic bodies. The result is an intrusive censorship that would never be possible if the government had to work publicly through the courts, with real judges, juries, and the regular due process of law. The pursuit of liberal anxieties through campus speech restrictions is particularly worrisome because it accustoms young persons to suppression. Liberals, not least many nativists, had long emphasized the ideal of teaching not what to think but how to think. Now, however, liberalism teaches what not to think.

Expanded Liberal Anxieties Liberal fears have hardly been the only cause of suppression, but they are revealing, for they show how a wide range of otherwise disparate speech restrictions have been part of a broader intellectual and cultural development. The underlying theo-political problem consists of liberal anxieties, and as these anxieties have expanded, so too have the resulting speech restrictions. Increasingly, for example, what seems threatened is an individual’s sense of identity, and this is no coincidence. Already in the nineteenth century, many theologically liberal Americans were shifting their hopes from the next world to this one, and from individual faith to individual authenticity. In this context, anxieties about the mental freedom to explore unorthodox belief about God eventually came to include concerns for the mental well-being of individuals—especially for their sense of freedom or comfort in exploring their worldly identity or belief about themselves. Liberal fears have thus expanded to include fears that dogmatic, stereotyped, or otherwise orthodox opinion will cause mental harm to individuals’ sense of their identity. Accordingly, what seems deserving of concern and even constraint is conventional group opinion—no longer merely religiously orthodox, but also socially and politically orthodox in matters of racial, sexual, or other identity. Speech restrictions therefore sometimes come with a slant against nonliberal opinion. Whereas liberal anxieties about speech traditionally arose in

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response to anxieties about theologically orthodox or illiberal opinion, they nowadays also arise in response to fears about socially or politically illiberal opinion. In the context of such fears, it is no surprise that the resulting laws tend to be skewed against nonliberal speech, including much socially and politically orthodox speech.

Majority Suppression Majoritarian liberal attacks on minority orthodox speech often seem incongruous—as if liberalism has gone awry. But they are not so strange when one realizes that a powerful strain in liberalism has long embraced such tendencies. Far from an unexpected departure, the contemporary liberal anxiety about speech and opinion is a heady brew that has been fermenting for more than two centuries. It is thus a mistake to conclude that current liberal fears of speech are an unfortunate deviation from liberal ideals. On the contrary, such anxieties have traditionally been at the heart of American liberalism. Nor are the liberal fears about speech merely an accident of intellectual history, for they are part of a broader range of anxieties that have become commonplace among relatively individuated individuals in modern society. Accordingly, a significant danger to speech in the United States (as in other modernized countries) has been from individuated majorities, which, in their solicitude for individuals and democracy, have often viewed group speech and sometimes, in particular, illiberal speech as threats that require legal restriction. Thus, although in the eighteenth century it seemed liberal to have a freedom from government restrictions on speech, this view now comes with the profound caveat that much speech (often, unsurprisingly, the speech that is religiously, culturally, or politically orthodox) must be subject to government restrictions. The result is a topsy-turvy world beyond the looking glass, in which outlying speech—the very speech that most needs constitutional protection—is considered oppressive and in need of constraint.

New-Style Suppression and the Danger of Alignment This chapter must close with the pressures for conformity that have come with a new style of suppression. The suppression of dissenting religious and political speech, which was once demanded from above by kings and bishops is now demanded from below by an individuated demos. But whereas the old-style suppression typically took aim at individuals for fear of their

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unorthodox or liberal speech, the new style often targets groups for their orthodox speech—or at least often targets the sort of speech associated with orthodox groups. Thus, not only the hierarchy of power but also the hierarchy of truth has shifted, and so too, therefore, has the prevailing mode of suppression.14 The new- style suppression is less overtly coercive than the old. At the same time, it aligns government coercion with the social pressures of the demos and thereby has implications that are at least as worrisome. In the new-style suppression, the demands of government are responsive to those of the majority, and the government attempts to align the opinion of the majority with that of the government. Government policy and the peer pressure created by the demos thus often reinforce each other, and neither offers much relief from the weight of the other. Under hierarchical English governments, the demos and the government were often at odds— thereby requiring the government to use harsh methods but leaving social foundations for resistance. In contrast, in America, where government is responsive to the demos and can further align the sentiments of the demos with government policy, the government can secure relatively unified demands for suppression, in which law and peer pressure are mutually reinforcing.15 This alignment of forces includes not only governmental and social demands but also religious beliefs. Over the centuries, religion itself has been liberalized, and this has had worldly consequences. American religion has increasingly been aligned with popular liberal and progressive opinion—even to the point of looking for salvation not in another world but in this one, and not so much from God as from democratic government. And the American evidence suggests that when hopes for a sort of salvation are placed in democratic government, individuals are more likely to embrace than to resist democratic calls for suppression. Thus, at the same time that liberalism has been questioning much governmental, social, and religious authority, it has also been aligning governmental, social, and religious pressures in ways that subdue Americans and leave diminishing room for dissent.

( The past is not always prologue, but there is much continuity between past and contemporary liberal speech restrictions. Expanding liberal anxieties have resulted in expanding liberal suppression. And this confirms the broader point of part IV, that section 501(c)(3) is part of a growing tendency to fracture Americans in their speech rights and to homogenize their opinions—thereby leaving them relatively divided and subdued.

CONCLUSION

One way to understand what is at stake here is to pull out the views of two men: Hiram Evans and John Rawls. The imperial wizard and the philosopher were very different, and the goal is not to elevate the one or demean the other. Most emphatically, Rawls did not have any Klan-like tendencies. Instead, the point is that, through Evans and Rawls, one can see how some ideas were shared among a wide range of liberal Americans. Both men were self-consciously liberal. Although the liberalism of the one was mostly theological and that of the other was professedly political, they shared overlapping theo- political anxieties, from which both concluded that churches ought to limit their speech in democratic debate. Of course, both carefully declared the importance of freedom of speech. Nonetheless, Evans called for the law to define what churches could say in connection with politics, and Rawls asked religious Americans and especially churches and other idealistic organizations to keep much of their speech out of politics. The one man thereby offered the most prominent proposal for what would become section 501(c)(3)’s speech restrictions, and the other offered the most prominent philosophical delegitimization of the speech of religious and other idealistic organizations. It ordinarily would be repugnant or at least gratuitous to lump these two men together, but for the limited purposes of understanding liberalism, it is important to consider what they had in common. When one understands their shared liberal anxieties, the world looks very different than it did beforehand. Liberalism—notwithstanding its elevated stance against narrow interest and prejudice—takes on a somber undertone, and contemporary American freedom looks less capacious and more prejudiced than it portrays itself to be. Although liberalism can be studied abstractly as a matter of political theory, it has a history in American culture, and this history reveals not only

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the enlightened quality of liberal ideals but also their shadows. Philosophically, liberalism and its apparently secular, neutral, democratic theory of politics seems a bright ornament of American life. As a historical phenomenon, however, liberalism is more complex. It included not only political theory but also much theology, and it flourished not only in the groves of academia but also in the klaverns of the Ku Klux Klan. Of particular interest here, its calls for freedom came with ominous requests for silence. These requests (as has been reiterated so often in this book) were not typically understood as demands for suppression. On the contrary, as might be expected from their origins in liberal anxieties, they were largely idealistic. And this is why they could have such broad popular appeal.

I. Group Speech and Liberal Fears Churches and other idealistic associations once played a central role in American politics—a role that was most profoundly expressed by a foreigner, Alexis de Tocqueville. Another vision of such associations, however, developed amid liberal fears of their speech, and these fears became the foundation of the suppression imposed by section 501(c)(3). Idealistic Associations in Politics In early America, idealistic associations frequently spoke out about elections and legislation, and their importance was well captured by Tocqueville. In an egalitarian society, he observed, individuals are apt to be psychologically isolated and politically weak, and they are therefore peculiarly vulnerable to a sort of tyranny. The traditional response of Americans, which was so admired by Tocqueville, was the use of associations. By this means, individuals could pull themselves together, could exert themselves far beyond their own meager power, and could thereby acquire confidence and strength in relation to government—not least the power to shape public opinion. In this approach, idealistic and especially religious organizations— groups that are neither businesses nor political organizations—are especially important, because they enable individuals and indeed large swaths of the public to pursue lines of thought and action more or less independent of both government and the market. Such organizations are apt to seem particularly worrisome to government and business, for their commitments rise above the everyday give and take of political and financial bartering and therefore tend to challenge the workaday assumptions of government and business. But this is exactly why a vibrant society needs idealistic organi-

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zations. Their ideals will often be somewhat wrongheaded—perhaps too “idealistic”—but these organizations can prevent government and business from setting the public agenda and from leading the public down mundane paths that ultimately satisfy neither body nor soul. Most centrally for this book, idealistic organizations may be essential if government is not to control the public opinion by which government should be controlled. Liberalism The idealistic associations so valued by Tocqueville were the object of liberal fears. Liberalism profoundly altered American religion, culture, and politics, and of particular significance here, its anxieties about group opinion and speech laid the foundation for suppression. The way in which twentieth- century political liberalism was partly a product of theological and nativist liberalism has not attracted sufficient attention. In fact, these theological and nativist layers are foundational for understanding liberal fears of the speech or opinion of organizations. Theological liberalism centered on anxieties about authority. Authoritative religious claims seemed a threat to the mental freedom and thus the faith of individuals. On this basis, the creeds, doctrines, and other speech of churches and their clergy appeared dangerous, and even the dogmatic or harsh speech of the individuals associated with churches could seem threatening. Many theological liberals therefore went so far as to think that group opinion—whether of churches or of allied idealistic organizations—was more threatening to liberty than government oppression, even more threatening than the Inquisition. They thought this, moreover, not only when they were a vulnerable minority in the eighteenth century but also when, in the next century, they became a powerful theological majority, and with this majority power they eventually targeted the sorts of organizations in which their theological and ideological opponents still held sway. Not merely concerned about how ecclesiastical speech seemed to threaten the mental liberty of individuals, nativists added anxieties about the threat to democracy. If individual Catholics adhered to the authority of their church in religious matters, they would end up following its commands in politics, and a liberal critique of authority thus seemed essential not only for individuals but also for their democratic polity. Liberalism thereby acquired a democratic twist that reinforced the majoritarian confidence of its adherents, and America’s increasingly individuated majority soon imposed its will with a powerful sense that it was acting for both individual freedom and democracy.

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As liberalism became more prevalent in the nineteenth century, liberal anxieties about group speech bore fruit in demands for its suppression. Some nativists sought the suppression of the Catholic Church’s political speech, and some more broadly antiecclesiastical liberals hoped to limit the political speech of all distinct churches and allied institutions. Nineteenthcentury liberalism thus was already moving in the direction of what would become section 501(c)(3)’s speech restrictions.

II. The Liberal Assault The liberal assault on antidemocratic speech became a reality in twentiethcentury tax law. The attack initially was theological. It was never, however, far from politics and political theory, and it was given effect through law. The Attack The liberal critique of antidemocratic speech found expression in a range of different arguments. Although the focus was usually on the speech of the Catholic Church, the implications more broadly reached the speech of all churches and other idealistic organizations. Some liberal anxieties concerned “propaganda” and its “influence” on “democratic” elections and legislation. Such anxieties typically were provoked by Catholic speech but increasingly also by the speech of all ecclesiastical and other idealistic organizations. It is therefore no surprise that, when Senator Reed faced opposition to some of his legislation, he introduced what became section 501(c)(3)’s 1934 restriction in terms of “propaganda” to “influence” legislation. Other liberal worries focused on segregation. In the minds of many nativists and, increasingly, other liberals, the Catholic Church segregated Catholic children in parochial schools. It thereby seemed to prevent them from mixing with children of other religions, primarily Protestants, and from becoming fully American citizens who would be prepared to participate in the nation’s democracy. Many nativists and other liberals therefore demanded compulsory public education as a means of integrating Catholics. After the Supreme Court, however, in 1925, held such compulsion unconstitutional, the liberal worries about Catholicism took another path. Especially after Al Smith ran for the presidency, many theological liberals concluded that even if children could not be desegregated in public schools, at least the speech of ecclesiastical and other idealistic organizations should be segregated from politics. For many liberals, this was nothing more than

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what was mandated by the separation of church and state. Thus, when Lyndon Johnson faced Catholic and other opposition during his reelection campaign in 1954, it seemed only natural to complete the segregation of the speech of such organizations by adding section 501(c)(3)’s restriction on campaigning. At the same time, obviously, a different sort of segregation was rapidly becoming more central. Religious and racial divisions have always competed for political attention in America, and debates about religious diversity and desegregation laid the foundation for later debates about racial diversity and desegregation. Against Catholics, nativists sought integrated public schools, and they thereby popularized ideas that the Supreme Court in 1954 applied for the protection of blacks. The nativist and liberal anxiety about Catholic segregation in private schools thus had very mixed consequences: it paved the way both for the segregation of ecclesiastical speech and the desegregation of blacks. No less significant for section 501(c)(3)’s speech restrictions were anxieties about subversion. Although nativists and other liberals developed ideas about antidemocratic subversion in opposition to the Catholic menace, they increasingly during the first half of the twentieth century also condemned communists in such terms. As a result, liberal anxieties about Catholic propaganda, influence, and subversion were eventually matched with anxieties about communist propaganda, influence, and subversion. Yet these narrow fears—of Catholicism on the one hand and communism on the other—were simultaneously being displaced with more ecumenical liberal fears about all churches and, indeed, all sorts of idealistic organizations, lest they spread subversive ideas. It was therefore not entirely a coincidence that Congress added section 501(c)(3)’s campaigning restriction in 1954. In the same year that Congress rejected McCarthy and his narrow view of subversion, it also gave effect to the increasingly popular ecumenical liberal worries about subversion from all kinds of idealistic organizations. In such ways, liberalism led to suppression. A high-minded vision of the human intellect became the low road to one of the most sweeping assaults on political speech, petitioning, and religion in American history. Political Theory The attack on speech that began with theologically liberal anxieties, twisted by nativism, found its most elevated expression in political theory. Hiram Evans already understood that the project of limiting the speech of churches

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had to be espoused as a matter of philosophy. Although liberal philosophers surely did not read Evans or aim to suppress anyone’s speech, the imperial wizard well recognized the drift of liberal democratic theory. Philosophers generally are not inclined to find their precursors in popular movements, but it should not be astonishing that a philosophy which resonates with much of the public has more than merely philosophic roots. In this instance, the lineage runs from theological liberalism, including its nativist strains, to the philosophy of John Dewey and John Rawls. Conceptually, this may be irrelevant, but historically it makes sense, and it is suggestive as to why the views of these philosophers have focused on democratic debate and the threats to it. Political theorists, however elevated above the mundane, live amid other human beings and are therefore apt to share their typical fears and predispositions—meaning, in America, the fears and predispositions of a democratic majority. This is not necessarily problematic, but when democratic philosophy has such foundations, there is a danger that majority anxieties may reverberate through it. At times, indeed, the most elevated theory may seem to echo the lowest of populist prejudice. The particulars of history and law pursued in this book therefore inevitably challenge a dominant type of American political theory. In fact, much American political theory of the past century has aligned itself with ideas that delegitimize the speech of various types of associations, whether business corporations or churches and other idealistic organizations. From the perspective of such theories, the speech of associations can threaten the mental independence of individuals or can have undue weight in influencing elections and legislation and, either way, can undermine democratic deliberation. Thus, the role of associations in shaping opinion, which Tocqueville and generations of Americans assumed to be a foundation of freedom, liberal theory has questioned as a threat to democracy. One might take comfort in the thought that, overall, the social and legal changes legitimized by liberal philosophy have been mostly for the better. From this point of view, liberal philosophy has helped to undermine the petty tyranny and political intrusion of churches and other such groups. Undoubtedly, liberal ideals helped to liberate individuals from the groupthink of their associations, but such ideals also thereby left individuals all the more susceptible to a broader government-influenced groupthink. Put another way, if individuals in an egalitarian society have little capacity on their own to sustain and convey opinions independently of government, then their liberation from associations is apt to make them more vulnerable to government.1

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One might also find consolation in the shift from narrow anxieties about Catholic and communist opinion to a softer and more ecumenical concern about the full range of organized opinion. This move was essential for preserving the popularity of liberal anxieties and for transforming them into liberal philosophy. But the morphing of narrow prejudices into a broader one is not altogether reassuring, especially when the remaining prejudice has thereby found wider support and become especially apt to legitimize suppression. Finally, one could find solace in the tendency of liberal political theory to seek merely self-restraint. The political philosophy does not demand suppression by force of law; instead, it merely asks churches and other idealistic associations voluntarily to quiet down their speech in politics for the sake of democracy. But section 501(c)(3) itself has long been defended by liberals on similar grounds. Rather than coerce, they say, the section merely gives idealistic organizations a choice. The section and the philosophy have thus been aligned in their claim of merely seeking self-restraint. Not only in substance but also in voluntariness, the suppression that was tucked away in a revenue subsection has enjoyed the benefit of seeming to give effect to a popular theory, according to which religious organizations should know their place—according to which they should be seen, but not so much heard. Of course, the philosophy was not narrowly a justification of the revenue subsection. But it delegitimized what section 501(c)(3) restricted—just as this section carried out what the philosophy envisioned. Nor should this be a surprise. They were the products, the practical and the theoretical expressions, of the same theo-political anxieties.

III. Unconstitutional The constitutional questions about section 501(c)(3) are usually given short shrift. The section’s restrictions are widely assumed to be a technical tax matter, of little broader import, and even when the constitutional questions are reached, they tend to be brushed aside on the ground that the restrictions are merely conditions on spending. By now, however, it should be obvious that this seemingly technical tax provision was borne of dark “democratic” anxieties that reek of prejudice. Force of Law The initial constitutional question concerns the force of law. Section 501(c) (3)’s speech restrictions are often assumed to be merely conditions on a

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government subsidy. They thus seem to be merely consensual and without the force of law. But this is mistaken at each stage of the analysis. For one thing, section 501(c)(3)’s exemptions are not subsidies, and its restrictions are therefore not conditions. Although it is widely assumed that section 501(c)(3)’s exemptions are tax expenditures, the tax expenditure theory actually does not apply. As recognized by Stanley Surrey and the Joint Committee on Taxation, although many other exemptions are tax expenditures, and although section 170 deductions are tax expenditures, section 501(c)(3)’s exemptions are not. Even if these exemptions were subsidies and the speech restrictions were thus conditions, these conditions could not be considered either proportionate or germane. The difficulty is that they are not tied to the amount of the subsidy arising from the exemptions. To be sure, there is a real danger that deductions will become an avenue for government-subsidized political contributions. But (as explained in chapters 11 and 13) this would only justify restrictions on the deductions taken by donors where their gifts were misused; it cannot justify sweeping restrictions on the political speech of the recipient exempt organizations. More generally, private consent cannot expand the government’s constitutional power. Constitutional limitations come with the consent of the people as a whole, and the government therefore cannot transcend such limits just because it has the consent of some small portion of the people. In particular, private consent cannot give the government a power over speech that the First Amendment expressly prohibits. In fact, section 501(c)(3) comes with the direct force of law because it gives churches and other idealistic associations a choice between two constraints— between limits on their political speech and paying a tax to speak out. If section 501(c)(3) had actually offered cash for silence, its speech restrictions would still be unconstitutional, but at least the affected organizations would have a real choice to speak without being taxed for their speech. The placement of the conditions on a mere exemption from tax, however, makes it abundantly clear that idealistic organizations have no choice except between different types of coercion. In this IRS version of hell, churches, schools, and other charities are damned if they speak and damned if they don’t: they can pay in order to speak or can save their money by shutting up. Constitutional Principles, Government Interests, Alternative Avenues, Deductions Being backed by the force of law, section 501(c)(3)’s restrictions are contrary to at least four First Amendment principles. The restrictions violate the

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freedom of speech, the right to petition, the free exercise of religion, and the right to be free from an establishment of religion. Making the restrictions worse, they are imposed through licensing and tax enforcement, both of which violate jury, due process, and other procedural rights and thereby exacerbate the First Amendment problems. Moreover, section 501(c)(3)’s threat to constitutional freedoms, both substantive and procedural, cannot be justified by any compelling government interest, for the speech restrictions are not narrowly tailored (let alone least restrictive). Even where the government has real and lawful concerns, these have much narrower solutions, and they therefore cannot excuse section 501(c)(3)’s sweeping limits on political speech. Nor can the existence of alternative avenues for speech excuse the suppression. The alternative pathways do not, as a practical matter, compensate for the loss. And even if they could, they cannot solve the constitutional problem. Idealistic organizations have been denied their freedom to speak—that is, their freedom to speak in their own voices—and the opportunity to speak through other organizations does not satisfy the requirement that restrictions on speech must be narrowly tailored. Even if one is more concerned about the total messaging from idealistic organizations than about their freedom to speak in their own voices, and even if one assumes that the total messaging is unaffected by the speech restrictions, the suppression remains troubling. It is bad enough that it discriminates against the poor and some of the relatively orthodox. More broadly, it muffles almost all churches, private schools, and charities by pressuring them to run much of their political speech through satellites, which they cannot directly control, which speak without full authenticity and vigor, and which are themselves partly restricted in their political speech. Section 501(c)(3) is thus a profound assault on constitutional rights. Although not necessarily the worst assault on First Amendment rights in the nation’s history, it is among the most sweeping assaults on these rights. In echoing section 501(c)(3)’s restrictions, section 170(c) is equally unconstitutional. Section 170’s deduction, being a benefit, is not a direct constraint on speech, petitioning, and religion, and it may therefore be thought to escape constitutional critique. Yet even if its restrictions are understood merely as conditions on a subsidy, they remain unconstitutional. The government could restrict the deductions taken by donors where their gifts were misused, but it is clearly disproportionate and irrelevant to use deductions for donors as an excuse to impose expansive barriers on the political speech of the organizations that receive the gifts. Section 170, moreover, by means of its subsidizing effect, flagrantly violates the Establishment Clause by priv-

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ileging the churches that adhere to the government’s theologically liberal vision of ecclesiastical political participation. Considered more expansively, sections 501(c)(3) and 170(c) have been part of a revival of wholesale administrative controls. When government must bring charges in court, it can control speech and religion only in retail judicial proceedings, before judges and juries, for particular words, with the full range of constitutional protections for defendants. When, however, government can license speech or churches, it can avoid making and proving particular charges about particular words, and can avoid the obstacles inherent in public judicial proceedings with constitutional protections, and it can thereby engage in wholesale suppression. Recognizing this danger, the First Amendment barred the licensing of speech or the press and the licensing of churches and preaching. Whatever control of speech or religion was permitted, the government had to impose it through retail court proceedings, with independent judges and juries. Now, however, the government has reverted to the very sort of wholesale suppression that the First Amendment centrally barred. Under sections 501(c)(3) and 170(c), the IRS licenses churches and other idealistic organizations and thereby also their speech. The result is wholesale control. Distorted Doctrines Section 501(c)(3)—not to mention section 170(c)—has thus far survived constitutional scrutiny only because of the repeated bending of constitutional doctrines. The judges and other Americans who have considered the constitutionality of section 501(c)(3) have tended to share the predispositions of their era, and the liberal assumptions that underlay the adoption of section 501(c)(3) thus also affected judgements about its lawfulness. Tax exemptions for churches and other idealistic organizations were traditionally considered merely a means of demarcating the boundary of the income tax—a means of excluding organizations that were not considered to be income-producing entities. Moreover, the tax expenditure theory (as acknowledged by Stanley Surrey and the Joint Committee on Taxation) does not apply to section 501(c)(3)’s exemptions. In their animosity to Christianity, however, many theological liberals had long argued that tax exemption was a subsidy for churches, and when their theological assumptions became widespread in the twentieth century, their subsidy argument prevailed in the courts. Another instance of doctrinal distortion is the assumption that section 501(c)(3)’s restrictions are merely voluntary. Nativists and some other lib-

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erals tended to warn the Catholic Church and allied institutions that they should “voluntarily” chose to restrict themselves—cautioning that they should be “self- restrained,” to avoid being coercively restrained, as when Waldo Beach warned that the Church would “be restrained, if it will not restrain itself.” It is therefore not surprising that those who proposed section 501(c)(3)’s restrictions and those who have subsequently justified them have presented them as if they were merely consensual conditions. The restrictions, however, are not merely consensual. Rather than reflect the section’s reality, the justification of the restrictions as merely consensual actually echoes a century of liberal bullying.2 The application of these and other doctrines reveals how theological and other liberal prejudices have distorted constitutional analysis. Being affected by the same predispositions as the legislators who adopted section 501(c)(3)’s restrictions, the judges have had difficulty seeing the constitutional problem and have unselfconsciously bent constitutional doctrine in the same direction as the restrictions. The prejudices that produced the suppression have thereby also gone far in justifying it. Bad Intent a Bad Measure Courts often assume that bad motivation is a measure of oppression. Certainly, underlying prejudice can force one to pay serious attention to a constitutional question—an approach adopted in Part II of this book. But this does not mean that either the presence or absence of prejudice is determinative. In particular, judges should not expect evidence of prejudice before finding a First Amendment violation. Such expectations might seem justified on the theory that suppression and other oppressive conduct arise from narrowly self-interested and prejudiced views. But this fails to recognize how oppressive demands can develop from widely held ideals in popular forms of government. All too often in American circumstances, oppressive proposals prevail because they match the ideals of much of the populace, thus allowing a majority to support oppression with a sense of elevated motivation. Only by recognizing this can one begin to understand how section 501(c)(3)’s suppression found so much support. Far from seeming to be based on any bad motivation, the suppression appeared to be a response to high-minded popular sentiments about the public interest—even a wholesome and compelling government interest. The significance for questions of motivation becomes apparent from cases such as Regan v. Taxation with Representation, in which the Supreme

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Court said: “The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to ai[m] at the suppression of dangerous ideas.” Precisely because the suppression was an expression of elevated ideals that permeated much of American society, the Court failed to recognize it as a result of prejudice. Since then, in Citizens United v. Federal Election Commission, the Court has begun to appreciate that “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” But there remains a profound danger that courts will continue to put rights at risk by overrelying on their capacity to discern bad motivation and then failing to notice a majority’s democratic prejudice.3 The lesson for the First Amendment is that most suppression in American society is not adopted with a self-conscious desire to suppress. Courts should therefore not expect suppression to come with telltale indications of wrongful motivation.

IV. Divided and Subdued It would go too far to say that restrictions such as those in section 501(c)(3) divide and conquer. Their effect, however, is to divide and subdue. A common liberal assumption is that associations of varying sorts do not have the same speech or religious rights as individuals. From this point of view, section 501(c)(3) and other laws can lawfully discriminate between associations and individuals and between idealistic and selfish associations— leaving full freedom of speech to individuals, less freedom to business and labor associations, and even less to idealistic organizations. The result is a fracturing of Americans and their rights, in which specialized types of speech are divided among specialized speakers. In thereby slicing and dicing Americans and their constitutional rights, the government abridges the constitutional freedom both of associators and of their associations. Indeed, it fragments the interests of the people in their rights, undermining the structural protection for liberty that comes when all persons have an equal claim to rights and thus an equal interest in defending them. The fracturing effect of section 501(c)(3) has secondary consequences, including apparently a shift of power to political organizations, especially political parties. In handicapping idealistic organizations, section 501(c)(3) gives political organizations a near monopoly, among organizations, in full rights of political speech. This is worrisome for many reasons, most clearly because it reserves full political speech to parties and other organizations that specialize in politics, and it thereby contributes to a narrowly political

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politics—a politics driven by parties and their limited vision of political goals. Accompanying the fracturing is a homogenization of public opinion. Of particular interest here, section 501(c)(3) has been a means of homogenizing the speech of idealistic organizations. The section’s word “educational” has been interpreted by the IRS to exclude “controversial” propaganda and “unsupported opinion”; its speech restrictions discriminate against the poor and at least some of the relatively orthodox; and the restrictions pressure almost all idealistic organizations to speak not in their own voice but in the dulled tone of IRS-compliant affiliates. In such ways, section 501(c)(3) is aligned with the other attempts to have government homogenize public opinion—the very opinion by which government allegedly is controlled. Accentuating these dangers—both the fracturing of rights and the subduing of speech—are a wide range of contemporary speech restrictions that similarly give expression to liberal anxieties. Such anxieties, whether for individuals or for “democracy,” have expanded, and so too, therefore, has the suppression. Like section 501(c)(3), some of the restrictions (such as those on campaign expenditures) limit organized political speech, and others (such as those on broadcasting) confine the organized expression of outlying opinions. Yet other restrictions (such as those on human-subjects research and campus speech) target illiberal speech on the theory that it is offensive, traumatizing, divisive, or otherwise harmful. In taking aim at group speech, outlying views, and illiberal speech, contemporary speech restrictions leave some speakers with less freedom to speak than others and at times even discriminate on the basis of viewpoint. Thus, like section 501(c)(3), they divide persons in their rights and generally subdue their speech.

Political Risks The overall effects of section 501(c)(3)’s restrictions are complex and difficult to measure, but some political risks are particularly salient. Most basically, the restrictions limit the freedom of individuals of the opportunity to work through their idealistic organizations to persuade voters and legislators, and they thereby leave individuals much weakened in politics. Individuals once could shape public opinion in elections and legislation with the concentrated strength they found in conjunction with others in churches and other idealistic organizations. Substantially deprived of this opportunity by section 501(c)(3), many Americans have come to feel that

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they are politically impotent—that their individual voices cannot make a difference. Even if they have never heard of Tocqueville, and even if they do not realize that they have been deprived of much of their freedom to persuade voters and legislators through idealistic associations, they recognize the grim reality that they stand alone and weak in relation to government. At the individual level, therefore, section 501(c)(3)’s speech restrictions have probably contributed to a widespread sense of personal inefficacy in politics and, more broadly, a sense of alienation. At a structural level, it is likely that the restrictions have eroded the capacity of Americans to shape public opinion and thereby protect their liberty from conformist tendencies. Put another way, as an increasingly individuated demos liberates itself from the ideals of associations, it may deprive itself of the power to pursue its varied ideals in politics and may leave itself open to becoming subject to the homogenizing ideals of a majority or of government.

Sociological Foundations Underlying many of the developments observed in this book—ranging from the liberal fears to the homogenization—have been not merely theology, politics, and culture, but more deeply the growing specialization of American life and the individuation of Americans. In these circumstances, many Americans felt equal but alienated. As put by Samuel Stevens at the turn of the century, many Americans take “satisfaction in being unattached and free,—in being able to call every man a brother, or any man a knave.” This is a profound shift in personal identity, and it has left many Americans fearful of idealistic (or at least moralizing) organizations and eager to limit their “influence,” “propaganda,” and other speech.4 Specialization and Individuation The specialization and individuation are no surprise. As Americans have pursued their lives in increasingly specialized ways, they have come to compartmentalize their work lives, their family lives, their sports lives, their academic lives, and so forth. As Americans, moreover, have enjoyed even greater opportunities for mobility and communication, they have felt less bound by their inherited or local communities, whether familial, ethnic, religious, or political. In this sense, they have become more individuated. Both the specialization and the individuation have left Americans apt to resent the threats to their personal or specialized pursuits, and such resent-

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ments initially were directed against speech of religious associations, which so often told them to restrain themselves. Although Protestants for a while deflected such resentments against the Catholic Church, the underlying resentments were as much sociological as theological, and they therefore eventually broadened out to reach all churches, all distinct religions, and almost all idealistic associations. So far did individuals take this individuated and specialized stance that many concluded that they were oppressed even merely by dogmatic, harsh, or otherwise illiberal opinion—that is, the opinion typical of relatively orthodox groups. This sensitive concern for an individual’s interior judgment, lest it be swayed by the buffeting winds of authoritative opinion, arose from Protestant and philosophical anxieties for the independence of individuals in reaching their own conclusions about their faith or belief. Perhaps even more profoundly, it arose from the underlying sociological situation of individuals who resented the pressures that came from religious and other groups. Such pressures, from the liberal perspective, were not so much free speech as modes of oppression. The pressure of speech or even mere opinion (as already noted in chapter 2) often seemed stultifying to the internal liberty of individuals. Group speech, severe opinion, even merely strongly stated claims of truth—that is, dogmatic opinion—appeared to undermine the capacity of individuals to exercise and adhere to their own judgments, and in thus undermining the authenticity of their belief, these overbearing sorts of speech and opinion appeared illiberal, intolerant, and even oppressive. Of course, there is nothing sociologically necessary about this vision of oppressive speech. Many Americans are highly individuated and specialized without resenting the speech that criticizes them and without concluding that it oppresses them—let alone that it should be silenced. Nonetheless, in a society in which vast numbers increasingly were specialized and individuated, it is not surprising that many viewed the speech of churches and other idealistic organizations as oppressive and therefore sought a freedom from it. Majority Fears of Minority Oppression Accompanying the individuation, specialization, and increasing liberalism of Americans was the strange phenomenon of majority fears of minority oppression. At first, it may seem odd that the liberal majority viewed itself as oppressed by some minorities and their organizations, but this begins to make sense when one recognizes it as an instance of the usual majoritarian fear of nonconformity. Once, long ago, when majority opinion was relatively orthodox, liberal

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opinions sometimes provoked concerns, but in the nineteenth and twentieth centuries, as majority opinion became more liberal, orthodox opinion and organizations came to be widely feared as a threat to the demos. Normally, in republics, the danger is that a majority will oppress a minority. But theological liberalism and its fears for the individual, in combination with nativism and its anxieties for the demos, led many liberal Americans to focus on the threat to the individuated majority from illiberal minorities and their organizations—as if they were apt to oppress the majority. Already before nativism altered liberal ideas of oppressive speech, theological liberals often combined majority power with the resentful fears about an orthodox minority. It will be recalled that William Ellery Channing gave classic expression to liberal fears of orthodox speech in his 1830 Massachusetts election sermon, and this is telling. By the 1830s, theological liberalism had swept through the state’s churches and was rapidly becoming the state’s dominant religious affinity. Recognizing this, the legislature appointed Channing to give the annual election sermon. Yet, notwithstanding the prevalence of liberal ideas in Massachusetts, Channing and many of his colleagues condemned the ecclesiastical opinion of the orthodox minority as a threat to the religious liberty of individuals and even suggested that such opinion was as dangerous as the tortures of the Inquisition. What once made some poetic sense as the anxiety of a minority about the hectoring religious speech of an orthodox majority was now something very different when it was expressed at a time of triumph—when it had become a majority complaint about the speech of minorities. The majority fear of oppression from a minority, which was latent in theological liberalism, became explicit in the nativist version of liberalism. Nativists, as has been seen, repeatedly condemned the Catholic Church as a threat to the Protestant majority and its democracy, and liberal anxieties thus came to center on the danger to the majority—indeed, to democracy— from the speech of a nonconforming minority. As put by Hiram Evans, “The outcome for which American Liberals must work throughout the conflict [with Catholicism] is the recreation of unity of national mind and character in America.”5 The fear of the individuated majority about the threat from a mere minority was given credibility with exaggerated accounts of the uniform and close-knit character of Catholic communities, in which individuals allegedly gave up their individuality. Protestants and Other Americans United complained in 1948 that in many American cities “Catholic communicants are more numerous than any single Protestant denomination and are moving toward cultural unity. Universal radio, universal education, the universal

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motion picture, the universal press—all these foster a closely knit community.” The danger of homogenization thus seemed to come not from the majority, which was understood as individuated and devoted to the liberal ideal of mental independence, but from Catholic or other orthodox minorities, which clustered together in allegedly unthinking conformity.6 This fear of illiberal minority homogenization seemed to justify majority liberal homogenization. If illiberal speech was harmful to individuals, and if such speech threatened the majority’s vision of democracy, then the majority appeared justified in asking the government to clamp down on the danger.

Religion and the Polity This book must close by touching more generally on the fate of religion and the polity. Section 501(c)(3) has had a role in some troubling changes. The New Orthodoxy When orthodox theology gave way to liberalism, the leading antiorthodoxy became the new orthodoxy. As might be expected of any orthodoxy, liberalism has demanded conformity and has suppressed dissent. Like many religions, it offers salvation, albeit in this world rather than the next, and being an antiorthodox orthodoxy, its worldly salvation is universal, with little room for orthodox particularism. American liberalism—a liberalism shaped by theology—aimed perhaps too high. Not content with the merely legal liberty secured by the U.S. Constitution, it aimed to secure an interior liberty from the conformity and censoriousness of outward religion and society, and it thereby ended up imposing its own conformity and censoriousness. Both internally and legally, it has been as self-righteous and intolerant as what it displaced. Indeed, at least in America, liberalism has gone far in displacing diverse orthodoxies with its more monolithic orthodoxy. The voluntary and variegated orthodoxies that liberalism assaulted came with many costs, but the newer, more concentrated orthodoxy has replicated many of those costs in a more pervasive, undifferentiated form. Erosion of Churches The history of section 501(c)(3) suggests how institutionalized prejudice and discrimination has eroded the nation’s religious culture. It has pleased

334 / Conclusion

many liberals to assume that religion, especially in its traditional modes, is retreating in response to reason, science, and modernity—in other words, that it is shrinking as a natural result of its own failure to comport with reality and the contemporary world. Whatever the truth of this thesis, the retreat of churches and organized religion has been substantially accelerated by law—not least by section 501(c)(3)’s speech restrictions.a Under section 501(c)(3), churches cannot campaign or substantially speak to protect their religious interests in avoiding burdensome laws. Nor can they fully participate as churches in the nation’s political debates—so that, even among their own adherents, they often seem of marginal significance. It is therefore difficult to agree that the declining role of churches in American life has been merely a natural decline. Rather, it appears to have been at least as much a product of suppression. Avenues for Popular Political Participation And this leads to a question about shifting pathways for politics. Especially after the adoption of the 1954 limit on campaigning, it must be asked whether section 501(c)(c) has forced much popular political participation out of churches and into less communal and less institutionally accountably venues. In reducing the relevance of institutional religion for institutional politics, section 501(c)(3) may have contributed to a shift in popular political participation. Not only by choice but also under legal pressure, churches increasingly moved from direct to indirect political engagement; and many individuals concluded that, if they could not directly pursue their elevated passions through their churches, they should pursue them elsewhere. Certainly, about a decade after section 501(c)(3) in 1954 imposed its limit on campaigning, churches began to take their political causes into the streets, and their members increasingly took their politics out of the churches. Of course, it would be too much to blame a revenue subsection for pushing popular political idealism out of religious institutions and into the streets, but at the very least section 501(c)(3) limited the political force of churches and other traditional idealistic associations. It thereby may have been at least part of what stimulated so many Americans to pursue their a. The legal accelerants have also included separationist and other theologically liberal interpretations of the Establishment Clause. Less obvious, but no less significant, is the withdrawal of legislative power from Congress to administrative agencies. Being unelected, and being dedicated to ostensibly “rational” and “scientific” policymaking, they are less open than Congress to religious interests.*

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ideals along other avenues. One way or another, there ensued a shift of much popular political participation out of the idealistic institutions that were highly integrated with the society and into less institutionally accountable paths. Religious Politics At the same time that section 501(c)(3) has undermined churches, it has contributed to America’s relatively religious politics. Traditionally, churches actively participated in American public life, including American politics, and in this way, religious engagement in politics tended to come from institutions that were clearly distinct from government and the political parties. Increasingly, however, individuals have engaged in politics with religious zeal, thus making politics religious and elevating government (or at least the political parties and candidates) in a religious manner. This has been repeatedly evident in populist “democratic” politics, happening already in the election of Thomas Jefferson, and it has been most persistently evident since the election of President Kennedy. The longevity of the problem suggests that it cannot be attributed to section 501(c)(3)’s suppression of institutional religious speech, but this suppression appears to have accentuated the tendency. Unable to pursue their religious feelings in politics directly through traditional religious institutions, Americans have increasingly given vent to their theo-political sentiments through political parties, candidates, and government. This long-term trend has been part of a shift in religion itself—from communal veneration, in institutions clearly different from government, of a deity clearly distinct from government, to an individualistic veneration of government itself and those who lead it. A predominantly Christian religious culture has thereby moved in the direction of Caesarism. Ironically much of this has been done or justified in terms of the separation of church and state. Since the time of Thomas Jefferson, this slogan has been deployed to persuade churches and their ministers to silence themselves, and in gradually justifying the segregation of ecclesiastical speech from government, it has facilitated the transformation of government into a sort of church. Thin Gruel Even where section 501(c)(3) does not accelerate the shift toward a religious politics, it disconnects the moral depth of private life from public life. Be-

336 / Conclusion

ginning in 1919, the Bureau of Internal Revenue candidly suppressed the controversial speech of educational organizations, and since 1934 and 1954 Congress has stifled much of the political speech of churches. This is not the only reason that twentieth-century American public thought has become so conformist and shallow, but section 501(c)(3) appears to have contributed to the problem. Section 501(c)(3) tamps down the speech of churches in politics; it partly, even if not completely, prevents churches from pursuing their deeply felt visions of truth and justice in elections and much legislation. Religious ideals are among the highest possible standards for measuring public life, and whatever one thinks of such ideals, they historically in America have been essential for preserving liberty. It is therefore difficult to avoid wondering whether the suppression of ecclesiastical speech and the delegitimization of religious reasoning leaves Americans, in their public debates, with thin gruel. If the central questions in public life were merely technical issues, then perhaps merely civic or public reasons could suffice. Almost all political questions, however, come to rest on more profound problems, and although personal and social reactions to these conundrums can run deep in human nature, they can also, simultaneously, respond to the highest of human aspirations. It is therefore strangely sterile to exclude churches or religion from public debates. One cost is personal. By disconnecting public life from the opinions of religious associations, section 501(c)(3) deprives many Americans of the ability to integrate their most personal insights with their public life. Of course, for the Americans who are so universalistic or liberal that they can find personal satisfaction in public reasons or an overlapping consensus, there remains much room for an integration of personal depth and public life. For Americans, however, who are attached to the distinctive religious traditions of their churches, and who cannot find an avenue for their distinctive beliefs through other organizations, section 501(c)(3) is an impediment to their exploring their beliefs in the political sphere. Another cost is public. There is much to be said for pursuing the profound satisfactions of religion outside of government, thus leaving government to be a realm of civil ideals. There are, however, risks in untethering government from the higher ends espoused by idealistic and especially religious associations, for such ideals are the cords that have preserved public opinion independent from government and that, at their best, have bound American government to some of its greatest accomplishments. Without these connections and the associations that nurture them, politics is apt to

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drift in the direction of base struggles for power, money, and other things that satisfy the lowest overlapping consensus. At the very least, the substantial exclusion of the speech of religious and other idealistic associations seems to have accelerated the shallowness of American political life. And this is no accident. “Political liberalism,” according to John Rawls, views an “insistence on the whole truth in politics as incompatible with democratic citizenship and the idea of legitimate law.” As a result, liberal democratic discourse “can seem shallow because it does not set out the most basic grounds on which we believe our view rests.” Political liberalism, in other words, suppresses the elevated voices that it views as incompatible with democracy—most centrally by limiting the role of organized religious perspectives in politics—and the result has been a public debate deprived of the full diversity of American opinion, including some of its most thoughtfully idealistic voices. Far from being necessary in a republic, this suppression of diverse points of view, which privileges a liberal consensus, has contributed to the thinness of political debate, depriving it of the range of religious and other idealistic visions that ordinarily flourish in churches, schools, and charities.7 This matters not only for divergent orthodoxies and their adherents but also, on Darwinian grounds, for the culture as a whole. The survival and success of American society depends on its willingness to allow dissent—on the freedom of associations, including idealistic associations, to challenge governmental and popular opinions. The point is not that all dissenting opinion is desirable—that is another question—but that with the freedom to explore dissenting views through their associations, Americans can increase their chances of challenging error, avoiding government oppression, and understanding their options in a difficult world. Perhaps a society that silences religious and other idealistic associations in public debate can flourish. The thin gruel, however, that currently constitutes public life is worrisome. Although it cannot be taken for granted that idealistic associations will always have much to offer, the shallowness of public debate suggests that much could be gained by allowing idealistic associations their constitutional freedom of speech.

NOTES

INTRODUCTION

1.

2. 3. 4. 5. 6. 7. 8.

26 U.S.C. §501(c)(3). The research that evolved into this book began about four years ago, and along the way I learned much from many scholars. I am particularly grateful to my learned friends Brian Bix, Richard Briffault, Kent Greenawalt, Andrew Koppelman, and Henry Monaghan, who read what became chapters, and to Grant Johnson and the two anonymous readers for the University of Chicago Press, who read the entire manuscript. The resulting comments were invaluable. Portions of chapters 4 and 16 were published in 2015 in the Notre Dame Law Review. All quotations in this book, other than those from the Constitution, are rendered in conventional modern English—that is, they are reproduced with modern spelling and capitalization, with completed abbreviations, and without italicization—except where the original is retained for emphasis. John R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space, 19 (Princeton: Princeton University Press, 2007). 26 U.S.C. §501(a) & (b). 26 U.S.C. §501(c)(3). Ibid. 26 U.S.C. §170. 26 U.S.C. §170(a) & (c). This book’s reliance on the word “church” has some advantages. It reflects the reality that the vast majority of houses of worship in the United States were and are Christian and the fact that the controversies discussed here arose largely among Christians. And interestingly, the word “church” is unusually capacious and concrete in that it can refer, even simultaneously, to the theological, social, congregational, and broader institutional aspects of religion. And it is unclear what word from outside the Christian tradition would serve as well. On the one hand, a neutral term such as “religious organization” is too abstract and broad; it does not give an immediate mental picture of what is at stake, and it is so open-ended that, outside the field of federal taxation, it is as likely to suggest a religious school or fraternity as a church. On the other hand, terms from Judaism, Islam, and other non-Christian religious traditions tend to be much too narrow—as can be illustrated by the words “temple,” “synagogue,” “mosque,” and “waqf.” The word “church” is therefore singularly valuable—especially in a study of organized religion.

340 / Notes to Introduction 9.

Jonathan Rauch, Kindly Inquisitors: The New Attacks on Free Thought, 21, 27 (Chicago: University of Chicago Press, 1993). 10. Greg Lukianoff, Freedom from Speech, 12, 22, 59 (New York: Encounter Broadsides, No. 39, 2014). 11. Patrick L. O’Daniel, “More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches,” Boston College Law Review, 42: 733 (2001); James D. Davidson, “Why Churches Cannot Endorse or Oppose Political Candidates,” Review of Religious Research, 40: 16 (1998); Deirdre Dessingue Halloran and Kevin M. Kearney, “Federal Tax Code Restrictions on Political Activity,” Catholic Law Journal, 38: 105 (1998); Judith E. Kindell and John Francis Reilly, Election Year Issues, http://www.irs.gov/pub/irs-tege/eotopici02.pdf; Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives,100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 437 (Washington: U.S. Government Printing Office, 1987); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 1, 19–20 (2003); Edward McGlynn Gaffney Jr., “On Not Rendering to Caesar: The Unconstitutionality of Tax Regulation of Activities of Religious Organizations Relating to Politics,” DePaul Law Review, 1: 23 (1990). 12. Ann M. Murphy, “Campaign Signs and the Collection Plate—Never the Twain Shall Meet?,” Pittsburgh Tax Review, 1: 35 (2003) (regarding Lyndon Johnson, and communist subversion); Richard W. Garnett, “A Quiet Faith? Taxes, Politics, and the Privatization of Religion,” Boston College Law Review, 42: 771 (2001) (regarding privatization of religion). CHAPTER ONE

1. 2. 3.

4. 5. 6.

7.

Philip Hamburger, “Liberality,” Texas Law Review, 78: 1215, 1254 (2000). Ibid.: 1215, 1242–54 (2000). For the eighteenth-century history, see Philip Hamburger, “Liberality,” Texas Law Review, 78: 1215 (2000). For separation, see Philip Hamburger, Separation of Church and State (Cambridge: Harvard University Press, 2002). For other nineteenth-century liberal intolerance, see Philip Hamburger, “Illiberal Liberalism: Liberal Theology, AntiCatholicism, & Church Property,” Journal of Contemporary Legal Issues, 12: 693 (2002). For anti-Catholicism and mid-century liberalism, see John T. McGreevy, “Thinking on One’s Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History, 84: 97, 98 (1997). Of course, there is much commentary on the mixed character and consequences of contemporary liberalism, but not so much as to past liberalism. For my scholarship, see Philip Hamburger, “Liberality,” Texas Law Review, 78: 1215 (2000). For some of the Supreme Court justices, see chapter 14. Incomplete but suggestive numbers can be found in Staff of Joint Committee on Taxation, Estimates of Federal Tax Expenditures for Fiscal Years 2008–2012, at 55, 56, 72 (Washington: U.S. Government Printing Office, 2008). Pew Research Center, Religion & Public Life, “Few Hear Clergy Speak Out about Candidates,” http://www.pewforum.org/2016/08/08/many -americans-hear-politics - from - the - pulpit/pf_2016_08_08-03/. The poll numbers are revealing. In Pew’s June–July 2016 poll, “[a]mong U.S. adults who have attended religious services in the past few months,” the percentage that said “clergy have spoken out” in “support of or against a presidential candidate (or both)” was 14 percent. The low level of these

Notes to Chapter 2 / 341 overall numbers is suggested by the 29 percent of black Protestants who said that clergy had preached in “support of or against a specific presidential candidate or candidates.” “Many Americans Hear Politics From the Pulpit” (Aug. 4, 2016), at http:// www.pewforum.org/2016/08/08/many -americans-hear-politics -from-the-pulpit/pf _2016_08_08-03/, and at http://www.pewforum.org/2016/08/08/many - americans -hear-politics-from-the-pulpit/pf_2016_08_08-06/. (This title was based on discussion of political issues in church, as opposed to discussion of candidates, let alone attempts to influence legislation.) The different result for black Protestants led one commentator, Emma Green, to write an article entitled “Black Pastors Are Breaking the Law to Get Hillary Clinton Elected,” Atlantic (Aug. 9, 2016), at http://www .theatlantic .com / politics / archive / 2016 / 08 / black - pastors - pulpit - hillary - clinton / 494876/. C H A P T E R T WO

a.

1.

2. 3.

4.

5.

6. 7.

8.

9.

Alexis de Tocqueville, “Of the Use Which Americans Make of Association in Civil Life,” in Democracy in America, 117 (II.ii.5), trans. Henry Reeve (New York: 1847). For the French, see Alexis de Tocqueville, Democracy in America: Historical-Critical Edition, 3: 900–901 (II.ii.5), ed. Eduardo Nolla (Indianapolis: Liberty Fund, 2010). Samuel West, A Sermon (Boston: 1776), in The Pulpit of the American Revolution; or, The Political Sermons of the Period of 1776, at 274–75, ed. John Wingate Thornton (New York: Burt Franklin, 1970). Ibid., 275–76. Philip Hamburger, Separation of Church and State, 92–104 (Cambridge: Harvard University Press, 2002); Philip Hamburger, “Religious Liberty in Philadelphia,” Emory Law Journal, 54: 1603 (2005). As I have explained elsewhere, the closest that any Baptist group or, indeed, any minority denomination in America came to advocating the separation of church and state was probably when in 1783 the General Association of Separate Baptists petitioned the Virginia legislature “for redress of our grievances, and that no law may pass, to connect the church, and state in the future.” Tellingly, in their petition of the next year, these Baptists abandoned this phrasing. Philip Hamburger, Separation of Church and State, 58–59 & n. 68 (Cambridge: Harvard University Press, 2002). Letter from James Madison to George Eve (Jan. 2, 1789), Papers of James Madison, 11: 404–05, ed. Robert A. Rutland & Charles F. Hobson (Charlottesville: University Press of Virginia, 1977); Paul Finkelman, “James Madison and the Bill of Rights: A Reluctant Paternity,” 1990 Supreme Court Review, 301, 335 (1991). For Quaker activities in North Carolina and Virginia, see Philip Hamburger, Law and Judicial Duty, 383–91 (Cambridge: Harvard University Press, 2008). “Protest of 3,050 New England Clergymen” (Mar. 1, 1854), in David Christy, Pulpit Politics; or Ecclesiastical Legislation on Slavery, 598–99 (1862; New York: Negro University Press, 1969); “Civil and Religious Liberty Defended,” Speech of John Kelly in Reply to the Charges of Hon. Thomas R. Whitney against Catholicism, delivered in the House of Representatives, Aug. 9, 1855, at 14–15 (Washington: 1856). See Victor B. Howard, Conscience and Slavery: The Evangelistic Calvinist Domestic Missions, 1837–1861, at 133 (Kent, OH: Kent State University Press, 1990). William C. Richards, The Pulpit and True Freedom: A Sermon, Preached before the Rhode Island Baptist State Convention, At Pawtucket, R.I., April 26, 1859, 34–35 (New York: 1859). Actually, Cowper wrote, “He is the freeman . . .” Journal of the American National Baptist Convention, Three Sessions, 19 (journal for

342 / Notes to Chapter 2 1889, 1890 & 1892) (Louisville: 1892); Journal of the Eighteenth Annual Session of the National Baptist Convention Held in the Second Baptist Church, Kansas City, Mo, . . . 1898, at 54–55 (Nashville: 1899). 10. See March on Washington for Jobs and Freedom, Aug. 28, 1963: Lincoln Memorial Program, in Bayard Rustin Papers, John F. Kennedy Library, National Archives and Records Administration, http://www.ourdocuments.gov/doc.php?flash=true&doc=96. 11. Richard W. Garnett, “A Quiet Faith? Taxes, Politics, and the Privatization of Religion,” Boston College Law Review, 42: 771 (2001). 12. Alexis de Tocqueville, Democracy in America, historical- critical ed., 3: 887, 895, ed. Eduardo Nolla (Indianapolis: Liberty Fund, 2010) (vol. 2, part 2, chapter 4, “How the Americans Combat Individualism with Free Institutions,” & chapter 5, “Of the Use That Americans Make of Association in Civil Life”) The relation of private associations to American liberty has since been echoed by many commentators. See, for example, Charles W. Elliot, “The Exemption from Taxation of Church Property, and the Property of Educational, Literary and Charitable Institutions,” in Report of the Commissioners Appointed to Inquire into the Expediency of Revising and Amending the Laws Relating to Taxation and Exemption Therefrom, 368 (1875; Boston: 1893) (Mass. House Report No. 15, 1875). CHAPTER THREE

a. b. c.

1.

2.

3. 4. 5.

6.

“Remarks on Associations” (1820), in The Works of William E. Channing, 143 (Boston: American Unitarian Association, 1881). Carrie Burnham Kilgore, “Democracy,” in Equal Rights in Religion: Report of the Centennial Congress of Liberals, 80, 167 (Boston: National Liberal League, 1876). Francis Biddle, Dilemmas of Liberalism, 3–4 (New York: Roger N. Baldwin Civil Liberties Foundation, 1953); H. W. Evans, The Rising Storm, 75, 331–32 (Atlanta: Buckhead Publishing Co., 1930). It has been noted that moral philosophy was the successor of liberal theology. Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805–1861, at 3 (Cambridge: Harvard University Press, 1970). Gordon S. Wood, “Ideology and the Origins of Liberal America,” William & Mary Quarterly, 44: 629, 634–35 (1987). See also Bernard Bailyn, “The Central Themes of the American Revolution: An Interpretation,” in Essays on the American Revolution, 3, 18–19, ed. Stephen G. Kurtz & James H. Hutson (Chapel Hill: University of North Carolina Press, 1973); Bernard Bailyn, The Ideological Origins of the American Revolution, enlarged ed., 352, 367 (Cambridge: Belknap Press, 1992). More generally, see Philip Hamburger, “Liberality,” Texas Law Review, 78: 1215, 1220–22 (2000). Philip Hamburger, “Liberality,” Texas Law Review, 78: 1215 (2000). Ibid.: 1215, 1228–29 (2000). A Letter to the Inhabitants of Quebec (Oct. 26, 1774), in A Decent Respect for the Opinions of Mankind, Congressional State Papers 1774–1776, at 63, ed. James H. Hutson (Washington: Library of Congress, 1975); A Friend of Society and Liberty, “To the Inhabitants of the Western Counties of Pennsylvania,” Pennsylvania Gazette (July 23, 1788); Juveniles Vindex, “On Bondage” (Jan 12, 1788), Virginia Independent Chronicle (Jan. 23, 1788). Joseph Lathrop, A Sermon, Preached in the First Parish in West-Springfield (1787), in Political Sermons of the American Founding Era, 1730–1805, at 871, ed. Ellis Sandoz (Indianapolis: Liberty Press, 1991); Letter from George Washington to Thomas Jeffer-

Notes to Chapter 3 / 343 son (Aug. 1, 1786), in George Washington, The Writings: From the Original Manuscript Sources 1745–1799, at 28: 505, ed. John C. Fitzpatrick (Washington: United States Government Printing Office, 1939); Yorick, “Letter to the Printer,” Aug. 27, 1784, in New York Packet (Aug. 30, 1784); Letter of George Washington to James Madison (Nov. 5, 1786), in George Washington, The Writings: From the Original Manuscript Sources 1745–1799, 29: 52, ed. John C. Fitzpatrick (Washington: U.S. Government Printing Office, 1931–1944); Memorial of the Presbytery of Hanover to the General Assembly of Virginia (Oct., 1784), in American State Papers Bearing on Sunday Legislation, 109 (Washington: Religious Liberty Association, 1911); Christianus, “To the Printers of the Pennsylvania Gazetteer” (May 15, 1776). At the beginning of the Constitutional Convention, George Mason worried that there would be “much difficulty in organizing a government upon this great scale” but did not doubt that “with a proper degree of coolness, liberality and candor (very rare commodities, bye the bye),” it “may be effected.” Letter from George Mason to George Mason Jr. (May 20, 1787), in The Records of the Federal Convention of 1787, 3: 23, ed. Max Farrand (New Haven: Yale University Press, 1966). 7. “Queries on the Subject of Religious Establishments,” Virginia Gazette (Purdie) (Nov. 8, 1776); John Dickinson, “State of Delaware, In the House of Assembly, at Dover (Jan. 19, 1782),” Pennsylvania Gazette (Feb. 27, 1782). See also Philip Hamburger, “Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights,” Supreme Court Review, 295 (1992). 8. Philip Hamburger, “Illiberal Liberalism: Liberal Theology, Anti- Catholicism, and Church Property,” Journal of Contemporary Legal Issues, 12: 693, 708 (2002). 9. The Records of the Federal Convention of 1787, 2: 236 (Aug. 9, 1787) (Madison’s notes), ed. Max Farrand (New Haven: Yale University Press, 1974); Nathan Strong, A Sermon: Delivered in the Presence of His Excellency Samuel Huntington, Esq., L.L.D., Governor, and the Honorable General Assembly of the State of Connecticut, 21 (Hartford: 1790). 10. William Wishart, That Certain and Unchangeable Difference Betwixt Moral Good and Evil: A Sermon Preach’d before the Societies for the Reformation of Manners, at Salters-Hall, on Monday the 3d of July, 1732, at 33–34 (London: 1732); William Dudgeon, “A Catechism Founded upon Experience and Reason” (1739), in The Philosophical Works, 190 (n.p.: 1765). 11. For an eighteenth-century example of theologically liberal newspaper sentiment, note this comment: “It is our happiness to live in the times of enlightened liberty, when the human mind, liberated from the restraints and fetters of superstition and authority, hath been taught to onceive just sentiments of its own.” A Jew Broker, Letter to the Printers, Independent Gazetteer (Mar. 13, 1784). 12. For the Harvard elections and their political context, see Marc M. Arkin, “The Force of Ancient Manners: Federalist Politics and the Unitarian Controversy,” Journal of the Early Republic, 22: 575 (2002). For the divisions over liberalism see Philip Hamburger, “Illiberal Liberalism: Liberal Theology, Anti-Catholicism, and Church Property,” Journal of Contemporary Legal Issues, 12: 693, 700 (2002). 13. Elizabeth Fleet, ed. “Madison’s Detached Memoranda,” William & Mary Quarterly, 3: 556–57 (3rd series, 1946). When Congress passed a bill to incorporate the Protestant Episcopal Church of Alexandria in 1811, Madison vetoed it on the ground that it provided for fixed procedures and rules for the church’s internal governance, “so that no change could be made therein.” These were precisely the sort of provisions that relatively orthodox congregations adopted to prevent theological liberals from tak-

344 / Notes to Chapter 3

14. 15.

16.

17. 18.

19.

20.

21.

22.

ing them over and altering their doctrines, and it is revealing that Madison objected to them. Veto Message (Feb. 21, 1811), in A Compilation of the Messages and Papers of the Presidents 1789–1897, at 1: 489–90, ed. James D. Richardson (Washington: U.S. Government Printing Office, 1896). [Cyrus Parker Bradley], Biography of Isaac Hill, of New Hampshire, 154, 156 (Concord: John F. Brown, 1835). Elihu Palmer, “To the Public” (Mar. 16, 1792), General Advertiser, 3 (Mar. 17, 1792); Eliphaz Liberalissimus [Ashbel Green], A Letter to the Preacher of Liberal Sentiments, Containing Among Other Important Matters, A Liberal Man’s Confession of Faith, 14 (1792). See also A.B. [Rev. John Smith], “Letter to Mr. Brown” (Mar. 17, 1792), General Advertiser, 3 (Mar. 20, 1792); The Life of Ashbel Green, 319–20, ed. Joseph H. Jones (New York: 1849). For further details of this episode, see Philip Hamburger, “Liberality,” Texas Law Review, 78: 1215, 1234–35, n. 51 (2000). David Thomas, The Virginia Baptist, 17 (Baltimore: 1774); William E. Channing, A Sermon, Preached at the Annual Election, 25 (Boston: 1830); Letter from Thomas Jefferson to Mordecai Noah (May 28, 1818), Library of Congress, http://www.loc.gov /resource/mtj9.065_0076_0079/?sp=2. The Virginia Declaration of Rights recited that “Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” Virginia Declaration of Rights, article 16 (1776). William E. Channing, A Sermon, Preached at the Annual Election, 10, 13–14, 25, 27–28 (Boston: 1830). “Remarks on Associations” (1820), in The Works of William E. Channing, 142 (Boston: American Unitarian Association, 1881); Leonard Bacon, “The Relation of Christianity to Law and Government,” New Englander, 14: 447, 456, 458 (1856). The notion of spiritual despotism had been popularized by Isaac Taylor, Spiritual Despotism (1835). “The System of Exclusion and Denunciation in Religion Considered” (1815), in The Works of William E. Channing, 306, 482 (Boston: American Unitarian Association, 1881). Bernard Whitman, Two Letters to the Reverend Moses Stuart; on the Subject of Religious Liberty, 2nd ed., 2 (Boston: 1831); Ezra S. Gannett, An Address Delivered at the Funeral of the Rev. William Ezra Channing, D.D., Oct. 7, 1842, at 14 (American Unitarian Association Tract, 1st Series, Vol. 26, at 170) (Boston: 1843); D[aniel] Huntington, An Intolerant Spirit, Hostile to the Interests of Society, A Sermon, 10–11 (Boston: 1822); S. K. Lothrop, The Nature and Extent of Religious Liberty: A Sermon Preached at the Church in Brattle Square . . . June 17, 1838, 3 (Boston: 1838). Lothrop understood the distinction in institutional terms. The external liberty was that which “the individual claims of the government as a civil right, and relates to the extent of his exemption from penalties, privations or disabilities, on account either of his articles of faith, or modes of worship.” In contrast, the internal was “the liberty which the individual claims of the church or ecclesiastical body, and relates to his freedom to form and express his own opinions of religious truth, without loss of religious privileges and fellowship, on account of those opinions.” Ibid. William E. Channing, A Discourse Occasioned by the Death of the Rev. Dr. Follen, 11 (Cambridge: 1840) (quoting Tocqueville); Orville Dewey, Moral Views of Commerce, Society and Politics, in Twelve Discourses, 170–71 (New York: 1838) (quoting Tocqueville and finding “confirmation” in his writings). “Remarks on Associations” (1820), in The Works of William E. Channing, 140 (Boston:

Notes to Chapter 3 / 345

23.

24. 25.

26.

27.

28.

29.

30.

American Unitarian Association, 1881); Orville Dewey, Moral Views of Commerce, Society and Politics, in Twelve Discourses, 170 (New York: 1838). John Stuart Mill, On Liberty and Utilitarianism, xxvii, 67–68, 73, ed. Isaiah Berlin (New York: Everyman’s Library, 1991); Joseph Hamburger, John Stuart Mill on Liberty and Control, 3 (Princeton: Princeton University Press, 1999). A host of lesser-known men soon echoed Mill’s liberal fears about the threat to independent thought from organizations and public opinion. An American in the next decade wrote that the “injury and oppression” of society “have been none the less, because their operation has been silent, attended with no physical force or legal restraint, but reaching only the mind and heart of the sufferer, crushing them with the moral weight of unjust opprobrium, and torturing them with all the ingenious appliances of social tyranny.” Public opinion and the speech expressing it thus was a “sort of despotism—the most dangerous of all, if not the only danger to be feared in civilized communities and in liberal governments.” “Mill on Liberty,” Continental Monthly, 3: 674, 676 (1863). “Remarks on Associations” (1820), in The Works of William E. Channing, 143 (Boston: American Unitarian Association, 1881). The Reports of the American Unitarian Association, Presented at the Seventh Anniversary, May 29, 1832, at 31 (Boston: 1832) (Unitarian Tracts, 5: 323, 1st Series, No. 61). Channing had similarly rejected the “phrase or denomination Liberal Christians.” He protested that he had “never been inclined to claim this appellation for myself or my friends, because, as the word liberality expresses the noblest qualities of the human mind,—freedom from local prejudices and narrow feelings, the enlargement of the views and affections,—I have thought that the assumption of it would savor of that spirit which has been attempted to limit the words orthodox and evangelical to a particular body of Christians.” Extracts from a Letter to the Rev. Samuel C. Thatcher (June 20, 1815), in William Henry Channing, The Life of William Ellery Channing, D.D., 195, n. 1 (Boston: American Unitarian Association, 1880). Thomas Jefferson, Letter to Benjamin Rush (Sept. 23, 1800), in Writings of Thomas Jefferson, 10: 175, ed. Andrew A. Lipscomb (Washington: Thomas Jefferson Memorial Association, 1904). Brutus [Samuel Finley Morse], Foreign Conspiracy against the Liberties of the United States, 107, 169 (New York: 1835); John T. McGreevy, “Thinking on One’s Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History, 84: 97, 98 (1997). See Philip Hamburger, Separation of Church and State, 198–201 (Cambridge: Harvard University Press, 2002). For a nice illustration of how Presbyterians simultaneously attacked Catholics and tried to establish their own “liberality,” see Thomas Smyth, Ecclesiastical Republicanism; or The Republicanism, Liberality, and Catholicity of Presbytery, in Contrast with Prelacy and Popery, chapter 5 (Boston: 1843). Lewis C. Levin, A Lecture on Irish Repeal, 14–15 (Philadelphia: 1844). In a still oldfashioned manner, Levin still worried about the threat to the republic rather than the nation’s democracy: the “American Ballot Box” thus would be the “battleground” on which Catholics would “vanquish our republican institutions.” Ibid. Thomas R. Whitney, An Address Delivered . . . at Hope Chapel . . . on the Occasion of the Seventh Anniversary of Alpha Chapter, Order of United Americans, 10 (New York 1852). He also wrote: “These qualifications are rarely found in one trained to submission, and imbued with a sense of his own inferiority. Such a man, coming from the twilight

346 / Notes to Chapter 3

31.

32. 33.

34. 35. 36. 37. 38.

39.

40. 41. 42.

of bondage into the broad meridian of freedom, is dazzled with the unaccustomed glory that surrounds him. His confused senses cannot endure the light. He is lost, bewildered. He can neither comprehend nor realize his new position. Accustomed to cringe in the presence of his ‘betters,’ he looks in vain for a living shrine that will accept the homage of his bended knee.” Thomas R. Whitney, A Defense of the American Policy, 129 (New York: 1856). He asked: “Is such a man in a condition to exercise the right of suffrage side by side with the free-born, and free-cultured intelligence? Should the vote of such a man be permitted to neutralize and render nugatory the vote of the most enlightened mind in the nation? Such is its effect.” Ibid., 130. “Ecclesiastical Tenures,” Speech of James O. Putnam of Buffalo on the Bill Providing for the Vesting of the Title of Church Property in Lay Trustees, delivered in the Senate of New York, January 30, 1855, at 21 (Albany: 1855). In Connecticut, Hiram Ketchum declared: “We have no objection to foreigners coming here, . . . but the theory is, that they shall remain here long enough to understand . . . our institutions and our habits before they shall be permitted to exercise any control in political affairs.” Connecticut Aroused! Great Demonstration at New Haven. Speech of Hon. Hiram Ketchum, 10 ([1856]). Among the most persistent advocates of such views in the early twentieth century were the Guardians of Liberty. After expressing their dedication to separation of church and state, the Guardians declared: “We deny the right of any political or ecclesiastical organization to manipulate or control the sovereign citizenship of our people or to dispose of their civil rights and privileges for political office or power, and we are determined that every citizen shall exercise these rights and privileges unmolested, answerable only to his conscience and to his God.” “Declaration of Principles,” Guardian of Liberty, 3: 447 (1915). Carrie Burnham Kilgore, “Democracy,” in Equal Rights in Religion: Report of the Centennial Congress of Liberals, 80–82 (Boston: National Liberal League, 1876). Henry W. Bellows, The Christian Liberal A Sermon, Delivered before the Western Unitarian Conference, at Buffalo, 11 (Buffalo: 1855); The Truth Seeker Collection of Forms, Hymns, and Recitations. Original and Selected—For the Use of Liberals, 7, 9–10 (New York: D. M. Bennett, Liberal & Scientific Publishing House, 1877). E. P. Hurlbut, A Secular View of Religion in the State, and the Bible in the Public Schools, 5, 16 (Albany: Joel Munsell, 1870). Ibid., 19. Ibid., 20, 23. Samuel Eugene Stevens, Science and Superstition, 14, 76, 92, 97, 110 (New York: Truth Seeker Company, 1913 [1914]). The religious and secular fears of concentrated wealth and of monopoly often overlapped, especially in nativist and other liberal tracts aimed at the Church’s “Concentration of Wealth.” James F. Morton Jr., Exempting the Churches, 32 (New York: Truth Seeker Company, 1916). See also ibid., 68. T. B. Wakeman, Comstock Laws Considered as to Their Constitutionality, 10 (New York: D. M. Bennett, 1879); Samuel Eugene Stevens, Philosophy of the Great Unconscious, 111 (New York: Truth Seeker Company, 1908). See also Samuel Eugene Stevens, Science and Superstition, 22–23 (New York: Truth Seeker Company, 1913 [1914]). Francis Biddle, Dilemmas of Liberalism, 2–3, 7 (New York: Roger N. Baldwin Civil Liberties Foundation, 1953). Edward N. Saveth, “Religion and the Welfare State,” 1, 24, 25, typed report in author’s possession (New York: American Jewish Committee, Mar. 7, 1952). H. W. Evans, The Rising Storm, 75, 331–32 (Atlanta: Buckhead Publishing Co., 1930).

Notes to Chapter 3 / 347 43. Cesare Beccaria, An Essay on Crimes and Punishments, 1 (London: 1775); The Federalist, 58, ed. Jacob E. Cooke (Middletown: Wesleyan University Press, 1961). Beccaria was quoted by the Continental Congress in its 1774 Letter to the Inhabitants of Quebec and by some Anti-Federalists, including Melancton Smith. The Documentary History of the Ratification of the Constitution, 22: 1752, 1794, n. 6, ed. John P. Kaminski & Gaspare J. Saladino (Madison: Wisconsin Historical Society, 2008). CHAPTER FOUR

b.

c. 1.

2. 3.

4. 5.

6.

7.

George P. Rutledge, Center-Shots at Rome; A Series of Lectures on Catholicism, 172 (Cincinnati: Standard Publishing Company, 1914); Political Romanism: An Organized Opposition to Progress Destructive of Free Institutions . . . , 321 (New York: Publicity Bureau, Masonic Hall, 1914). Such complaints sometimes played upon the enthusiasm of Catholics, as when Father Carran demanded that there should be more than one Catholic on the Supreme Court. E. Boyd Barrett, Rome Stoops to Conquer, 151 (New York: Julian Messner, 1935), citing New York Times (Feb. 6, 1935). Frederick P. Keppel, The Foundation: Its Place in American Life, 46 (New York: Macmillan Company, 1930). For the nineteenth century, see Ray Allen Billington, The Protestant Crusade, 1800– 1860: A Study of the Origins of American Nativism (Chicago: Quadrangle Books, 1952); Gustavus Myers, History of Bigotry in the United States (New York: Random House, 1943); Philip Hamburger, Separation of Church and State, 234–38 (Cambridge: Harvard University Press, 2002). For the persistence of anti-Catholic prejudice in the twentieth century, see Philip Hamburger, Separation of Church and State, 390–478 (Cambridge: Harvard University Press, 2002); John T. McGreevy, Catholicism and American Freedom, 166–88 (New York: W. W. Norton & Company, 2003). See Philip Hamburger, Separation of Church and State, 194–202, 249, 251, 402–05 (Cambridge, Harvard University Press, 2002). “More about Catholicism and the Presidency,” New Republic, 315–17 (May 11, 1927), as quoted by John T. McGreevy, Catholicism and American Freedom, 170 (New York: W. W. Norton & Company, 2003); Paul M. Winter, What Price Tolerance, 135 (Hewlett, NY: All-American Book, Lecture and Research Bureau, 1928). He also quoted Marquis D. L. Van Over, that “[t]he Roman Catholic hierarchy is a great international ‘Mind Creating Agency.’ ” Ibid., 138. H. C. Morrison, Romanism and Ruin, 12, 150–51 (Louisville: Pentecostal Publishing Company, 1914). See also ibid., 176. Ibid., 33–34, 37. The fear of Catholic power in Washington was persistent. Protestants and Other Americans United worried about “the interpenetration of papal influence and control over the huge concentration of Catholic interests in Washington.” Church and State Newsletter, 1(3): 2 (Aug. 1948). Recognizing the danger of seeming to go too far, the newsletter asked: “What do we mean by Catholic influence? We must distinguish clearly between the power seeking prelate who would undermine our form of government and mold us all through legislation in an ultimate goal of uniting Church and State and the humble Catholic follower whose only fault is a blind faith in leaders who regard him as a tool.” Church and State Newsletter, 2(1): 3 (Jan. 1949). H. C. Morrison, Romanism and Ruin, 37 (Louisville: Pentecostal Publishing Company, 1914); “Andy” Lockhart, Protestantism in Italy vs. Romanism in America, 11 (Milan IL: Rail Splitter Press, [mid-1920s]). William Lloyd Clark, Washington in the Grasp of Rome (Milan, IL: Rail Splitter Press,

348 / Notes to Chapter 4

8.

9.

10.

11.

12. 13.

14.

15.

[1920s]); William Lloyd Clark, Pat’s Grip on the Government (Milan, IL: Rail Splitter Press, [1920s]); William Lloyd Clark, Al Smith and the White House (Milan, IL: Rail Splitter Press, [1928]). Earlier, the Boston Committee of One Hundred published James B. Dunn, The Pope’s Last Veto in American Politics. Will the People Sustain It? (Boston: Committee of One Hundred, 1890). Adams Allen, “What Are You Going to Do About It?,” in William Lloyd Clark et al., The Menace of Al Smith, 20 (Milan, IL: Rail Splitter Press, [1928]); Watson Heston, “A New Laocoon,” in William Lloyd Clark, Washington in the Grasp of Rome, 12 (Milan, IL: Rail Splitter Press, [1920s]). Heston, who died in 1905, illustrated a range of secularist and other theologically liberal books. Amerika (Nov. 2, 1914), clipping in Knights of Columbus Archive, SC- 11-1-010; J. Cardwell Hamilton, “If Al Smith Is Elected,” in William Lloyd Clark et al., The Menace of Al Smith, 24 (Milan, IL: Rail Splitter Press, [1928]); Theodore Graebner, The Pope and Temporal Power, 102 (Milwaukee: Northwestern Publishing House, 1929). The Lutheran wrote this in response to the attempt by the Catholic Church to have the postal laws amended to limit the distribution of nativist anti- Catholic literature. Although much of anti-Catholic literature was false and often even obscene, the Catholic Church made a grave error in attempting to defend itself through legal restrictions, and it thereby fueled Protestant anxieties about Catholic threats to liberty. Encyclical Letter of Pope Pius XI on Education (1930), in The Truth Shall Make You Free, 27 (Washington: Supreme Council 33°, Southern Jurisdiction, 1930);. The Truth Shall Make You Free, added commentary on front flyleaf by John H. Cowles (Washington: Supreme Council 33°, Southern Jurisdiction, 1930). Church and State Newsletter, 1(3): 2 (Aug. 1948); Church and State Newsletter, 2(1): 3 (Jan. 1949). According to a Scottish Rite commentator, the Church “is constantly bringing its weight to bear on local, state and national officials, on the political machines which rule many of our cities, on labor unions, social welfare agencies, teachers’ organizations. Its clearly avowed purpose is to make America Catholic.” E.R., “Church Political Party,” Scottish Rite News Bulletin, 6 (Dec. 1952). Studies in Church-State Relations: The American Way, 27, 65 (Washington: Protestants and Other Americans United for Separation of Church and State, 1963). Ibid., 61. In the 1950s, Harold Rafton wrote that “the encyclicals constitute the blueprint for the Church in its attempt to influence the thought of Americans of Catholic faith, and our American way of life.” Harold R. Rafton, The Roman Catholic Church and Democracy: The Teachings of Pope Leo XIII on Church and State, 20 (Boston: Beacon Press, 1951) (italics omitted). George Elderkin, worried about “Catholics in Strategic Government Posts.” He feared the “infiltration of Roman Catholics into the boards of public schools and their faculties, and into the supreme councils of city, state and national Democratic organizations,” and the “logical concomitant” was “their appearance in strategic government posts.” This was “a certain index of greater Catholic influence at the Capitol than ever before.” George W. Elderkin, The Roman Catholic Problem, 209 (New York: Vantage Press, 1954). Making America Catholic by Order of Pope Pius X: Roman Catholic Principles as Defined by Popes, Prelates and Priests, 64 (Saint Paul: A. H. Beach, 1924); Edward H. Wyle, “Separation of Church and State,” New Age, 62: 39, 40 (1954). See also “Drive for Romanization Continues,” New Age, 63: 138 (1955) (regarding the Catholic Church’s attempt to influence the Supreme Court). Philip Hamburger, Separation of Church and State, 369–70 (Cambridge: Harvard Uni-

Notes to Chapter 4 / 349

16.

17. 18. 19.

20.

versity Press, 2002). Unlike most members of the Guardians of Liberty, those who edited their magazine, the Guardian of Liberty, were not merely anti-Catholic but more generally antiecclesiastical, and they favored “the abolition of tax exemption to any church or society, or school under church direction or ownership.” Guardian of Liberty, 3: 441 (1915). Thus, when reporting on a like-minded circular protesting tax exemption, the magazine reported: “Taking the ground that absolute separation of church and state should extend to every denomination, the Guardians in their circular have picked its illustrations from Protestant as well as Roman Catholic holdings.” “Tax Exemption to Be Exposed,” Guardian of Liberty, 4: 78 (1917). F. Ernest Johnson, The Church and Society, 99–100 (New York: Abingdon-Cokesbury Press, 1935); Andrew Jewett, Science, Democracy, and the American University, 216 (Cambridge: Cambridge University Press, 2012). Andrew M. Davis, “Corporations in Politics,” Californian, 4: 140 (Aug. 1881). H. C. Morrison, Romanism and Ruin, 156, 164–65 (Louisville: Pentecostal Publishing Company, 1914). George P. Rutledge, Center-Shots at Rome; A Series of Lectures on Catholicism, 177 (Cincinnati: Standard Publishing Company, 1914); E. Boyd Barrett, Rome Stoops to Conquer, 95 (New York: Julian Messner, 1935). Theodore Graebner, The Pope and Temporal Power, 98 (Milwaukee: Northwestern Publishing House, 1929); “Citizens Win Fight for Referendum Tax Exemption,” New Age, 59: 581 (1951). Another commentator wrote: “Fear of Catholic boycott often operates as reason for self-censorship. Newspapers are influenced by this fear, and it is very difficult to get news published that may be unfavorable to the Roman Catholic Church. . . . It is the punitive boycott directed against all that a particular agency may do that interferes with the freedom of non-Catholics.” John C. Bennett, Christians and the State, 256 (New York: Charles Scribner’s Sons, 1958). Protestants and Other Americans United complained: “The authority of bishops and priests to apply censorship, taboos, condemnation and boycotts is exercised freely in individual and communal affairs,” and “those who transgress the smallest clerical law or directive are subject to punishment, and in grievous cases, excommunication and damnation.” Indeed, The machinery that the Roman Catholic Church uses to enforce its influence upon society is quite elaborate. Newspapers which print criticism of Catholic views and policies may expect to have advertising withdrawn and its subscription lists plundered. The Church prescribes plays, books, films and holds the power of economic life or death over authors, editors and publishers. It censors the theatre, radio, television and the cinema. If any species of communication permits any criticism of the Roman Catholic Church it must give equal time for the “right answer” to the impeachment or suffer the consequences.

Studies in Church-State Relations: The American Way, 27–28 (Washington: Protestants and Other Americans United for Separation of Church and State, 1963). 21. “Join the Great Crusade,” Protestant, 7(7): 66 (July 1927). See also “Senator Heflin’s Great Speech,” Protestant, 6(12): 177 (Feb. 1927). Concerns about Catholic power over the press remained commonplace well after World War II. A masonic writer protested that “Roman Catholicism is engaged in ceaseless, surreptitious pressure to obtain a position of preference and control in the New World. . . . It has an astonishing hold over the machinery of American life—the press, the radio, the films, the whole field of public relations.” E.R., “Church Political Party,” Scottish Rite News Bulletin, 6 (Dec. 1952). A 1959 pamphlet worried that “Catholicism’s power over the

350 / Notes to Chapter 4 press, the radio and television, and her increasing strength at the polls, indicate that it may soon be too late to take our stand for our great American liberties.” Don W. Hillis, The Big Question . . . A Vatican Victory in the U.S.A.?, 19 (Findlay, OH: Dunham Publishing Company, 1959). Nichols thought that “the Catholic Church holds such control over the means of communication—press, radio, and screen—that it is unlikely that much will henceforth be heard through them against the Roman Church.” James Hastings Nichols, Democracy and the Churches, 245 (Philadelphia: Westminster Press, 1951). Protestants sometimes fantasized about the slashing quality of their “independent” press. In a series of lectures on Catholicism, the Reverend George P. Rutledge of Columbus boasted: The Protestant magazine, the Menace, and other strictly antipapal journals, together with a number of independent religious papers that contain antipapal departments—the Christian Standard of Cincinnati being second to none— constitute a great blade which is constantly getting longer and sharper each week. This blade is constantly pushed into the side of Rome and turned, and the old lady, in a voice that can be heard the world around, is daily shrieking “Ouch! That hurts!” The independent press, a knife that reaches across oceans and continents, and whose length is measured only by the extent of civilization, is on the job, slashing Romanism from head to foot every day in the year and every hour in the day. [Applause.]

22. 23.

24. 25.

26.

George P. Rutledge, Center-Shots at Rome; A Series of Lectures on Catholicism, 112–13 (Cincinnati: Standard Publishing Company, 1914). Theodore Graebner, The Pope and Temporal Power, 96–97 (Milwaukee: Northwestern Publishing House, 1929). Incidentally, the Cambridge classicist F. M. Cornford tellingly commented on the wartime usage when he defined propaganda as “that art of the branch of lying which consists in very nearly deceiving your friends without quite deceiving your enemies.” F. M. Cornford, Microcosmographia Academica: Being a Guide for the Young Academic Politician, preface to 2nd ed. (Cambridge: Bowes & Bowes, 1922). E. Boyd Barrett, Rome Stoops to Conquer, 79, 93 (New York: Julian Messner, 1935). Paul M. Winter, What Price Tolerance, 135, 337 (Hewlett, NY: All-American Book, Lecture and Research Bureau, 1928); Calvin Coolidge’s Speech in Omaha, as quoted by William Philip Simms, “Kellog Blunders,” Pittsburg Press, 21 (Nov. 16, 1925). One academic explained: “Propaganda . . . represents one mind as standing at a fixed point and endeavoring to bring other minds to the same position.” George A. Coe, Educating for Citizenship: The Sovereign State as Ruler and as Teacher, 56 (New York: Charles Scribner’s Sons, 1932). Similarly, propaganda was defined as “Action having as its purpose the spread of a particular doctrine or a specifically identifiable system of principles. (In use this word has come to infer half-truths, incomplete truths, as well as techniques of a covert nature.)” Report from Norman Dodd, director of research, covering his direction of the staff of the Special Committee of the House of Representatives to Investigate Tax Exempt Foundations for the six-months’ period November 1, 1953–April 30, 1954, at 3 ([1954]). Paul Blanshard later observed that “[p]ropaganda has been defined euphemistically as education with a purpose,” but he rejected this understanding. Paul Blanshard, Personal and Controversial: An Autobiography, 212 (Boston: Beacon Press, 1973). [James Scott Vance], Proof of Rome’s Political Meddling in America, 12 (Washington: Fel-

Notes to Chapter 4 / 351

27.

28.

29.

30.

31.

lowship Forum, 1927); Paul Blanshard, Communism, Democracy, and Catholic Power, 105 (Boston: Beacon Press, 1951); Hugh B. Wilson, “Possessions and Affirmations of Protestantism,” Scottish Rite News Bulletin, 1 (Sept. 1952). Protestants and Other Americans United put it another way, in terms of education: “Catholics operate by fiat. Protestants and Other Americans can only seek to educate.” Thus, the Catholic Church “exercises political control beyond its numerical importance.” “The Catholic Church,” Church and State Newsletter, 1(1): 2 (May 15, 1948). For “propagandists,” see Proof of Rome’s Political Meddling in America, 46 (Washington: Fellowship Forum, 1927). H. C. Morrison, Romanism and Ruin, 147 (Louisville: Pentecostal Publishing Company, 1914); “Well Represented,” New Age, 38: 190 (1930); The Klan in Action: A Manual of Leadership for Officers of Local Klans, 19 (n.p.: 1920s?) (distributed to local klans under a cover letter from Imperial Wizard Hiram W. Evans); Theodore Graebner, The Pope and Temporal Power, 102 (Milwaukee: Northwestern Publishing House, 1929). See also Gustavus Myers, History of Bigotry in the United States, 237 (New York: Random House, 1943). [James Scott Vance], Proof of Rome’s Political Meddling in America, 15, 17–18, 78, 106, 125 (Washington: Fellowship Forum, 1927). Even headlines in the Chicago Daily Tribune warned of such dangers. Arthur Sears Henning, “Catholic Church has Propaganda Mill in Capitol: Maintains Offices, Spends $175,000 Year,” Chicago Daily Tribune (July 18, 1927). Studies in Church-State Relations: The American Way, 25, 27–28 (Washington: Protestants and Other Americans United for Separation of Church and State, 1963). Indeed, “[e]very phase of American life is susceptible to organized Roman Catholic influence,” for they had “built a close- knit and powerful organization.” Ibid., 25. Protestants and other Americans United even echoed earlier nativist slogans, such as “Guardians of Liberty” and “Be True Americans.” Ibid., 59. Theodore Meyer Greene, Charles C. Fries, Henry M. Wriston, and William Dighton, American Council of Learned Societies, Liberal Education Re- examined: Its Role in a Democracy, 31 (New York: Harper & Brothers Publishers, 1943). Propaganda was thus part of the larger problem of indoctrination and threats to independent thought. A combination of the anti-Catholic and broader fears came from Milton Konvitz, who taught a popular class on “American Ideals” at Cornell Law School. Writing in 1960, he observed that when one moved from matters such as the “multiplication table” to questions such as “the quantum theory and biophysics, and you enter the worlds of active controversy,” then “[s]chools among the Communists, the Catholics, the Nazis, the Fascists will treat those as issues of doctrine.” It was a nice touch, to sandwich Catholics between communists and Nazis. He added: “The dogmas and regulations of the churches, the mores directing the ways of a man with a maid, the professions and practices of war, the sanctions of property, are among the most notable of human interests and relations which societies tend to keep taboo against free inquiry and reserve for inculcation.” Thus, the question was which would “prevail, indoctrination or libre examen.” Milton R. Konvitz & Gail Kennedy, The American Pragmatists, 318–19 (1960; Cleveland: World Publishing Company, 1967). Conrad Henry Moehlman, School and Church: The American Way, 97 (New York: Harper & Brothers Publishers, 1944); Frank Swancara, “Catholic Propaganda in History,” New Age, 61: 738 (1953); S.W., “Roman Catholic Propaganda in Tennessee Text Book,” Scottish Rite News Bulletin, 1 (May 1953); Melvin J. Timm, “The New Education,” Scottish Rite News Bulletin, 5 (Apr. 1954). (Timm was a thirty- second-degree mason from Berryville, Arkansas.)

352 / Notes to Chapter 4 32. Gerald Birney Smith, “Making Christianity Safe for Democracy, IV. Christianity and Political Democracy,” Biblical World, 53(4): 408, 24 (1919). 33. Thomas R. Whitney, An Address Delivered . . . at Hope Chapel . . . on the Occasion of the Seventh Anniversary of Alpha Chapter, Order of United Americans, 10 (New York: 1852). Such ideas continued to be urged in the next century, but without political persuasiveness. For example, the nativist editor Gilbert Nations declared in his 1917 tract Papal Sovereignty: “disenfr a nchisemen t the only adequate r emedy.” Before enjoying the franchise, a foreigner had to “sever his identity with the nation to which he previously belonged,” and for a Catholic this meant “severing entirely his connection with the political empire which the pope rules with supreme power.” Gilbert O. Nations, Papal Sovereignty: The Government within Our Government, 179, 180, 182 (Cincinnati: Standard Publishing Company 1917). See also William Lloyd Clark, Messages of Love and Hate, 7 (Milan, IL: Rail Splitter Press, [1926?]). 34. Elijah Lucas, Shall Liberty Die? or Patriots to the Front, 43 (n.p.: 1897). Similarly it was asked “Why Protestants Should Hold the Offices in the Gift of the American People.” J. Scott Carr, The Devil in Robes; or, The Sins of Priests, 297 (St. Louis: Continental Bible House, n.d.). 35. Elijah Lucas, Shall Liberty Die? or Patriots to the Front, 43 (n.p.: 1897). Similarly, J. Scott Carr wrote about “Our Common Schools, and Why Catholics Should Not Be Teachers.” J. Scott Carr, The Devil in Robes; or, The Sins of Priests, 273 (St. Louis: Continental Bible House, n.d.). Some exclusion of Catholics from teaching in public schools lasted up through the 1920s. Religious Liberty in the U.S. Today: A Survey of the Restraints on Religious Freedom, 13 (New York: American Civil Liberties Union, 1939). 36. M. R. Grant, Americanism vs. Roman Catholicism, 6–7 (Gulfport, MS: Truth Publishing Co., 1923). 37. Reuben Maury, The Wars of the Godly, 279 (New York: Robert M. McBride & Company, 1928); H. W. Evans, The Rising Storm, chapters 8 & 13 (Atlanta: Buckhead Publishing Co., 1930). Maury, by his own confession, was a member of the KKK—the “University Klavern, Realm of Virginia.” Reuben Maury, The Wars of the Godly, 11 (New York: Robert M. McBride & Company, 1928). For the acid attack, see David Beasley, Without Mercy: The Stunning True Story of Race, Crime, and Corruption in the Deep South, 40 (New York: St. Martin’s Press, 2014); Kenneth T. Jackson, The Ku Klux Klan in the City, 1915–1930, 71 (Chicago: Ivan R. Dee, 1992). 38. H. W. Evans, The Rising Storm, 21, 23–24, 141 (Atlanta: Buckhead Publishing Co., 1930); see also id., 25. 39. Ibid., 176, 318. 40. Ibid., 335–37. 41. Ibid., 337, 341. 42. Ibid., 337–38, 341–42. He also wrote of the need to codify “[t]he rights of the clergy to organized political authority over the members of their churches.” Ibid., 338. 43. H. W. Evans, The Public School Problem in America, 4 (n.p.: KKK, 1924). 44. Frederick Paul Keppel, “Educational Foundations,” in Education for Adults and Other Essays, 89 (New York: Columbia University Press, 1926). 45. Frederick Paul Keppel, The Foundation: Its Place in American Life, 46 (New York: Macmillan Company, 1930). For a similar argument four years earlier, see Frederick Paul Keppel, “Educational Foundations,” in Education for Adults and Other Essays, 92 (New York: Columbia University Press, 1926). 46. Frederick Paul Keppel, “Educational Foundations,” in Education for Adults and Other Essays, 92–93 (New York: Columbia University Press, 1926).

Notes to Chapter 4 / 353 47. An Act to Reduce Taxation, to Provide Revenue for the Government, and for Other Purposes, §32 (Aug. 27, 1894), Statutes at Large, 28: 556; An Act to Increase the Revenue, and for Other Purposes, §11(a) (Sept. 8, 1916), ibid., 39: 766; An Act to Provide Revenue to Defray War Expenses, and for Other Purposes, §1201(2) (Oct. 3, 1917), ibid., 40:330. See also Tariff Act of 1913, Public Law 63-16 §II(G), 38 Stat. 114, 172 (for a similar exemption from the tariff); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 1, 9 (2003); Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 95–96 (Oxford: Oxford University Press, 2011). 48. Solicitor’s Memoranda, S. 455 (Aug. 28, 1918); similarly, S.200 (May 16, 1918); both quoted in S. 1362, Cumulative Bulletin, 2: 152, 154 (1920). For the American common law rule on charities, see Edward W. Wachtel, “David Meets Goliath in the Legislative Arena: A Losing Battle for an Equal Charitable Voice,” San Diego Law Review, 9: 944, 947–48 (1972); John Michael Clear, “Political Speech of Charitable Organizations under the Internal Revenue Code,” University of Chicago Law Review, 41: 352, 267–68 (1974); Anne Berrill Carroll, “Religion, Politics, and the IRS: Defining the Limits of Tax Law Controls on Political Expression by Churches,” Marquette Law Review, 76: 217, 252–53 (1992); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 1, 7–8 (2003); Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 435–36 (Washington: U.S. Government Printing Office, 1987). 49. Reg. 45, Art. 517, in Treasury Decisions under Internal-Revenue Laws of the United States, 21: 285 (1920). 50. Allen Hill Autrey, Warning Signals or Romanism an American Peril, 126 (Little Rock: Doctrinal Interpreter, 1911); The Ku Klux Klan Presents Its View of the Public Free School, 2 (n.p.: n.d. [early 1920s]); Reg. 45, Art. 517, in Treasury Decisions under InternalRevenue Laws of the United States, 21: 285 (1920). As put by a New York Times review, “Education and propaganda seem . . . contradictions in terms and mutually exclusive.” “Propaganda, That Hydra-Headed Menace of Our Time: Professor Lumley’s Sweeping Study Views Its Function as the Opposite of Education. The Propaganda Menace. By Frederick E. Lumley,” New York Times, BR3 (Apr. 23, 1933). For the nineteenth-century nativist literature, see, for example, Edward D. Mansfield, American Education: Its Principles and Elements, 32, 77 (New York: 1851). 51. Solicitor’s Memoranda, S. 1362, Cumulative Bulletin, 2: 152, 154 (1920). 52. Treasury Department, Bureau of Internal Revenue, S. 1362, Cumulative Bulletin, 2: 152, 154 (1920), discussed by Ward L. Thomas & Robert Fontenrose, “Education, Propaganda, and the Methodology Test,” 83, 84, IRS EO CPE Text, 1997. 53. Slee v. Commissioner, 42 F.2d 184 (2nd Cir. 1930). Learned Hand wrote: “Political agitation as such is outside the statute, however innocent the aim, though it adds nothing to dub it ‘propaganda,’ a polemical word used to decry the publicity of the other side.” Ibid. See Erik W. Stanley, “LBJ, the IRS, and Churches: The Unconstitutionality of the Johnson Amendment in Light of Recent Supreme Court Precedent,” Regent University Law Review, 24: 237, 242 (2012). 54. Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 1, 19–20 (2003); see also Edward McGlynn Gaffney Jr., “On Not Rendering to Caesar: The Unconstitutionality of Tax Regulation of Activities of Religious Organizations Relating to Politics,” DePaul Law Review, 1: 23 (1990).

354 / Notes to Chapter 4 55. Congressional Record, 78: 5861 (1934); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 19–23 (2003). 56. Congressional Record, 78: 5861 (1934); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 23 (2003). 57. Congressional Record, 78: 5861 (1934); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 21–23 (2003). 58. Congressional Record, 78: 5861 (1934); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 21–23 (2003). 59. “The Taxation of Propaganda,” Chicago Daily Tribune (May 10, 1934). 60. Statement of William J. Lehrfeld, Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations, Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives,100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 142 (Washington: U.S. Government Printing Office, 1987); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 23 (2003). 61. In 1929, Reed argued in the Senate that “all Americans of the ‘old stock’ should support the National Origins Clause of the Immigration Bill.” Letter from Georgiana H— [indecipherable] (June 3, 1929), Box 5, Charles C. Marshall Papers, Library of Congress (sending a copy of the speech to Marshall). For Reed’s masonic affiliation, see Religious and Fraternal Directory of Your National Government, 30, 32 (Washington: National Farm News, [1926]). According to a count by the Klan, masons in the early 1920s amounted to two-thirds of senators and half of representatives. Douglas J. Slawson, The Department of Education Battle, 1918–1932: Public Schools, Catholic Schools, and the Social Order, 122 (South Bend: University of Notre Dame Press, 2005). Reed is said to have been a member of Fellowship Lodge No. 679, Pittsburgh, and a Royal Arch Mason. He rejected anti-Catholic political attacks, such as the condemnation of Al Smith by Methodist Episcopal bishop Adna W. Leonard. “Bishop’s Anti-Catholicism Deplored by Protestants—Senator Reed of Pennsylvania and Dr. Butler of Columbia Condemn It,” Bulletin of the Catholic Laymen’s Association of Georgia, 5 (Jan. 22, 1927), http://scr.stparchive.com/Archive/SCR/SCR01221927p05.php. CHAPTER FIVE

a. b. 1.

2.

3. 4.

“Causes of Religious Tensions Discussed,” New Age, 62: 211, 212 (1954). Bagdasar L. Baghdigian, “Validating Prejudice,” New Age, 42: 86 (1934). Richard W. Garnett, “A Quiet Faith? Taxes, Politics, and the Privatization of Religion,” Boston College Law Review, 42: 771 (2001) (regarding privatization of religion); Edward McGlynn Gaffney Jr., “Hostility to Religion, American Style,” DePaul Law Review, 42: 363, 371 (1992) (regarding exclusion of religious convictions from public life). John T. McGreevy, “Thinking on One’s Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History, 84: 97, 125 (1997); John T. McGreevy, Catholicism and American Freedom, 169 (New York: W. W. Norton & Company, 2003) (both regarding liberal concerns about Catholic segregation). John T. McGreevy, “Thinking on One’s Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History, 84: 97, 125 (1997). Connecticut Aroused! Great Demonstration at New Haven, Speech of Hon. Hiram Ketchum, 9 (n.p.: 1856); “Public Schools v. Private and Parochial Schools,” Scottish Rite News Bulletin, 4 (Apr. 1954), quoting Henry George in 1888.

Notes to Chapter 5 / 355 5. 6.

7. 8. 9. 10.

11. 12. 13. 14.

15.

“Reverence for Authority,” Kentucky Irish American (Louisville) (Sept. 9, 1916), quoting Rev. John J. Wynne, SJ, editor of the Catholic Encyclopedia. “The Public School Question Once More,” New Age, 28: 406 (1920); “Supreme Council 1921,” New Age, 38: 1 (1930); The Ku Klux Klan Presents Its View of the Public Free School, 2–3 (n.p.: n.d. [early 1920s]). Another Klan pamphlet declared: “Public school education is democratic education.” H. W. Evans, The Public School Problem in America, 16 (n.p.: KKK, 1924). Dr. Eli J. Forsythe, “Michigan School Amendment: The Real Issue,” in The School Plot Unmasked, 18 (Milan, IL: Rail Splitter Press, [mid-1920s]). Ibid., 17–19. Ibid., 18. The regrets about Pierce persisted for decades. Two years after the decision, Kuhn complained: “Some sympathy has been secured for the parochial school by those who say ‘if you deprive us of Parochial Schools you take away our liberty of teaching religion to our children’— w hat a n a bsolu t ely senseless ple a —are not the people who send their children to public schools as interested in religious training as the parochial school supporters?” He therefore thought that “American public schools . . . are the only schools that should be permitted in our ‘land of the free’ which is altogether too free now in its toleration of parochial, private and foreign language grade schools of any creed, nationality or sect.” I. N. Kuhn, Danger Ahead: Stop! Look! Listen!, 373, 383–84 (Columbus, KS: I. N. Kuhn, 1927). A 1930 article in the New Age observed that, notwithstanding the legal right of the Catholic Church “to maintain a parochial school system,” there remained the question “whether such a right, if exercised too freely, may not work harm to all concerned.” “A Divisive Factor in Our National Life,” New Age, 38: 544 (1930). In 1949, Professor John Childs of Columbia Teachers College urged reconsideration of Pierce and that children should receive at least half of their education in public schools. John L. Childs, “American Democracy and the Common School System,” Jewish Education, 21: 32–37 (1949). Even in the 1950s, commentary in the New Age observed the tension between “the right of the parent to determine the kind of education his child should have as against an educational program that would make for national unity.” S.W., “Book on Education is Target of Hierarchy,” New Age, 63: 309 (1955). I. N. Kuhn, Danger Ahead: Stop! Look! Listen!, 335, 370 (Columbus, KS: I. N. Kuhn, 1927). Ibid., 371–72. Ibid., 355, 370–71. Charles Elliott, Delineation of Roman Catholicism: Drawn from the Authentic and Acknowledged Standards of the Church of Rome, 2: 55 (New York, 1851); The Truth Shall Make You Free, added commentary on back flyleaf by John H. Cowles (Washington: Supreme Council 33°, Southern Jurisdiction, 1930). The Scottish Rite News Bulletin observed in 1955 that it had “on numerous occasions pointed out the divisive influence of Roman Catholic educational policies and practices, making particular reference to parochial schools as these have been established in competition with the public schools of this country.” N.S.M., “Divisive,” Scottish Rite News Bulletin, 6 (May 1955). Paul Blanshard, American Freedom and Catholic Power, 60 (1949; Boston: Beacon Press, 1951); The Catholic Church and Politics: A Discussion on a Vital Issue Presented by the Harvard Law School Forum, 31 (Cambridge: Gannett House, 1951). Protestants and

356 / Notes to Chapter 5

16.

17.

18.

19. 20. 21.

22. 23.

Other Americans United (POAU) declared that it did not “believe in segregating our schools by religious faith. The advantage of our American public school system is that it serves all creeds without distinction.” Lawrence P. Creedon & William D. Falcon, United for Separation: An Analysis of POAU Assaults on Catholicism, 77 (Milwaukee: Bruce Publishing Company, 1959). Glenn L. Archer & Albert J. Menendez, The Dream Lives On: The Story of Glenn L. Archer and Americans United, 79 (Washington: Robert B. Luce, 1982). From this perspective, they emphasized that “Protestant culture. . . . has given the complexion to the country, entered our legislation, sociology and economics.” Ibid., 80. Conrad Henry Moehlman, School and Church: The American Way, ix, 82 (New York: Harper & Brothers Publishers, 1944); Joseph L. Blau, “Democracy and Parochial Schools,” Jewish Frontier, 21: 13 (1954), as quoted by John T. McGreevy, Catholicism and American Freedom, 186 (New York: W. W. Norton & Company, 2003). The Scottish Rite New Bulletin compared the segregation of Catholics to the closed society of communist Russia: “It would appear that the entire drive of the Roman Church authorities is toward making their followers members of a completely closed clan and affording them a minimum of opportunity to become familiar with any social, moral or religious philosophy not colored or diluted with Romanism. The similarity of this policy to that of the men of the Kremlin as it affects the serfs of Communism has seldom been more strikingly demonstrated.” N.S.M., “Divisive,” Scottish Rite News Bulletin, 6 (May 1955). Conrad Henry Moehlman, The Wall of Separation between Church and State, 162 (Boston: Beacon Press, 1951). He added: “Children are entitled to a religion which is simple and understandable, and such an interpretation of life has always been in the curriculum of the common school.” Ibid., 162–63. James Hastings Nichols, Democracy and the Churches, 253–54 (Philadelphia: Westminster Press, 1951). Ibid. James B. Conant, “Unity and Diversity in Secondary Education: Address before a Meeting of the American Association of School Administrators” (Apr. 7, 1952), in My Several Lives: Memoirs of a Social Inventor, 665, 667 (New York: Harper & Row, 1970). Ibid., 665, 670. For example, Kuhn had warned: “The withdrawal from the public schools of more and more of the children of those already Americanized greatly enhances the difficulty of making a unity of this inchoate mass of human beings that we call America.” I. N. Kuhn, Danger Ahead: Stop! Look! Listen!, 364 (Columbus, KS: I. N. Kuhn, 1927). Conant similarly warned that private schools would “draw away from the public school youth of a community and thus weaken the integrating force of the comprehensive public school.” James B. Conant, My Several Lives: Memoirs of a Social Inventor, 472 (New York: Harper & Row, 1970). Kuhn, moreover, had written that private schools revealed “the recrudescence in this country of the aristocratic, sectarian, exclusive traditions of the older European civilization—attitudes incompatible with belief in democracy, with groupings determined by individual ability and capacity independent of inherited class or religious associations.” I. N. Kuhn, Danger Ahead: Stop! Look! Listen!, 364 (Columbus, KS: I. N. Kuhn, 1927). Indeed, “Interest in the schools founded in the spirit of exclusiveness and detachment is a distraction from our preponderating interest in schools founded in the spirit of democracy.” Ibid., 335–36. Conant similarly complained about “the ‘snob aspect’ of some of these new independent schools.” James B. Conant, “Unity

Notes to Chapter 5 / 357

24. 25. 26. 27.

28.

29.

and Diversity in Secondary Education: Address before a Meeting of the American Association of School Administrators” (Apr. 7, 1952), in My Several Lives: Memoirs of a Social Inventor, 668 (New York: Harper & Row, 1970). This is not to say Conant had read Kuhn’s book but rather that he was familiar with nativist tropes of the sort that appeared there. “Dual School Rise Is Attacked Anew,” New York Times, 25 (Apr. 5, 1952). James B. Conant, My Several Lives: Memoirs of a Social Inventor, 466–67 (New York: Harper & Row, 1970). S.W., “Roman Catholics Condemn Uniformity of Thought,” New Age, 62: 461 (1954). Anxieties about this sort of segregation have persisted. For example, they remained a concern of POAU in the sixties. Under the heading of “National Unity,” POAU worried in 1963 about opposition to attendance in “neutral or mixed schools” and about the need to “remove barriers which would separate and isolate American citizens from one another.” Studies in Church-State Relations: The American Way, 26 (Washington: Protestants and Other Americans United for Separation of Church and State, 1963). In his concurring opinion in Kiryas Joel v. Grumet, Justice Stevens expressed concern about religious “segregation.” Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 711 (1994). Republicans did not protest about separation of church and state when Rev. David Austin urged Americans to vote for the “object designated by heaven”—the divinely chosen man whose inauguration would introduce the “New Jerusalem-day” and the “unloosing of the bonds of nature and of grace.” Most Republicans surely did not believe, as Austin told Jefferson, that it was “the Empire of the Redeemer, in a covered Chariot, that awaits your suffrage,” but they did not reject this sort of religious support for their candidate. Similarly, the next year, when the Baptist minister John Leland organized the farmers of Cheshire, Massachusetts, to produce a giant 1,235-pound cheese and brought it to Washington, preaching along the way, Jefferson received him at the White House, where Leland proclaimed that “the supreme Ruler of the Universe . . . has raised up a Jefferson at this critical day to defend Republicanism and to baffle the arts of Aristocracy.” Jefferson reciprocated by lauding the cheese, the people of Berkshire, and his “reverend and most respected friend”—at which point the president proceeded to “have this monster cut.” [David Austin], The Dawn of Day, Introductory to the Rising Sun, Whose Rays Shall Gild the Clouds; and Open to a Benighted World the Glowing Effulgence of That Dominion, That Is to Be Given to the People of the Saints of the Most High. In Nine Letters, 17–19, 25 (New Haven: 1800); James H. Hutson, Religion and the Founding of the American Republic, 84–85, 119, n. 45 (Washington: Library of Congress, 1998), citing A. P. C. Griffin, “Issues of the Press in 1800–1802,” in Records of the Columbia Historical Society, 4 (1901), 58; Alexandria Advertiser (July 14, 1801); National Intelligencer (June 29 & July 1, 1801); C. A. Browne, “Elder John Leland and the Mammoth Cheshire Cheese,” Agricultural History, 18: 145, 150–51 (1944). See also Michael Lienesch, “The Role of Political Millennialism in Early Modern Nationalism,” Western Political Quarterly, 36: 458 (1983). Tunis Wortman, “A Solemn Address to Christians and Patriots” (New York: 1800), in American Political Sermons of the Founding Era, 1730–1805, 1482, 1486, ed. Ellis Sandoz (Indianapolis: Liberty Press, 1991); Abraham Bishop, Oration Delivered in Wallingford on the 11th of March 1801, before the Republicans of the State of Connecticut, at their General Thanksgiving, for the Election of Thomas Jefferson, 88 (New Haven: 1801); Philip Hamburger, Separation of Church and State, 155–62 (Cambridge: Harvard University Press, 2002).

358 / Notes to Chapter 5 30. Equal Rights in Religion: Report of the Centennial Congress of Liberals, 98–99 (Boston: National Liberal League, 1876); B. F. Underwood, “The Practical Separation of Church and State,” in ibid., 95, 97, 99. 31. “Political Aggression,” Protestant Magazine, 5: 137 (1913). 32. H. W. Evans, The Rising Storm, 337–38 (Atlanta: Buckhead Publishing Co., 1930); “Clergy Ask Church to Eschew Politics,” New York Times, 17 (June 12, 1930). 33. George P. Rutledge, Center-Shots at Rome: A Series of Lectures on Catholicism, 18 (Cincinnati: Standard Publishing Company, 1914); Making America Catholic by Order of Pope Pius X: Roman Catholic Principles as Defined by Popes, Prelates and Priests, 64 (Saint Paul: A. H. Beach, 1924). M. R. Grant expostulated that the Catholic hierarchy “is NOT a church in the true sense of the word nor a religious institution.” M. R. Grant, Americanism and Roman Catholicism, preface to 3rd ed. (Gulfport: Truth Publishing Company, 1923). Paul Blanshard later wrote: “When a church enters the arena of controversial social policy and attempts to control the judgment of its own people (and of other people) on foreign affairs, social hygiene, public education, and modern science, it must be reckoned with as an organ of political and cultural power.” The “Catholic problem” thus “is not primarily a religious problem: it is an institutional and political problem,” for it “is a matter of the use and abuse of power by an organization that is not only a church but a state within a state, and state above a state.” He added, “[I]t is an understatement to say that the Roman Catholic Church is in politics. It is political.” Paul Blanshard, American Freedom and Catholic Power, 3–4, 43 (1949; Boston: Beacon Press, 1949). 34. Marshall’s writings elicited congratulatory letters from leading nativists, including Scottish Rite Grand Commander John Cowles, the Protestant editors Karl and Gilbert Nations, and Imperial Wizard Hiram Evans. Marshall, however, was unaffiliated with their organizations, and there was some caution on both sides about masonic and Klan publications of his writings against Al Smith. When Marshall sought to have his exchange with Al Smith reprinted in the Builder, the editor of this masonic periodical explained: “Our desire is to eliminate the personal element and to consider it solely along . . . dispassionate lines.” And the succeeding editor declined to go ahead with publication, explaining that masons had “an exceedingly strong prejudice against anything of a religious or political character . . . being mentioned in connection with Freemasonry”—this being an “extension of our fundamental rule that such questions are never to be touched on in the lodges.” Letter from F. H. Littlefield to Charles C. Marshall (Apr. 18, 1927), Box 1, Charles C. Marshall Papers, Library of Congress; Letter from R. J. Meekren to Charles C. Marshall (July 5, 1927), Box 2, Charles C. Marshall Papers, Library of Congress. Later, when Evans sought permission to reprint one of Marshall’s speeches in the Kourier and in a Klan pamphlet, the former lawyer expressed satisfaction that Evans liked his talk but carefully added: “The fact that you did approve it and that at the same time it contained a very glowing tribute to the Roman Catholic Church makes your word all the more gratifying to me. The Roman issue, I believe, can be settled without acrimony.” Marshall added that it was essential for him to maintain a position “very independent” of “all other interests.” Enclosing another address, he wrote, “With The Kourier as with other journals throughout the country I hereby waive my copyright so that these addresses may be reprinted”—thus permitting them to circulate “with absolutely no reference to myself.” But he said nothing about authorizing the Klan pamphlet. Letter from H. W. Evans to Charles C. Marshall (March 28, 1928), Box 5, Charles C. Marshall Papers, Library of Congress (regarding publication of

Notes to Chapter 5 / 359

35.

36.

37.

38.

Marshall’s address in Boston on “The Independence of the Holy See”); Letter from Charles C. Marshall to H. W. Evans (Apr. 2, 1928), Box 5, Charles C. Marshall Papers, Library of Congress. Evans wrote to Marshall to thank him for the “manifest service you have rendered your country,” complimenting him that “no greater public service has been done . . . since Abraham Lincoln defined the slavery issue in the Freeport Question.” Letter from H. W. Evans to Charles C. Marshall (June 7, 1927), Box 1, Charles C. Marshall Papers, Library of Congress. The next year, he congratulated Marshall on his “masterly presentation of the dangers inherent in the politico- religious organization of the Roman Church.” Letter from H. W. Evans to Charles C. Marshall (Mar. 28, 1928), Box 5, Charles C. Marshall Papers, Library of Congress. Evans was the more eager correspondent and twice sent Marshall typescripts of the imperial wizard’s forthcoming articles, which relied on Marshall’s writing. Letter from H. W. Evans to Charles C. Marshall (June 7, 1927), Box 1, Charles C. Marshall Papers, Library of Congress (sending typescript of H. W. Evans, “The Catholic Question Unanswered,” written for Atlantic Monthly); H. W. Evans, “The Religious Issue,” typescript, Box 3, Charles C. Marshall Papers, Library of Congress. See also H. W. Evans, “Alienism in the Democracy,” Article III, “ ‘For the People’ or for the Pope?” Kourier Magazine, 3(8): 1 (July 1927) (discussing the “desirable and timely” debated between Marshall and Smith). Charles C. Marshall, The Roman Catholic Church in the Modern State, 214, 257 (New York: Dodd, Mead & Company, 1928). Half a decade later, in an academic paper, he explained that he distinguished between the political activities of “ordinary voluntary and private associations” and of the Catholic Church, which claimed “quite a different status” by asserting a “religious supremacy, under the penalty of damnation . . . in lieu of the free conscience of the citizen.” Incidentally, he viewed “the religious society or church” as “merely the religious phase of the generic idealistic society.” Charles C. Marshall, The Historical Relation of Law and Religion (In Its American Aspect), 26, 32–33 (Chicago: University of Chicago, 1933). Patrick L. O’Daniel, “More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches,” Boston College Law Review, 42: 733 (2001); James D. Davidson, “Why Churches Cannot Endorse or Oppose Political Candidates,” Review of Religious Research, 40: 16 (1998); Deirdre Dessingue Halloran & Kevin M. Kearney, “Federal Tax Code Restrictions On Political Activity,” Catholic Law Journal, 38: 105 (1998); Judith E. Kindell & John Francis Reilly, Election Year Issues, http://www.irs.gov/pub/irs-tege/eotopici02.pdf; Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 437 (Washington: U.S. Government Printing Office, 1987). Patrick L. O’Daniel, “More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches,” Boston College Law Review, 42: 769 (2001); Letter from Rev. Lewis L. Shoptow (undated), in ibid., 748; The Texas Country Editor: M. M. Baggarly Takes a Grass- Roots Look at National Politics, 96, ed. Eugene W. Jones (July 8, 1954) (Cleveland: World Publishing Company, 1966); see also Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 114 (Oxford: Oxford University Press, 2011). Patrick L. O’Daniel, “More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches,” Boston College Law Review, 42: 763–65 (2001); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review,

360 / Notes to Chapter 5

39. 40.

41.

42.

43. 44.

45. 46. 47.

69: 28 (2003); Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations, Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 438 (Washington: U.S. Government Printing Office, 1987). Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 28–29 (2003); 26 U.S.C. §501(c)(3) (quoting Johnson on “some foundations”). Patrick L. O’Daniel, “More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches,” Boston College Law Review, 42: 765–67 (2001). Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 1, 69–70 (2003); Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 115–16 (Oxford: Oxford University Press, 2011). O’Daniel writes: “Johnson saw a cabal of national conservative forces, led by tax-exempt educational entities fueled by corporate donations, arrayed against him and wanted to put a stop to the meddling of these foreign interlopers.” Patrick L. O’Daniel, “More Honored in the Breach: A Historical Perspective of the Permeable IRS Prohibition on Campaigning by Churches,” Boston College Law Review, 42: 768 (2001). On personal pique, see, for example, Anne Berrill Carroll, “Religion, Politics, and the IRS: Defining the Limits of Tax Law Controls on Political Expression by Churches,” Marquette Law Review, 76: 217, 250 (1992). After hearing from Johnson that the relevant Senate committee members found the amendment “acceptable,” the Senate took the amendment (without debate) to its conference with the House, and in the autumn (again without debate) Congress adopted it as part of the new Internal Revenue Code. Congressional Record, 100: 9604 (1954); Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations, Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 348 (Washington: U.S. Government Printing Office, 1987). Justin D. Fulton, Washington in the Lap of Rome, 255 (Boston: Tremont Temple, 1888). “Scottish Rite Membership Rallies to the Call,” Arkansas Teacher, 8: 18 (Dec. 1920); Scottish Rite Clip Service, No. 7 (Sept. 17, 1923); “Education the Bed-Rock of Democracy,” Guardian of Liberty, 7: 124 (1920). The 1920 resolution was adopted at a special meeting of the Supreme Council in May 1920. Echoing the Supreme Council, masons and their allies urged: “Mix the children of the foreign born with those of the native born. Mix the sons of the rich with the sons of the poor. Mix those with prejudice in the public school melting pot for a few years while their minds are plastic. . . . A divided school . . . can no more succeed than a divided nation.” “Masons Back School Bill of Oregon State,” Guardian of Liberty, 8: 120 (1922). Masonry and Americanism, 78, 93 (Washington: Masonic Service Association of the United States, 1924). H. W. Evans, The Public School Problem in America, 21 (n.p.: KKK, 1924); “A Victory,” New Age, 41: 456 (1933). Proceedings of the Most Worshipful Grand Lodge Free Accepted Masons of the State of Wisconsin, 78: 148 (1922). After the Supreme Council adopted the resolution in May 1920, the Grand Lodge of Oregon followed in June. See New Age, 28: 380 (1920); “Attention Masons,” Oregon Voter: Magazine of Citizenship—for Busy Men and Women,

Notes to Chapter 5 / 361

48. 49.

50. 51.

52.

53.

54.

40: 216 (Portland, OR) (Aug. 5, 1922). For the initial publication of the Supreme Council’s declaration in the November issue of the New Age, see New Age, 29: 497 (1921). This action by the New Age was probably a result of the efforts of the Grand Lodge of Oregon. In June 1921 the lodge worried that “a certain organized power” was engaged in a “concerted action having for its end the control and management of our entire educational system,” and it therefore recommended that the incoming Grand Master should “use his full influence and authority, to bring this important message to the attention of every member of this Grand Jurisdiction.” “Again the Grand Lodge of Oregon Speaks,” New Age, 29: 381 (1921). “A Victory,” New Age, 41: 456 (1933); Conrad Henry Moehlman, The Wall of Separation between Church and State, 162, 167 (Boston: Beacon Press, 1951). Brown v. Board of Education of Topeka, 347 U.S. 483, 493 (1954). For the limited meaning of “equal protection,” see Philip Hamburger, “Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights,” Supreme Court Review, 295 (1992). “Supreme Court Rules on Segregation,” Scottish Rite News Bulletin, 7 (July 1954); also published in New Age, 62: 393 (1954). “Case for Segregation Strengthened,” Scottish Rite News Bulletin, 4 (Sept. 1954), and New Age, 62: 518 (1954), citing the Roman Catholic Central California Register (Colo.) (June 18, 1954). “Case for Segregation Strengthened,” Scottish Rite News Bulletin, 4 (Sept. 1954), and New Age, 62: 518 (1954), citing the Roman Catholic Central California Register (Colo.) (June 18, 1954). In 1959, the Scottish Rite published what became a widely distributed pamphlet entitled Our Public Schools. It was written partly by Willard Givens, the Supreme Council’s director of education, a self-described socialist, and the longtime executive secretary of the National Education Association, and it emphasized that the public school “serves all.” Such a school “brings together all the children of a community, regardless of the economic or social status of their families, and without discrimination because of their cultural backgrounds”—a laudable thought, except that it carefully said nothing about not discriminating on grounds of race. Indeed, the pamphlet concluded with a section titled “Equality” that emphasized equal opportunity, again without mentioning race. All of the illustrations showed white boys and girls. Willard E. Givens & Belmont M. Farley, Our Public Schools, 55 (Washington: Supreme Council 33°, 1959). The pamphlet was one of seven that were printed in 5.5 million copies and distributed as supplemental reading in social studies and history classes in the sixth to twelfth grades in public schools. “The Reminiscences of Dr. Willard E. Givens,” typed transcript of interview conducted in 1968, 62–63, in Oral History Research Office, Columbia University, 1980. Code of Ethics of the National Education Association of the United States, 3 (n.p.: 1952). After 1954 the NEA spent years “cautiously straddling the fence, maintaining a handsoff, wait-and-see attitude.” A joint committee of the NEA and the black American Teachers Association agreed on only minimal “innocuous” steps. Patrick J. Groff, “The NEA and School Desegregation,” Journal of Negro Education, 29: 181, 182–84 (1960); Rolland Dewing, “The National Education Association and Desegregation,” Phylon, 30: 109, 112–13 (1969). James Bryant Conant, Shaping Education Policy, 38–39 (New York: McGraw-Hill Book Company, 1964).

362 / Notes to Chapter 5 55. Ibid., 39–40. 56. As put by J. Richard Sneed, Americans needed to “achiev[e] unity in the midst of diversity. J. Richard Sneed, “Democracy’s Crucial Area,” New Age, 62: 398 (1954). 57. For the role of specialization in the popularity of separation of church and state, see Philip Hamburger, Separation of Church and State, 489–91 (Cambridge: Harvard University Press, 2002). CHAPTER SIX

1.

2. 3.

4.

5.

6.

7.

Ann M. Murphy, “Campaign Signs and the Collection Plate—Never the Twain Shall Meet?” Pittsburgh Tax Review, 1: 35, 54 (2003). Emphasizing the nonpartisanship and thereby suggesting neutrality, Murphy writes: “Both sides of the political fence were disturbed by the potential of nonprofit groups to wield political power.” Ibid. More to the point is the suggestion of Peter Berger and Richard Neuhaus that although accusations of subversion against idealistic associations come from across much of the political spectrum, they nonetheless are profoundly discriminatory. Peter L. Berger & Richard John Neuhaus, To Empower People: The Role of Mediating Structures in Public Policy, 34–35 (1977; Washington: American Enterprise Institute, 1981). Louis Dow Sisco, “Political Nativism in New York State,” 41, in Studies in History, Economics and Public Law, 12: 199, 239 (New York: Columbia University Press, 1901). C. A. Windle, Is the Catholic Church the Deadliest Menace to Our Liberties and Our Civilization? Reply to Thomas E. Watson, 18 ([Chicago]: Iconoclast Publishing Company, 1912); H. W. Evans, The Rising Storm, 344 (Atlanta: Buckhead Publishing Co., 1930). Religious and Fraternal Directory of Your National Government, 32 (Washington: National Farm News, [1925–26]). According to a count by the Klan, Masons in the early 1920s amounted to two-thirds of senators and half of representatives. Douglas J. Slawson, The Department of Education Battle, 1918–1932: Public Schools, Catholic Schools, and the Social Order, 122 (South Bend: University of Notre Dame Press, 2005). The Klan, the Scottish Rite, and the NEA campaigned for a federal department of education. Ibid. Slawson argues that the Scottish Rite sought to distance itself from the Klan, citing how the Supreme Council in 1923 cut off any direct connection with the Fellowship Forum. Ibid., 114. But the Scottish Rite’s connection to the Klan is a complicated question, and the Scottish Rite’s response to the Fellowship Forum does not mean that cooperation with the magazine or the Klan ended. On the contrary, masonry thrived on informal relationships, and institutional or otherwise overt political alliances were emphatically contrary to masonic ideals. In the case of the Klan, there was much overlap in membership, and indirect connections seem to have flourished. H. W. Evans, The Rising Storm, 344 (Atlanta: Buckhead Publishing Co., 1930); George W. Parker, “Why Public Schools?” New Age, 61: 280 (1953). Such complaints were familiar nativist fare. In response to Catholic arguments opposing a state monopoly over education and favoring the freedom to choose private religious education, the Rail Splitter Press published an article called “Treasonable Teachings against Our Public Schools,” in The School Plot Unmasked, 6 (Milan, IL: Rail Splitter Press, [mid-1920s]). “The Subversive,” Church and State: A Monthly Review, 6: 4 (Apr. 1953). This was reprinted as late as the 1970s in “Separation of Church and State,” 40, in Robert B. Watts, Our Freedom Documents (Washington: Supreme Council 33°, [early 1970s]). Watts was the director of education for the Southern Rite. “Bishop Oxnam Featured in POAU National Meeting January 27, 1949,” Church and

Notes to Chapter 6 / 363 State Newsletter, 1(5): 1 (Dec. 1948). In an article titled “Catholic Propaganda,” Protestants and Other Americans United explained that “[e]cclesiastical totalitarianism is as menacing as political totalitarianism.” “Catholic Propaganda,” Church and State Newsletter, 1(2): 1 (July 10, 1948). Thus, “the Roman Catholic hierarchy’s legislative goals” would “change the U.S. from a democracy to a clerical dictatorship.” “Canon Law Clashes with U.S. Law, Poteat, Blanshard Tell Conference,” Church and State Newsletter, 4(2): 1, 3 (Feb. 1951). 8. T. W. Callaway, Romanism vs Americanism, 6–7 (Atlanta: Index Printing Co., 1923); Harold R. Rafton, The Roman Catholic Church and Democracy: The Teachings of Pope Leo XIII on Church and State, 3 (Boston: Beacon Press, 1951). Interestingly, Rafton’s pamphlet was distributed by the POAU. And my copy was sold under the rubberstamped imprint of the Friendship Liberal League, Inc., “Freethought Booksellers” of Philadelphia. Already by March 1951 it was in its seventh printing. Earlier, in 1910, Thomas Watson wrote that “[f]or the individual Roman Catholic who finds happiness in his faith, I have no word of unkindness. Some of my best friends are devout believers in their ‘Holy Father.’ . . . The Roman Catholic orga niz a tion is the object of my profoundest detestation— not the belief of The Individual.” William W. Brewton, The Life of Thomas E. Watson, 325 (Atlanta: published by the author, 1926), quoting August 1910 issue of Watson’s Jeffersonian Magazine. In 1912, the Menace reminded its readers “that we have no ill will whatever for a man simply because he is a Roman Catholic.” On the contrary, “The writer of this article himself has Catholic relatives and Catholic friends,” and, for these and other members of “the laity,” he had feelings of “sympathy,” for they were being crushed by “the Roman Catholic political machine,” and it was not Catholic individuals but “this machine that we are fighting.” “It’s Not the Laity,” Menace (Aug. 3, 1912). 9. Letter from H. W. Evans to Charles C. Marshall (Mar. 28, 1928), Box 5, Charles C. Marshall Papers, Library of Congress; Advertisement for Gilbert Nations, The Canon Law of the Papal Throne, Protestant, 6(11): 175 (Jan. 1927); “Disfranchise the Aliens,” Protestant, 6(9): 129 (Nov. 1926). Views such as Nation’s were commonplace across much of Protestant America. A Lutheran publication recited the old line “No man can be a loyal American and a loyal Romanist at the same time.” H. C. Morrison, Romanism and Ruin, 191 (Louisville: Pentecostal Publishing Company, 1914) (internal quotation marks omitted). The Moody Bible Institute published a book stating that “Romanism is essentially anti-democratic and is the foe of our democratic institutions, including our free and compulsory education.” J. C. Macaulay, Truth v. Dogma, 105 (Chicago: Moody Press, 1946). 10. Paul Blanshard, Personal and Controversial: An Autobiography, 52, 108, 110, 111 (Boston: Beacon Press, 1973). 11. Paul Blanshard, American Freedom and Catholic Power, 59, 286 (1949; Boston: Beacon Press, 1951); John T. McGreevy, Catholicism and American Freedom, 169 (New York: W. W. Norton & Company, 2003). The first edition of Blanshard’s book alone sold 240,000 copies. Paul Blanshard, American Freedom and Catholic Power, verso of frontispiece, 2nd ed. (Boston: Beacon Press, 1958). 12. Paul Blanshard, Personal and Controversial: An Autobiography, 46, 112 (Boston: Beacon Press, 1973). 13. Paul Blanshard, American Freedom and Catholic Power, 48, 76, 181, 189–90, 260, 286 (1949: Boston: Beacon Press, 1951); “Canon Law Clashes with U.S. Law, Poteat, Blanshard Tell Conference,” Church and State Newsletter, 4(2): 3 (Feb. 1951). Blanshard also said: “Vatican intervention in American life is no more welcome than Kremlin

364 / Notes to Chapter 6

14.

15. 16. 17. 18. 19. 20. 21. 22.

23.

24. 25. 26.

27. 28.

intervention and all true believers in freedom should oppose both types of intervention.” “Canon Law Clashes with U.S. Law, Poteat, Blanshard Tell Conference,” Church and State Newsletter, 4(2): 1, 3 (Feb. 1951). It was a familiar trope. See, for example, Leo H. Lehmann, “The Third Power,” 1, typescript (1934), Box 9, Charles C. Marshall Papers, Library of Congress (beginning with a section titled “Communism and Papalism”). Moehlman thought the Church was, like the Soviets, a “totalitarian institution.” Conrad Henry Moehlman, The Wall of Separation between Church and State, 3 (Boston: Beacon Press, 1951). For a slightly later complaint about “these two alien forces,” see Don W. Hillis, The Big Question . . . A Vatican Victory in the U.S.A.?, 16 (Findlay, OH: Dunham Publishing Company, 1959). George H. Williams, Waldo Beach, & H. Richard Niebuhr, “Issues between Catholics and Protestants at Midcentury,” Religion in Life, 23: 163, 185 (Spring 1954); Paul Blanshard, American Freedom and Catholic Power, dustjacket (1949; Boston: Beacon Press, 1951). Paul Blanshard, Personal and Controversial: An Autobiography, 217–18 (Boston: Beacon Press, 1973); “Catholic Organizations Condemned,” New Age, 62: 74–75 (1954). H. W. Evans, The Rising Storm, 316, 338, & 344 (Atlanta: Buckhead Publishing Co., 1930). Gilbert Owen Nations, Roman Catholic War on Public Schools, 116, 120–22 (Washington: Independent Publishing Company, 1931). Harold R. Rafton, The Roman Catholic Church and Democracy: The Teachings of Pope Leo XIII on Church and State, 18 (Boston: Beacon Press, 1951). Ibid., 20, 22–23. Ibid., 20, 23. Ibid., 3. The Catholic Church and Politics: A Discussion on a Vital Issue Presented by the Harvard Law School Forum, 26 (Cambridge: Gannett House, 1951) (regarding question of sterilization). Ibid., 31. Theodore Schroeder earlier wrote: “The man who . . . professes to abandon his honest convictions at the dictation of church superiors . . . practically ceases to have the right to think for himself, and becomes the machine through which the will of others is made operative.” Theodore Schroeder, Secularism and the Churches, 6 (New York: American Freethought Tract Society, No. 5, [1912]). Paul Blanshard, American Freedom and Catholic Power, 305 (1949; Boston: Beacon Press, 1951). Paul Blanshard, Communism, Democracy, and Catholic Power, 292 (Boston: Beacon Press, 1951). Charles S. Longacre, “Serious Dangers Before the American Ship of State,” Liberty: A Magazine of Religious Liberty, 14: 10 (1919); Charles S. Longacre, The Church in Politics, 7, 16 (Washington: Review and Herald Publishing Association, 1927). For complaints about propaganda, see “Religious Propaganda Under Civil Disguise,” Liberty: A Magazine of Religious Liberty, 17: 20 (1922). For lobbying, see “Your Constitutional Liberties Threatened,” Liberty: A Magazine of Religious Liberty, 17: “Extra—More Sunday Blue Law Bills before Congress” (1922); “A Religious Lobby Seeking to Control Congress,” Liberty: A Magazine of Religious Liberty, 17: 35 (“Extra—First Quarter”) (1922). H. W. Evans, The Rising Storm, 19, 23–24 (Atlanta: Buckhead Publishing Co., 1930). The National Catholic Almanac, 434 (1946). This was one of the Knights of Columbus’s “major projects.” Ibid.

Notes to Chapter 6 / 365 29. George W. Elderkin, The Roman Catholic Problem, 124, 230 (New York: Vantage Press, 1954); Thomas J. Harkins, The Grand Commander’s Message, “Iron Curtains,” New Age, 62: 515 (1954); “Citizens Win Fight for Referendum Tax Exemption,” New Age, 59: 582 (1951); “Roman Catholicism and Totalitarianism,” New Age, 60: 747 (1952). A 1953 article in the Scottish Rite News Bulletin reported: “Right now the legislature in Tennessee is looking for Communistic teachings in our textbooks. This is fine. Why not press the investigation to other subversive teachings such as (Roman) Catholicism?” S.W., “Roman Catholic Propaganda in Tennessee TextBook,” Scottish Rite News Bulletin, 1 (May 1953). 30. George W. Elderkin, The Roman Catholic Problem, 182 (New York: Vantage Press, 1954); “Cause of Religious Tensions Discussed,” “What is McCarthy’s Real Objective,” New Age, 62: 7 (1954), quoting Joseph C. Harsch, “State of the Nations: Religious Controversy,” Christian Science Monitor, 1 (Nov. 10, 1953); “Dangers of Clericalism Exposed,” New Age, 63: 262–63 (1955); “Causes of Religious Tensions Discussed,” New Age, 62: 211 (1954). 31. The Catholic Church and Politics: A Discussion on a Vital Issue Presented by the Harvard Law School Forum, 6 (Cambridge: Gannett House, 1951). 32. Alfred S. Cole, Our Liberal Heritage, 4 (Boston: Beacon Press, for Universalist Church of America, Department of Education, 1951); Norman S. Meese, “Faith and Freedom,” New Age, 62: 668 (1954). 33. California Constitution, article XX, §19 (1952); Assembly Constitutional Amendment No. 1, Frank M. Jordan, secretary of state, Proposed Amendments to Constitution, Propositions and Proposed Laws Together with Amendments to Be Submitted to the Electors of the State of California at the General Election Tuesday, Nov. 4, 1952, at Part II (Appendix), 3 (California: California State Printing Office, 1952); California Revenue and Tax Code §32 (1956); “Tax Exemptions, Loyalty Oaths, and ‘Clear and Present Danger,’ ” Stanford Law Review, 10: 327 (1958). For an example of how the restriction was described as applicable to “churches and other non-profit groups,” see “Church Defies Loyalty Oath in California,” Chicago Daily Tribune, F, Part I, p. 3 (Feb. 22, 1954). 34. “Church Defies Loyalty Oath in California,” Chicago Daily Tribune, F, Part I, p. 3 (Feb. 22, 1954); “Unitarian Church Challenges California Loyalty Program,” The Day (New London), 1 (Feb. 22, 1954). 35. Speiser v. Randall, 357 U.S. 513, 518, 529 (1958). 36. René Wormser, Foundations: Their Power and Influence, 3, 4, 6 (New York: Devin-Adair Company, 1958); Tax-Exempt Foundations, Report of the Special Committee to Investigate Tax-Exempt Foundations and Comparable Organizations, H.R. Report No. 83-2681, at 1 (1954); Ann M. Murphy, “Campaign Signs and the Collection Plate—Never the Twain Shall Meet?,” Pittsburgh Tax Review, 1: 35, 50 (2003). Regarding propaganda, see Carnegie Foundation for Advancement of Teaching, The Rockefeller Foundation, & The Rockefeller General Education Board, To the Special Committee to Investigate Tax Exempt Foundations of the House of Representatives, Summary of Activities of Carnegie Corporation of New York, 3 (June 9, 1954). 37. René Wormser, Foundations: Their Power and Influence, 184–85 (New York: DevinAdair Company, 1958). 38. Ibid., 185. 39. Tax-Exempt Foundations. Report of the Special Committee to Investigate Tax-Exempt Foundations and Comparable Organizations, H.R. Report No. 83-2681, at 219; Roger Colinvaux, “The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition,” Case Western Reserve Law Review, 62: 686, 695 (2012).

366 / Notes to Chapter 6 40. American Civil Liberties Union, America’s Need: A New Birth of Freedom, 34th Annual Report, July 1, 1953–June 30, 1954, at 39 (New York: American Civil Liberties Union). 41. Congressional Record, 100: 9,446 (July 1, 1954), discussed by Ann M. Murphy, “Campaign Signs and the Collection Plate—Never the Twain Shall Meet?,” Pittsburgh Tax Review, 1: 35, 54 (2003); 50 U.S.C. §789 (1952). For Subversive Activities Control Board, see 50 U.S.C. §791 (1952). For McCarran’s reasoning, see “Senate Passes Bill Curtailing Exemptions,” Reno Evening Gazette, 6 (July 6, 1954). 42. The Trial in the Hearing Room: The McCarthy-Army Hearings, 1–2 (University of Chicago Roundtable, No. 839, May 9, 1954) (the captivated point being made by Brainerd Currie); “McCarthy-Welch Exchange,” video of McCarthy Army Hearings, http:// www.americanrhetoric.com/speeches/welch - mccarthy.html . See also “The ArmyMcCarthy Hearings, 1954,” in On Trial: American History Through Court Proceedings and Hearings, 2: 136–51, ed. Robert D. Marcus and Anthony Marcus (New York: Brandywine Press, 1998). 43. Patrick Murphy Malin, “Fresh Start on a Rocky Road,” in America’s Need: A New Birth of Freedom, 34th Annual Report, American Civil Liberties Union July 1, 1953–June 30, 1954, at 3 (New York: American Civil Liberties Union, [1954]). The shift in atmosphere seemed even clearer the following summer. Clearing the Main Channels, 35th Annual Report of the American Civil Liberties Union July 1, 1954 to June 30, 1955, at 21–22 (New York: American Civil Liberties Union, [1955]). Indeed, a 1956 leaflet was entitled The “Calmer Time” Is Now: A Great Victory for Civil Liberties Has Been Won (Pittsburgh: Committee to End Sedition, [1956]). For a discussion of the softened attitude toward Catholics by 1955, see John T. McGreevy, “Thinking on One’s Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History, 84: 97, 128 (1997). CHAPTER SEVEN

a. b. 1. 2. 3. 4. 5.

6.

Philip Hamburger, Separation of Church and State, 294, n. 20 (Cambridge: Harvard University Press, 2002). O. B. Frothingham, “Education and Religion,” New York Independent, 17(919) (July 12, 1866). Hints of this are discussed in Ian Dowbiggin, A Merciful End: The Euthanasia Movement in Modern America, 83, 86, 90, 94 (New York: Oxford University Press, 2003). R. Freeman Butts, Public Education in the United States: From Revolution to Reform, 120 (New York: Holt, Rinehart & Winston, 1978). Equal Rights in Religion: Report of the Centennial Congress of Liberals, 14–15 (Boston: National Liberal League, 1876). Clarence True Wilson, The Divine Right of Democracy, 80 (New York: Abingdon Press, 1922); John Dewey, A Common Faith, 2, 59 (New Haven: Yale University Press, 1934). Ibid., 83. John Dewey at the beginning of World War II publicly urged Americans to reject fascism and communism by cultivating a democratic culture opposed to “external authority, discipline, uniformity and dependence upon The Leader,” but he privately added that he was worried about “appeasement”—not appeasement of Germany, but of the Church. John T. McGreevy, Catholicism and American Freedom, 175 (New York: W. W. Norton & Company, 2003). John Dewey, The Nation’s Schools, as quoted by Paul Blanshard, American Freedom and Catholic Power, 106 (Boston Beacon Press, 1949); discussed by John A. Hardon, SJ, “John Dewey—Radical Social Educator,” http://www.ewtn.com/library/HOME SCHL/JNDEWEY2.HTM; George H. Williams, Waldo Beach, & H. Richard Niebuhr,

Notes to Chapter 7 / 367

7.

8.

9. 10.

11.

12.

13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

“Issues between Catholics and Protestants at Midcentury,” Religion in Life, 23: 163, 185 (Spring 1954), quoting Nichols. Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962); John Horgan, “Profile: Reluctant Revolutionary: Thomas S. Kuhn Unleashed ‘Paradigm’ on the World,” Scientific American, 40, 49 (May 1991). “Exoteric Teaching,” in Reorientation: Leo Strauss in the 1930s, 275, ed. Martin D. Yaffe & Richard S. Ruderman (New York: Palgrave Macmillan, 2014); Leo Strauss, Persecution and the Art of Writing (Glencoe: Free Press, 1952). John Locke, A Letter Concerning Toleration, 34, ed. James H. Tully (Indianapolis: Hackett Publishing Company, 1983). The Central Committee for Protecting and Perpetuating the Separation of Church and State, to the People of the State of New York, Appeal No. 1, at [3], 17 ([New York: 1885]); H. W. Evans, “Alienism in the Democracy: Article III ‘For the People’ or For the Pope?,” Kourier Magazine, 3(8): 1 (July 1927); Charles C. Marshall, Governor Smith’s American Catholicism, 17, 41 (New York: Dodd, Mead & Company, 1928). Similarly, Marshall wrote that the Church’s “religious doctrine and dogma” was in “conflict with the civic constitutional order.” Ibid., 18. Harold R. Rafton, “Religion at Harvard,” in John Dewey, The Later Works, 17: 345–46, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1989), initially published as “Comment on ‘Religion at Harvard’,” Harvard Alumni Bulletin, 17: 135. Julius Seelye Bixler, Education for Adversity, 11, 17 (Cambridge: Harvard University Press, 1952). (A comma after the word “God” has been removed.) Tellingly, the Scottish Rite Mason appreciated Bixler’s views. See “Two Prominent Educators Discuss Current Problems,” Scottish Rite News Bulletin, 1 (May 21, 1951). Bixler’s vision of education in theology paralleled his vision of political debate. He believed that “the religion we teach” should be “free from any appeal to arbitrary dogma,” which means “we should be ready to teach religions of varied and if necessary unconventional types so long as their basic philosophy is one that a rational mind can accept.” Ibid., 18. Horace M. Kallen, Secularism Is the Will of God: An Essay in the Social Philosophy of Democracy and Religion, 11, 224–25 (New York: Twayne Publishers, 1954). Walter Lippmann, Essays in the Public Philosophy, 98, 104 (New York: Atlantic Monthly Press, 1955). The second passage was quoted from Ernest Barker. Ibid., 99, 101–02. Ibid., 162. Ibid., 115. George H. Williams, Waldo Beach, & H. Richard Niebuhr, “Issues between Catholics and Protestants at Midcentury,” Religion in Life, 23: 163, 197–98 (Spring 1954). John C. Bennett, Christians and the State, 252–54 (New York: Charles Scribner’s Sons, 1958). Ibid., 269, 271. Ibid., 271. Ibid, 273. Ibid., 274–75. Ibid., 275, 278, 284. Bennett carefully presented First Amendment freedoms in a way that avoided any conflict with section 501(c)(3)’s restrictions: “[T]here can be no religious liberty unless there is religious freedom to speak [as opposed to political freedom], unless there is freedom for religious books and periodicals [in contrast to political literature], unless there is a freedom for congregations and many other

368 / Notes to Chapter 7

25. 26.

27.

28.

29. 30.

31. 32.

religious groups to assemble, and unless there is freedom to petition on all matters that affect the rights of Churches or of the individual conscience [but not apparently on other political matters]. Whenever any state clamps down on these rights of citizens on political grounds [thus omitting the section 501(c)(3)’s religious grounds] religious liberty even in the narrowest sense is in danger for there is always the possibility of claiming that religious teaching is politically subversive.” John C. Bennett, Christians and the State, 217, 273 (New York: Charles Scribner’s Sons, 1958). For a Supreme Court example, see Lemon v. Kurtzman, 403 U.S. 602 (1971). George H. Williams, Waldo Beach, & H. Richard Niebuhr, “Issues between Catholics and Protestants at Midcentury,” Religion in Life, 23: 163, 164 (Spring 1954). For an example of some of the earlier theologically liberal redefinition of democracy, note that James Morton wrote: “a fuller appreciation of the democratic principle can be fraught with nothing but blessings to our people. Democracy does not mean merely the election of officials by popular franchise, nor is it synonymous with unlimited majority rule. Starting from the premise of equal rights of all men and women, it necessarily signifies the paramount importance of the individual, and next to the individual, the rights of the collective community.” James F. Morton Jr., Exempting the Churches, 2–3 (New York: Truth Seeker Company, 1916). He thereby elevated the individual and the collective community at the expense of churches and other nongovernment groups. London Magazine, or, Gentleman’s Monthly Intelligencer, 34: 78 (1765); William E. Channing, A Sermon, Preached at the Annual Election, 25 (Boston: 1830) (preaching that when religion “assumes an intolerant, exclusive, sectarian form, it subverts . . . the soul’s freedom,” and that religion therefore “must be regarded as the revelation of a common Father, to whom all have equal access”); John Dewey, A Common Faith, 22 (New Haven: Yale University Press, 1934); Masonry and Americanism, 36 (Washington: Masonic Service Association of the United States, 1924); Conrad Henry Moehlman, The Wall of Separation between Church and State, 35 (Boston: Beacon Press, 1951); Harold R. Rafton, The Roman Catholic Church and Democracy: The Teachings of Pope Leo XIII on Church and State, 4–5 (Boston: Beacon Press, 1951); John Rawls, Political Liberalism, expanded ed, 129 (New York: Columbia University Press, 2005). Charles Clinton Marshall complained about the “exclusive claims” of the Catholic Church and thought that “it is just in this exclusiveness that lies her unique strength.” Charles C. Marshall, The Roman Catholic Church in the Modern State, 193, 197 (New York: Dodd, Mead & Company, 1928) (emphasis omitted). Masonry and Americanism, 37 (Washington: Masonic Service Association of the United States, 1924); Rudolf Dreikurs, Character Education and Spiritual Values in an Anxious Age, 75 (1952; Boston: Beacon Press, 1954) (an address delivered at the 125th anniversary meeting of the Unitarian Sunday School Society); John Rawls, Political Liberalism, expanded ed., 303 (New York: Columbia University Press, 2005). James H. Nichols, “What Disturbs Protestants about Catholics,” Look, 42, 50 (May 18, 1954). John Rawls, Political Liberalism, expanded ed., 448 (New York: Columbia University Press, 2005). Rawls also writes of the need for a “willingness to listen to others and a fairmindedness in deciding when accommodations to their views should reasonably be made.” Ibid., 217. Ibid. Ibid., 220, 243. Rawls also speaks of the “nonpublic reasons of churches and universities and of many other associations in civil society.” Ibid., 213.

Notes to Chapter 7 / 369 33. Ibid., 134, 144, 170, 224–25. 34. Ibid., 217, 253. See also ibid., 445. Among those who have noted the conflict between the ideal of public reason and the freedom of religious speech are Justin Buckley Dyer & Kevin E. Stuart, “Rawlsian Public Reason and the Theological Framework of Martin Luther King’s ‘Letter from a Birmingham City Jail,’ ” Politics and Religion, 6: 145 (2013). 35. John Rawls, Political Liberalism, expanded ed., 486 (New York: Columbia University Press, 2005); John Rawls, A Brief Inquiry into the Meaning of Sin and Faith, with On My Religion, 6, ed. Thomas Nagel (Cambridge: Harvard University Press, 2009). For Rawls’s focus on examples taken from the Catholic Church, see John Rawls, Political Liberalism, expanded ed., 243, n. (New York: Columbia University Press, 2005); and John Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review, 64: 765, 798–99 (1997). 36. John Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review, 64: 765, 801 (1997). The theologically liberal foundations of the arguments in Political Liberalism also rose to the surface when the question of physician- assisted suicide came before the courts in 1994. Rawls declared that an individual has a “constitutionally protected interest” in avoiding “the imposition of any religious or philosophical orthodoxy.” John T. McGreevy, Catholicism and American Freedom, 286 (New York: W. W. Norton & Company, 2003). 37. John Rawls, Political Liberalism, expanded ed., 213 (New York: Columbia University Press, 2005). 38. Ibid., 217. 39. Albert C. Mackey, Encyclopedia of Freemasonry and Its Kindred Sciences, 801 (sectarianism), 934 (toleration) (Philadelphia: McClure Publishing Co., 1917); 1939 Year Book of the Patriotic Order Sons of America, 21 ([Philadelphia: 1939]). 40. Masonry and Americanism, 37–38, 92 (Washington: Masonic Service Association of the United States, 1924). 41. 1939 Year Book of the Patriotic Order Sons of America, 20 ([Philadelphia: 1939]). Even when the NEA in 1924 “grudgingly” acknowledged the legitimacy of private schools, it emphasized that “the American public school is the great nursery of broad and tolerant citizenship and of democratic brotherhood.” Douglas J. Slawson, The Department of Education Battle, 1918–1932: Public Schools, Catholic Schools, and the Social Order, 132 (South Bend: University of Notre Dame Press, 2005). 42. “Nontotalitarian Claim Challenged,” New Age, 62: 646–(1954). This was a commentary on a leaflet issued in August 1954 by St. John’s Church in Philadelphia (at Thirteenth Street, below Market Street), which objected to characterizations of the Church as “authoritarian” or “totalitarian.” 43. John Rawls, Political Liberalism, expanded ed., 157 (New York: Columbia University Press, 2005). 44. Alexander Meiklejohn, “A Reply to John Dewey,” in John Dewey, Works, vol. 15, The Later Works, 1925–1948, 474, 484 (Carbondale: Southern Illinois University Press, 1989); Andrew Koppelman, Defending American Religious Neutrality, 146 (Cambridge: Harvard University Press, 2013). I N T RO D U CT I O N TO PA R T I I I

1. 2.

Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983) (internal quotation marks and brackets omitted). Ibid.

370 / Notes to Chapter 8 CHAPTER EIGHT

b. c.

1.

2.

Lewis F. Powell, “Foreword,” in Gerald Gunther, Learned Hand: The Man and the Judge, xii (New York: Alfred A. Knopf, 1994). “Tax Exemption on Parochial Schools in California,” New Age, 60: 595 (1952). For the 1952 amendment, see Frank M. Jordan, secretary of state, Proposed Amendments to Constitution, Propositions and Proposed Laws Together with Amendments to Be Submitted to the Electors of the State of California at the General Election Tuesday, Nov. 4, 1952, at 4 & Part II (Appendix), 2 (California: California State Printing Office, 1952). For the controversy, see Hannah Bloom, “California’s Church School War,” Nation, 521 (May 31, 1952); Claude W. Stimson, “Exemption from the Property Tax in California,” California Law Review, 21: 193, 206 (1933). For just some of the articles in New Age, see “California’s Schools,” New Age, 41: 331 (1933); “Taxation and Religious Schools,” New Age, 60: 391 (1952); “Tax Exemption for Church Schools Challenge to All,” New Age, 60: 138 (1952); “Tax Exemption on Parochial Schools in California,” New Age, 60: 595 (1952); “Roman Catholic Plea for Tax Exemption Denied,” New Age, 62: 41 (1954). Similarly, see “Tax Exemption for Church Schools Challenge to All,” Scottish Rite News Bulletin, 1 (Jan. 1951); “Protestantism Ringed by Three Dangerous Enemies,”Scottish Rite News Bulletin, 2 (June 1951). For a valuable caution against accepting the economic analysis of tax expenditures as a substitute for legal analysis, see Linda Sugin, “Tax Expenditure Analysis and Constitutional Decisions,” Hastings Law Journal, 50: 407, 412 (1999). Edward Zelinksky observes that “the ‘subsidy’ label is usually deployed in a conclusory and unconvincing fashion.” Edward A. Zelinksky, “Are Tax ‘Benefits’ for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities?,” Boston College Law Review, 42: 805 (2001). For a hint of how a mistakenly broad application of tax expenditure theory could threaten liberty, consider the following critique of state exemptions of churches from property taxes. In 1971, the Race and Minority Group Relations Task Force of the White House Conference on Youth argued that “American institutions must actively oppose racism” in the following ways: Denunciation of racism must come from leaders in the white ethnic communities—rabbis, ministers, priests, and community leaders have the power to influence their groups. Church facilities should be opened to community groups especially those churches in the central city—for day care centers, tutoring projects, and community group meetings. If the churches do not vocally support and act on these suggestions, then their real property should lose their tax exempt status.

3.

1971 White House Conference on Youth, Recommendations and Resolutions, 235 (Washington: U.S. Government Printing Office, 1971). This was echoed in the religious press. For example, the news service of the Southern Baptists Convention understood it to mean that inner-city churches that “do not open their facilities to community groups serving the poor should lose their tax exempt status.” News release, Baptist Press, 4–5 (Apr. 26, 1971). Carl Zollmann, “Tax Exemptions of American Church Property,” Michigan Law Review, 14: 646, 648–49 (1916); Harry Hibschman, Should Church Property Be Tax Exempt?, 43, 45 (Girard: Haldeman- Julius Publications, 1930); Alfred B. Sweet, A Digest of Taxation in the States, 197–245 (Albany: 1863) (for Arkansas, see ibid., 198);

Notes to Chapter 8 / 371

4.

5. 6.

7.

8.

9.

Claude W. Stimson, “Exemption from the Property Tax in California,” California Law Review, 21: 193, 204, 206 (1933); California Constitutional Amendment, Art. XIII, §1-1/2 (1900). Westchester County Chamber of Commerce, Tax Exemption of Real Estate: An Increasing Menace, 88 (White Plains: Westchester County Chamber of Commerce, 1922); Charles J. Tobin, William E. Hannan, & Leland L. Tolman, The Exemption from Taxation of Privately Owned Real Property Used for Religious, Charitable, and Educational Purposes in New York State (1934; Albany: 1938). Westchester County gave emphasis to the state function theory by explaining that, because nonprofits were acting as agents for the state, it was “obvious that the state should not tax its own agencies. To tax its own agencies would be to tax itself. It would simply take money out of one pocket to put it in another.” Westchester County Chamber of Commerce, Tax Exemption of Real Estate: An Increasing Menace, 85 (White Plains: Westchester County Chamber of Commerce, 1922). Thomas M. Cooley, A Treatise on the Law of Taxation, 130 (Chicago: 1876). Congressional Record, 50: 1306 (May 7, 1913); Boris I. Bittker & George K. Rahdert, “The Exemption of Nonprofit Organizations from Federal Income Taxation,” Yale Law Journal, 85: 299, 301, 303, 333 (1976); Edward A. Zelinksky, “Are Tax ‘Benefits’ for Religious Institutions Constitutionally Dependent on Benefits for Secular Entities?,” Boston College Law Review, 42: 805, 811 (2001). See also Boris I. Bittker, “Churches, Taxes, and the Constitution,” Yale Law Journal, 78: 1285, 1291 (1969); Boris I. Bittker, “Accounting for Federal ‘Tax Subsidies’ in the National Budget,” National Tax Journal, 22: 244 (1969); William D. Andrews, “Personal Deductions in an Ideal Income Tax,” Harvard Law Review, 86: 309, 311 (1972); Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 106 (Oxford: Oxford University Press, 2011). The Tax Expenditure Budget: A Conceptual Analysis, in Annual Report of the Secretary of the Treasury on the State of the Finances, for the Fiscal Year Ended June 30, 1968, at 328 (Treasury Dept. Doc. No. 3245) (Washington: U.S. Government Printing Office, 1969). Joint Committee on Taxation, Estimates of Federal Tax Expenditure for Fiscal Years 2012– 2017, Prepared for the House Committee on Ways and Means and the Senate Finance Committee on Finance, 8–9 (Washington: U.S. Government Printing Office, Feb. 1, 2013). See also Roger Colinvaux, “The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition,” Case Western Reserve Law Review, 62: 686, 743 (2012). Whether deductions are really tax expenditures is a complicated question. See David M. Schizer, “Subsidizing Charitable Contributions: Incentives, Information, and the Private Pursuit of Public Goals,” Tax Law Review, 62: 221, 222–23 (2009) (noting the view that the charitable deduction “helps to measure income” and that this point is “contested”). For a summary of the literature, see ibid., 223, n. 2. See also Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 105 (Oxford: Oxford University Press, 2011). The Demands of Liberalism, Equal Rights in Religion: Report of the Centennial Congress of Liberals, 11 (Boston: National Liberal League, 1876); 1875 Resolution, in ibid., 22; James F. Morton Jr., Exempting the Churches, 66 (New York: Truth Seeker Company, 1916), quoting Robert Ingersoll. Similarly, see To the Liberals of America (broadside), quoted in Philip Hamburger, Separation of Church and State, 304, n. 43 (Cambridge: Harvard University Press, 2002); Platform for the Presidential Election of 1880,

372 / Notes to Chapter 8 printed on a National Liberal League envelope; “Need of Taxing Church Property,” Free Thought Magazine, 13: 168, 169 (1895). Recognizing the political costs of its extreme view, the National Liberal League asserted its position only in euphemistic terms, opposing the “taxing of the people of any state, either directly or indirectly, for the support of any sect or religious body or of any number of sects of religious bodies.” The Demands of Liberalism, Equal Rights in Religion: Report of the Centennial Congress of Liberals, 16 (Boston: National Liberal League, 1876). Later, however, after the league impaled itself on the question of obscenity, its primary successor organization, the American Secular Union, devoted itself to separation of church and state by more bluntly advocating, as its primary specific goal, the “equitable taxation of church property in common with other property.” Constitution of the American Secular Union, 2 (Philadelphia: 1889). Incidentally, Morton was a theologically liberal anarchist who argued against the exemption of churches on the ground that “it is nothing more or less than the indirect support of the church by the state. It is the connivance of the state in the picking of the pockets of its citizens by the church.” James F. Morton Jr., Exempting the Churches, 11 (New York: Truth Seeker Company, 1916). Tellingly, the Truth Seeker Company published his pamphlet with a tract questioning the “divine origin” of the “Christian Sabbath.” 10. Ulysses S. Grant, “Message to Senate and House of Representatives,” Journal of the Senate of the United States of America, 9 (Dec. 7, 1875) (Washington: 1875). John Newman—a Methodist Episcopal minister who was the Senate chaplain and a presidential appointee—soon echoed the president’s proposal, declaring that government “cannot release church property from taxation.” John P. Newman, Religious Liberty: A Free Church in a Free Country, Non-Religious, but not Irreligious . . . A Thanksgiving Discourse, 11 (Washington: Office of the National Republican, 1875). Earlier, James Garfield had argued: “The divorce between the church and the state ought to be absolute. It ought to be so absolute that no Church property anywhere in any state or in the nation should be exempted from equal taxation; for if you exempt the property of any church organization, to that extent you impose a tax upon the whole community.” Congressional Record, 2: 5384 (June 22, 1874). In mid-1890s, the nativist American Protective Association declared: “Believing that exemption from taxation is equivalent to a grant of public funds, we demand that no real or personal property be exempt from taxation, the title of which is not vested in the national or state governments, or in any of their subdivisions.” Elijah Lucas, Shall Liberty Die? or Patriots to the Front, 44 (n.p.: 1897). Some newspapers picked up on such arguments. The New York Evening Post opined: “We have never been able to see the slightest difference in principle between the appropriation of a certain sum of money raised by tax to a particular church, and a release of that church from a tax on its property to the same amount. The cost of the act in either case falls upon the taxpayers generally.” New York Evening Post, as quoted by James F. Morton Jr., Exempting the Churches, 64 (New York: Truth Seeker Company, 1916). This was the era of the Blaine amendments—of prejudiced state constitutional amendments designed to bar state support for Catholic institutions—and antiexemption demands clearly were getting growing support from the same quarter. 11. George H. Andrews, “Should Church Property be Taxed?,” Letter III, New York Times (Jan. 2, 1876). 12. George H. Andrews, “Should Church Property be Taxed?,” Letter IV, New York Times,

Notes to Chapter 8 / 373 (Jan. 5, 1876); George H. Andrews, “Should Church Property be Taxed?,” Letter V, New York Times (Jan. 6, 1876). 13. John M. Farley, “Why Church Property Should Not Be Taxed,” Forum, 434 (June 1894); Carl Zollmann, “Tax Exemptions of American Church Property,” Michigan Law Review, 14: 646, 649 (1916); James F. Morton Jr., Exempting the Churches, 13–15 (New York: Truth Seeker Company, 1916); Theodore Schroeder, Al Smith, The Pope and the Presidency, 205 (New York: for the author, 1928). In a 1914 Truth Seeker pamphlet, Samuel Stevens protested “ecclesiasticism” and its “vast untaxed possessions.” Samuel Eugene Stevens, Science and Superstition, 22–23 (New York: Truth Seeker Company, 1913 [1914]). Morton wrote: [M]illions of our citizens are informed that if they are not members of some church, and so getting their share of access to the swag, it is their own fault; and that they have no right to complain of the robbery of which they are victims. Since it is impossible to apply direct force, in order to make every individual become a churchman, the next best ecclesiastical scheme is to soak him in the pocketbook for not doing so. . . . The proposition is a brutally plain one. If they join the church, they get something for the money stolen from them in the shape of increased taxation; if they remain outside, the added tax is a dead loss. James F. Morton Jr., Exempting the Churches, 22 (New York: Truth Seeker Company, 1916). 14. Menace (Apr. 13, 1912). From a nativist perspective, Gilbert Nations worried about the Church’s “immense properties, many of which are used for commercial and speculative purposes, and which are exempted from taxation by our national and state governments.” Gilbert O. Nations, Papal Sovereignty: The Government within Our Government, 149 (Cincinnati: Standard Publishing Company, 1917). 15. Lucy Winsor Killough, “Exemptions to Educational, Philanthropic and Religious Organizations,” in Tax Exemptions, 23, 33 (New York: Tax Policy League, 1939). Killough, who was an assistant professor of economics at Wellesley College, noted that this was also the assumption of the Tax Policy League symposium in 1938, at which she was speaking. Ibid., 33. On the basis of such ideas, the Westchester County Chamber of Commerce asked: “[I]f tax exemptions are in the nature of subsidies for performing a state function, why should the counties suffer because they happen to be situated where these institutions find convenient and accessible locations, and why should townships suffer because a county function is performed within its township?” Westchester County Chamber of Commerce, Tax Exemption of Real Estate: An Increasing Menace, 87 (White Plains: Westchester County Chamber of Commerce, 1922). For some of the legal and related analysis, see Duane Mowry, “Ought Church Property be Taxed,” Green Bag, 15: 414, 416 (1903); Newman F. Baker, “Judicial Interpretation of Tax Exemption Statutes,” Texas Law Review, 7: 385 (1929); Farwell Knapp, Charitable Exemptions: Paper Presented to the National Tax Association Conference ([Hartford]: Tax Commissioner of Connecticut, Taxation Document No. 264, [1934]); Harvey W. Peck, “The Use of the Taxing Power for Non-Fiscal Purposes,” Annals of the American Academy of Political and Social Science, 183: 57 (1936); C. Lowell Harriss, “Philanthropy and Federal Tax Exemption,” Journal of Political Economy, 47: 526 (1939); Buel W. Patch, “Tax Exempt Foundations,” Editorial Research Reports, 1: 2 (1949); Guy Greer, “Tax Exemption Is Poison,” Appraisal Journal, 15: 8 (1947);

374 / Notes to Chapter 8

16. 17.

18.

19.

20.

D.K., “Criticized Uses of Federal Tax Exemption Privileges by Charitable Foundations and Educational Institutions,” University of Pennsylvania Law Review, 98: 696 (1950); “Exemption of Educational, Philanthropic and Religious Institutions from State Real Property Taxes,” Harvard Law Review, 64: 288 (1950). For a local pamphlet by a tax payer, see Elizabeth S. Rawls, Tax Exemption: How Fair Is It? (Indianapolis: [1953]). Note that although Mowry’s essay appeared in a legal journal, it was a version of the usual atheist or secularist essays. Harry Hibschman, Should Church Property Be Tax Exempt?, 43, 56, 61 (Girard: Haldeman-Julius Publications, 1930). Slee v. Commissioner, 42 F.2d 184, 185 (1930). Not going quite so far, the Supreme Court added four years later that the provisions granting “exemption of income devoted to charity” were “liberalizations of the law in the taxpayer’s favor” and were “begotten from motives of public policy.” Helvering v. Bliss, 293 U.S. 144 (1934). Tellingly, when the Bulletin of the National Tax Association editorialized, “Tax exemption is as much an aid as if the state paid the pastor’s salary,” it was in an essay that complained: “We do not have separation of church and state.” “Editorial: Tax Exemption—A Subsidy,” Bulletin of the National Tax Association, 14: 157 (1929). And it was a student note on “Catholic Schools and Public Money” that observed: “The most extensive subsidy allotted to the Catholic school, however, is tax exemption, available in varying degrees in all states but California.” “Catholic Schools and Public Money,” Yale Law Journal, 50: 917, 922 (1941). The theologically liberal antiecclesiastical attitude toward exemptions found a small niche in the income tax literature as early as 1875. That year, when the Massachusetts commission on taxation was examining income taxation, Francis Ellingwood Abbot, president of the Boston Liberal League and soon to be president of the National Liberal League, presented the commission with a letter against tax exemption for religious organizations, which was published toward the end of the commission’s report. His theory was that “exemption from taxation . . . is indirect appropriation.” Exemption thus was “equivalent to a direct subsidy from the State to the Church” in violation of the separation of church and state. Report of the Commissioners Appointed to Inquire into the Expediency of Revising and Amending the Laws Relating to Taxation and Exemption Therefrom, January, 1875, at 398, 401 (1875; Boston: Wright & Potter, 1893) (House Report No. 15). For early notes on the subject, see “Constitutionality of Tax Benefits Accorded Religion,” Columbia Law Review, 49: 968, 985 (1949); “Exemption of Educational, Philanthropic and Religious Institutions from State Real Property Taxes,” Harvard Law Review, 64: 288 (1950). For example, in the California school exemption controversy, opponents of the tax exemption for church schools argued that it was an “indirect subsidy, involving the principle of separation of church and state.” “Tax Exemption on Parochial Schools in California,” New Age, 60: 595 (1952). John M. Farley, “Why Church Property Should Not Be Taxed,” Forum, 434 (June 1894); “Universalists Oppose Tax Exemption for Churches,” Scottish Rite News Bulletin, 3 (Sept. 20, 1951); “Why Churches Should Pay Taxes and Be Free,” New Age, 60: 205 (1952). See also “Tax Church Property, Universalists Urge,” Church and State Newsletter, 4(8): 5 (1951). For Hubbard, see also “The Taxation of Church Property,” in The Philosophy of Elbert Hubbard, 79 (Fabriano: Roycrofters, 1916). The Scottish Rite New Bulletin was well aware of Hubbard’s contribution. See “Several Reasons Why Churches Should Pay Taxes and Be Free,” Scottish Rite News Bulletin, 4 (Jan. 1951).

Notes to Chapter 8 / 375

21.

22. 23. 24.

25. 26.

27. 28. 29.

An article in the Christian Century in 1947 argued that Protestants would be in a better position to oppose Catholicism if they were to renounce their own exemption from property taxes. Hospitals and eleemosynary institutions owned by churches could come within areligious charitable exemptions, but Protestants, according to the Christian Century, should seek legislation denying exemption for churches and other clerical property—this being essential to prevent further “aggression” by “a powerful church” with ideas “incompatible with the American theory” of churchstate relations. “Churches Should Pay Taxes!” Christian Century, 454, 456 (Apr. 9, 1947). In 1950, more broadly, Protestants and Other Americans United published an article: “Movement Grows to Limit Tax Exemption of Church Properties,” Church and State Newsletter, 3(10): 3 (Nov. 1950). In the early 1960s, bodies of the Presbyterian Church and of the Churches of Christ pursued such questions. Milton R. Konvitz, Expending Liberties: Freedom’s Gains in Postwar America, 36–39 (New York: Viking Press, 1966). See also Studies in ChurchState Relations: The American Way, 18 (Washington: Protestants and Other Americans United for Separation of Church and State, 1963). John Bennett observed that the churches questioning exemption would probably “apply this only to property and not to gifts”—that is to say, they would apply it to exemptions, not deductions. John C. Bennett, Christians and the State, 234 (New York: Charles Scribner’s Sons, 1958). Such talk worried Catholics and even some Protestants. George Huntston Williams warned that to “introduce taxation of church properties would bring the whole problem into the arena of bitter political debate and precipitate the kind of social turmoil and reprisals the principle of separation of Church and State seeks to obviate.” Public Aid to Parochial Religion: A Transcript of a Discussion on a Vital Issue Presented by the Harvard Law Forum, 8 (Cambridge: Boston Law Forum, 1951). As pointed out by Bernard Wolfman, the notion clearly was older than Surrey’s work. Bernard Wolfman, book review, “Tax Expenditures: From Idea to Ideology,” Harvard Law Review, 99: 491, 493–94 (1985) (tracing the notion back to 1947). Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983); Cammarano v. United States, 358 U.S. 498, 513 (1959). FCC v. League of Women Voters, 468 U.S. 398. FCC v. League of Women Voters, 468 U.S. 364, 400 (1983); see also Renee Lettow Lerner, “Unconstitutional Conditions, Germaneness, and Institutional Review Boards,” Northwestern University Law Review, 101: 775, 788–89 (2007) (showing need for tighter fit between purpose and conditions for regulatory conditions, compared to purchases). Boris I. Bittker & George K. Rahdert, “The Exemption of Nonprofit Organizations from Federal Income Taxation,” Yale Law Journal, 85: 299, 321 (1976). Philip Hamburger, “Unconstitutional Conditions: The Irrelevance of Consent,” Virginia Law Review, 98: 479 (2012); see also Lloyd Hitoshi Mayer, “Nonprofits, Speech, and Unconstitutional Conditions,” Connecticut Law Review, 44: 1045 (2014) (arguing that “speech rights are generally inalienable as against the government under the First Amendment, and that therefore any abridgment of such rights by the government— whether direct or indirect—is subject to strict scrutiny”). Philip Hamburger “Unconstitutional Conditions: The Irrelevance of Consent,” Virginia Law Review, 98: 479, 486–87 (2012). Ibid., 98: 527–37. Ibid., 98: 530–31.

376 / Notes to Chapter 8 30. Regan v. Taxation with Representation, 461 U.S. 540, 544 (1983). 31. For this sort of logic, compare Restatement of Contracts, 2nd, §77, which resolves the question of whether there is consideration in conditional promises by asking whether both of the proffered alternatives would have been consideration. CHAPTER NINE

a. 1.

The Writings and Speeches of Oliver Cromwell, 2: 60–61, ed. Wilbur Cortez Abbott (Oxford: Clarendon Press, 1988), quoting Mercurius Militaris (April 22–29, 1649). For some of the scholarship justifying the restrictions in section 501(c)(3), see Roger Colinvaux, “The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition,” Case Western Reserve Law Review, 62: 686 (2012) (arguing that section 501(c)(3) is compatible with Citizens United); Miriam Galston, “When Statutory Regimes Collide: Will Citizens United and Wisconsin Right to Life Make Federal Tax Regulation of Campaign Activity Unconstitutional?,” University of Pennsylvania Journal of Constitutional Law, 13: 867, 915–28 (2011) (regarding overbreadth); Gina M. Lavarda, “Nonprofits: Are You at Risk of Losing Your Tax- Exempt Status?” Iowa Law Review, 94: 1473 (2009) (arguing that section 501(c)(3) grants a subsidy consistent with free speech); Eric R. Swibel, “Churches and Campaign Intervention: Why the Tax Man Is Right and How Congress Can Improve His Reputation,” Emory Law Review, 57: 1605 (2008) (arguing that §501(c)(3) is consistent with free exercise and is required by separation of church and state); Sarah Hawkins, “From Branch Ministries to Selma: Why the Internal Revenue Service Should Strictly Enforce the §501(c)(3) Prohibition against Church Electioneering,” Law and Contemporary Problems, 71: 185 (2008) (arguing that section 501(c)(3) is required by separation of church and state and to prevent divisiveness); Donald B. Tobin, “Political Campaigning by Churches and Charities: Hazardous for 501(c)(3)s, Dangerous for Democracy,” Georgetown Law Review, 95: 1313 (2007) (arguing that section 501(c)(3) grants a subsidy consistent with free speech and free exercise, and that it protects democracy); Ann M. Murphy, “Campaign Signs and the Collection Plate—Never the Twain Shall Meet?,” Pittsburgh Tax Review, 1: 35 (2003) (arguing that section 501(c)(3) is justified by separation of church and state and that its restrictions on speech are viewpoint neutral); Wilfred R. Caron & Deirdre Dessingue, “I.R.C. §502(c)(3): Practical and Constitutional Implications of ‘Political’ Activity Restrictions,” Journal of Law and Politics, 2: 169, 181 (1985) (arguing that section 501(c)(3) violates a free exercise right of exemption). For some of the scholarship questioning the constitutionality of section 501(c) (3)’s restrictions, see Erik W. Stanley, “LBJ, the IRS, and Churches: The Unconstitutionality of the Johnson Amendment in Light of Recent Supreme Court Precedent,” Regent University Law Review, 24: 237 (2012) (regarding free speech and free exercise); Lloyd Hitoshi Mayer, “Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise,” Boston University Law Review, 89: 1137, 1138 (2009) (regarding violation of Religious Freedom Restoration Act); Zachary S. Cummings, “Prophetic Speech and the Internal Revenue Code: Analyzing I.R.C. §501(c)(3) in Light of the Religious Freedom Restoration Act,” Regent University Law Review, 20: 151 (2007) (regarding violation of the Religious Freedom Restoration Act); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 1 (2003) (regarding motivations of senators and overbreadth); Richard W. Garnett, “A Quiet Faith? Taxes, Politics, and the Privatization of Religion,” Boston College Law Review, 42: 771 (2001) (regarding free exercise); Steffen N. Johnson, “Of Politics and Pulpits: A First Amendment Analysis of IRS Restrictions on the Political Activities of Religious Or-

Notes to Chapter 9 / 377

2. 3. 4.

5. 6. 7.

8.

9. 10. 11. 12. 13. 14.

15.

ganizations,” Boston College Law Review, 42: 875 (2001) (regarding free speech and free exercise); Randy Lee, “When a King Speaks of God, When God Speaks to a King: Faith, Politics, Tax Exempt Status, and the Constitution in the Clinton Administration,” Law and Contemporary Problems, 63: 391 (2000); Joseph S. Klapach, “Thou Shalt Not Politic: A Principled Approach to Section 501(c)(3)’s Prohibition of Political Campaign Activity,” Cornell Law Review, 84: 504, 517 (1999) (regarding free speech); Anne Berrill Carroll, “Religion, Politics, and the IRS: Defining the Limits of Tax Law Controls on Political Expression by Churches,” Marquette Law Review, 76: 217 (1992) (regarding free speech and vagueness); Edward McGlynn Gaffney Jr., “On Not Rendering to Caesar: The Unconstitutionality of Tax Regulation of Activities of Religious Organizations Relating to Politics,” DePaul Law Review, 40: 1 (1990) (regarding free speech and free exercise). Citizens United v. Federal Election Commission, 558 U.S. 310, 340 (2010). Buckley v. Valeo, 424 U.S. 1, 19 (1976); Citizens United v. Federal Election Commission, 558 U.S. 339 (2010). See Philip Hamburger, “IRB Licensing,” in Who’s Afraid of Academic Freedom, 172, ed. Akeel Bilgrami & Jonathan R. Cole (New York: Columbia University Press, 2014); Philip Hamburger, “Getting Permission,” Northwestern University Law Review, 101: 405, 408, 476 (2007). McConnell v. Federal Election Commission, 540 U.S. 93, 137 (2003) (inner quotation marks removed); Citizens United v. Federal Election Commission, 558 U.S. 340 (2010). Legal Services Corp. v. Velazquez, 531 U.S. 533, 548–49 (2001). IRS, Final Report, Project 302, Political Activities Compliance Initiative (2006), http:// www.irs.gov/pub/irs-tege/final_paci_report.pdf; Gina M. Lavarda, “Nonprofits: Are You at Risk of Losing Your Tax-Exempt Status?,” Iowa Law Review, 94: 1474, 1476–77 (2009). Miriam Galston, “When Statutory Regimes Collide: Will Citizens United and Wisconsin Right to Life Make Federal Tax Regulation of Campaign Activity Unconstitutional?” University of Pennsylvania Journal of Constitutional Law, 13: 867, 910 (2011). Grosjean v. American Press Co., Inc., 297 U.S. 233 (1936); Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 582–83 (1983). Ibid., 585. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); Citizens United v. Federal Election Commission, 558 U.S. 365 (2010). Ibid., 340–41. First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). Studies and Notes Supplementary to Stubbs’ Constitutional History, 340, ed. Charles Petit Dutaillis & Georges Lefebvre (Manchester: Manchester University Press, 1929). See also W. Mark Ormrod, “Murmur, Clamour and Noise: Voicing Complaint and Remedy in Petitions to the English Crown,” in Medieval Petitions: Grace and Grievance, 153, ed. W. Mark Ormrod, Gwilym Dodd, & Anthony Musson (York: York Medieval Press, 2009). Memorandum, Croke, Reports, 2: 37 (1604); see also Moore, Reports (K.B.) 755; An Act against Tumults and Disorders upon P[ret]ence of P[re]paring or P[re]senting Public Peti[ti]ons or Other Addresses to His Majesty or Parliament, 13 Charles II, c.5 (1661) (with an exception for those who first secured permission); By the King, A Proclamation Against Tumultuous Petitions (London: 1679). In support of the Crown’s view, the early seventeenth-century opinions were republished in The Judges Opinions Concerning Petitions to the King in Publick Matters (London: 1679).

378 / Notes to Chapter 9 16. [Daniel Defoe], Mr. S[peake]R., The Enclosed Memorial, 1–4 (n.p.: [1701]). For more about this petition and its context, see Philip Hamburger, “Revolution and Judicial Review: Chief Justice Holt’s Opinion in City of London v. Wood,” Columbia Law Review, 94: 2091, 2098, 2100–01 (1994). This was an echo of what the unclean man in the country of the Gadarenes told Jesus, according to Mark 5:9. The question of mass petitioning arose again during the Excise Riots. The Right of British Subjects to Petition and Apply to Their Representatives, Asserted and Vindicated (London: 1733). 17. Nicholas Hardinge, “Catalogue of the Papers of the House of Commons,” 337–38, 345, 409, 815 (1737), manuscript in possession of the author. Hardinge was clerk of the House of Commons. For another copy of his catalog, see British Library, Lansdowne Ms 553. 18. Randolph W. Church, Virginia Legislative Petitions: Bibliography, Calendar, and Abstracts from Original Sources, 6 May 1776–21 June 1782, at 48, 110, 365 (Richmond: Virginia State Library, 1984). When the 1785 Presbyterian memorial came from individuals rather than the Hanover presbytery, the memorial carefully said as much. William Addison Blakely, American State Papers on Sunday Legislation, 96, 212 (Washington: Religious Liberty Association, 1911). 19. On the ambiguity arising from this linkage, see John D. Inazu, “The Forgotten Freedom of Assembly,” Tulane Law Review, 84: 565, 573–75 (2010). Already during the Revolution, the Continental Congress linked peaceable assembly and petitioning, resolving that Americans “have a right peaceably to assemble, consider of their grievances, and petition the king.” Bill of Rights [and] a List of Grievances (Oct. 1774), in A Decent Respect for the Opinions of Mankind: Congressional State Papers 1774–1776, at 55, ed. James H. Hutson (Washington: Library of Congress, 1975). 20. In Edwards v. South Carolina, the Supreme Court held that the “boisterous,” “loud,” and “flamboyant” conduct of a large crowd outside the South Carolina statehouse could not justify interference with their rights peaceably to assembly and to petition. Edwards v. South Carolina, 372 U.S. 229, 233 (1963). 21. For the freedom of speech in persuading government, notwithstanding the antitrust laws, see Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657 (1965). 22. The House resolved in 1836 that “all petitions, memorials, resolutions, propositions, or papers, relating in any way, or to any extent whatsoever, to the subject of slavery, or the abolition of slavery, shall . . . be laid upon the table, and that no further action whatever shall be had thereon.” Register of Debates, 24-1: 4052–53. For the proposal, see ibid., 3757. For the abandonment of the rule, see Jeffery A. Jenkins & Charles Stewart III, “The Gag Rule, Congressional Politics, and the Growth of Anti-Slavery Popular Politics,” 15 (draft of Apr. 16, 2005), http://www.academia.edu/153066/ The_Gag_Rule_Congressional_Politics_and_the_Growth_of_Anti - Slavery_Popular _Politics. The question arose again in 1854 when more than three thousand New England antislavery clergymen protested against the Nebraska Bill. See Right of Petition: New England Clergymen, Remarks of Messrs Everett . . . on the Memorial from Some 3,050 Clergymen of All Denominations and Sects in the Different States in New England, Remonstrating against the Passage of the Nebraska Bill, Senate of the United States, Mar. 14, 1854 (Washington: 1854). 23. An Independent Thinker [Charles Francis Adams], “The Slavery Question Truly Stated,” Advocate (June 24, 1836), 6; Diary of Charles Francis Adams, 408 (Cambridge: Belknap Press, 1974).

Notes to Chapter 9 / 379 24. The leading advocate of the right to petition, John Quincy Adams, wrote a pamphlet entitled Speech of John Quincy Adams of Massachusetts, upon The Right of the People, Men and Women, to Petition (Washington: Gales & Seaton, 1838). He also wrote to his constituents about the possibility of petitions from slaves, for in the course of the controversy, his eyes were opened to “a question which had never occurred to me before, . . . namely, whether the right to petition Congress could in any case be exercised by slaves?” And after giving to the subject all the reflection of which I was capable, I came to the conclusion that however doubtful it might be whether slaves could petition Congress for anything incompatible with their condition as slaves, and with their subjection to servitude, yet that for all other wants, distresses and grievances incident to their nature as men and to their relations as members, degraded members as they may be of this community, they do enjoy the right of petition.

25.

26.

27.

28.

29.

Even though not counted fully as persons by the U.S. Constitution, they had this right, and this was particularly evident as to questions on which “they alone could in the nature of things speak for themselves, and their masters could possibly speak for them.” John Quincy Adams, To the Inhabitants of the 12th Congressional District of Massachusetts (Mar. 3, 1837), New York Historical Society, Gilder Lehrman Collection, No. 639.05, http://www.gilderlehrman.org/sites/default/files/inline - pdfs/ Primary%20Documents%20on%20Slavery,%201830-1840.pdf. On account the vagueness of the “no substantial part” test, it is difficult to figure out what percentage of the right to speak and petition to influence legislation section 501(c)(3) leaves to churches, schools, and charities. One case, Seasongood v. Commissioner of Internal Revenue, 227 F.2d 907 (6th Cir., 1955), requires the IRS to allow such speech and petitioning to be at least 5 percent of their activities. Incidentally, although the Supreme Court has upheld a severe congressional limit on what veterans can spend to dispute their veterans benefits, that concerned only administrative proceedings for benefits, not judicial proceedings on constraints. Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985). Here, moreover, the congressional limit bars not what is done in the necessarily constrained circumstances of an adjudication but what churches and other nonprofit groups can say even on the streets, outside institutions such as courts and Congress. On the Latin contrast, see Robert Cottrol, The Long, Lingering Shadow: Slavery, Race and Law in the American Hemisphere, 54 (Athens: University of Georgia Press, 2013); Robert Cottrol, “The Long Lingering Shadow: Law, Liberalism, and Cultures of Racial Hierarchy and Identity in the Americas,” Tulane Law Review, 76: 11, 16 (2001). Of course, the Constitution distinguishes between persons who owe allegiance and thus have the obligation and protection of the law and those who do not owe allegiance and so are outside this obligation and protection, but this is another matter. Philip Hamburger, “Beyond Protection,” Columbia Law Review, 109: 1823, 1826 (2009). John Locke, A Letter Concerning Toleration (London: 1689); An Act for Exempting their Majesties Subjects, Dissenting from the Church of England, from the Penalties of Certain Laws, 1 William & Mary, cap. 18 (1689). Philip Hamburger, “More Is Less,” Virginia Law Review, 90: 835 (2004); Philip Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review, 60: 915 (1992). First Draft of the Virginia Declaration of Rights (c. May 20–26, 1776), in The Papers of

380 / Notes to Chapter 9 George Mason, 1: 278, ed. Robert A. Rutland (Chapel Hill: University of North Carolina Press, 1970). 30. An Act for Establishing Religious Freedom (1786), Statutes at Large of Virginia, 12: 84–86, ed. William Waller Hening (Richmond: 1823). 31. Philip Hamburger, “Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal,” Notre Dame Law Review, 90: 1922, 1928–29 (2015). See also ibid., 1930–33, 1944, 1968, 1971. CHAPTER TEN

1. 2. 3. 4.

5.

6. 7. 8. 9.

IRS, Form 1023, Part VIII (Rev. Dec. 2013). IRS, Instructions for Form 1023, at 9 (Rev. June 2006). A Decree of Starre-Chamber, Concerning Printing, sig. [E2v], §XV (London: 1637) (specifying who can have “the use of a press, or presses and printing-house”). As explained elsewhere, “The power to revoke or threaten to revoke tax exemption is a most effective instrument of control. (In recent years [prior to 1977] such threats have been made against religious organizations that opposed the Vietnam War and advocated sundry unpopular causes.)” Peter L. Berger & Richard John Neuhaus, To Empower People: The Role of Mediating Structures in Public Policy, 38 (1977; Washington: American Enterprise Institute, 1981). For the vagueness and overbreadth, see Wilfred R. Caron & Deirdre Dessingue, “I.R.C. §502(c)(3): Practical and Constitutional Implications of ‘Political’ Activity Restrictions,” Journal of Law and Politics, 2: 169, 177, 193 (1985); Miriam Galston, “When Statutory Regimes Collide: Will Citizens United and Wisconsin Right to Life Make Federal Tax Regulations of Campaign Activity Unconstitutional?,” University of Pennsylvania Journal of Constitutional Law, 13: 867, 920 (2011); Kim Bouchillon, “Guiding Lobbying Charities into a Safe Harbor: Final Section 501(h) and 4911 Regulations Set Limits for Tax-Exempt Organizations,” Mississippi Law Journal, 61: 158, 159, 163 (1991); Deirdre Dessingue Halloran & Kevin M. Kearney, “Federal Tax Code Restrictions on Church Political Activity,” Catholic Law, 38: 105, 130–31 (1998); Benjamin Leff, “ ‘Sit Down and Count the Cost’: A Framework for Constitutionally Enforcing the 501(c)(3) Campaign Intervention Ban,” Virginia Tax Review, 28: 673, 686 (2009); Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 16, 41, 126–39 (Oxford: Oxford University Press, 2011). For an admission from the IRS in 1954, see Assistant Commissioner Norman Sugarman’s testimony before the Reese Committee in 1954, published as “Application of Tax Laws to Tax Exempt Organizations,” Social Legislation Information Service, No. 67: 429, 437 (July 5, 1954). See also Tax-Exempt Foundations: Hearings before the Special Committee to Investigate Tax-Exempt Foundations and Comparable Organizations, House of Representatives, 83rd Congress, Second Session, on H. Res. 217, Part I, at 423 (Washington: U.S. Government Printing Office, 1954). Philip Hamburger, “Getting Permission,” Northwestern University Law Review, 101: 405, 416–20 (2007). An Act for Exempting Their Majesties Subjects, Dissenting from the Church of England, from the Penalties of Certain Laws, 1 William & Mary, cap. 18 (1689). The Virginia Chronicle (1790), The Writings of the Late Elder John Leland, 106–07, ed. L. F. Greene (New York: 1845). First Draft of the Virginia Declaration of Rights (c. May 20–26, 1776), in The Papers of George Mason, 1: 278, ed. Robert A. Rutland (Chapel Hill: University of North Carolina Press, 1970).

Notes to Chapter 10 / 381 10. For the history of the shifting methods of controlling the press and the attempts (beginning in 1696) to withdraw questions from juries, see Philip Hamburger, “The Development of the Law of Seditious Libel and the Control of the Press,” Stanford Law Review, 37: 661 (1985). 11. In England, this tug- of-war between government and defendants came to an end when, in 1792, Fox’s Libel Act secured their full jury rights. In America, already in Zenger’s Case in 1735, a defendant asserted his right to have the jury decide the whole matter. For the eighteenth- century debate as to whether juries could decide the whole question, see Leonard Levy, The Emergence of a Free Press, 338–40 (New York: Oxford University Press, 1985). 12. Speiser v. Randall, 357 U.S. 513, 529 (1958). 13. True the Vote v. IRS, (D.C. Cir. 2016), slip opinion; Z St. v. Koskinen, 791 F.3d 24, 28 (D.C. Cir. 2015); Statement of William J. Lehrfeld, Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 142 (Washington: U.S. Government Printing Office, 1987). See also Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 139–44 (Oxford: Oxford University Press, 2011); Joseph S. Kaplach, “Thou Shalt Not Politic: A Principled Approach to Section 501(c)(3)’s Prohibition of Political Activity,” Cornell Law Review, 84: 504, 518 (1999). For the IRS treatment of Tea Party organizations, see, for example, NorCal Tea Party Patriots v. IRS, No. 1:13cv341 (D.C. S.D. OH Nov. 4, 2016). Of course, congressmen have repeatedly seen this power of the IRS as an opportunity. For example, in 1964, “Senator Harry Byrd, the then Chairman of the Finance Committee sought to have the Internal Revenue Service take away the tax exempt status of the National Council of Churches for its efforts in support of the Civil Rights Act of 1964.” Lobbying and Political Activities of Tax- Exempt Organizations: Hearings Before the Sub-Committee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (March 12 & 13, 1987) (Washington: U.S. Government Printing Office, 1987). CHAPTER ELEVEN

1.

Sherbert v. Verner, 374 U.S. 398, 406 (1963). Lest one think the statement in Sherbert was an inadvertent overstatement, it should be noted that the Court also said it was “highly doubtful” whether the sort of evidence presented in that case “would be sufficient to warrant a substantial infringement of religious liberties.” Ibid., 407. Decades later, Justice O’Connor explained that a compelling government interest “ ‘can justify exacting a sacrifice of First Amendment freedoms.’ ” Employment Division v. Smith, 494 U.S. 872, 895 (1990) (quoting Bowen v. Roy, 476 U.S. 693, 728 [1986], J. O’Connor concurring in part). Like Anti- Federalists, Federalists understood constitutional rights to be exceptions to powers. Alexander Hamilton, in his defense of the U.S. Constitution, explained that “[b]y a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.” Similarly, when James Madison overcame his objections to a bill of rights, he introduced the initial draft of the Bill of Rights on the floor of the House of Representatives with the observation that “a bill of rights” would “enumerat[e] particular exceptions to the grant of power.”

382 / Notes to Chapter 11 Alexander Hamilton, Federalist Number 78, The Federalist, 524, ed. Jacob E. Cooke (Middletown: Wesleyan University Press, 1961); Speech of James Madison (June 8, 1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress, 83, ed. Helen E. Veit et al. (1991). 2. Philip Hamburger, “Inversion of Rights and Power,” Buffalo Law Review, 63: 731, 734 (2015). 3. Philip Hamburger, “Getting Permission,” Northwestern University Law Review, 101: 405, 413–14 (2007); Philip Hamburger, “More Is Less,” Virginia Law Review, 90: 835, 874 (2004). 4. Philip Hamburger, “Getting Permission,” Northwestern University Law Review, 101: 405, 428–30 (2007). The application of the compelling-government-interest test to the core free exercise right to be free from penalties on religion can be observed in Lukumi v. Hialeah, in which the Supreme Court found that the Hialeah ordinances imposed discriminatory constraints on the basis of religion but did not promptly conclude that the ordinances were unconstitutional. Instead, with an echo of its exemption cases, it continued with an inquiry as to whether there was a compelling government interest. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531–32, 542 (1993). This additional inquiry profoundly undermines the First Amendment’s protection against laws that penalize on the basis of religion. Philip Hamburger, “More Is Less,” Virginia Law Review, 90: 835, 879–81 (2004). 5. Philip Hamburger, “Inversion of Rights and Power,” Buffalo Law Review, 63: 731, 765–775 (2015). 6. Citizens United v. Federal Election Commission, 558 U.S. 310, 340, 365 (2010). On the question of a categorical barrier to restricting political speech, Eugene Volokh has observed that “[t]here are restrictions the Court would strike down . . . even though they are narrowly tailored to serve a compelling state interest.” He further argues that “an approach that operates through categorical rules—such as a per se ban on contentbased speech restrictions imposed by the government as sovereign—coupled with categorical exceptions, such as the exceptions for fighting words, obscenity and copyright. . . . would better direct the Court’s analysis, and would avoid the erroneous results that strict scrutiny seems to command.” Eugene Volokh, “Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny,” University of Pennsylvania Law Review, 144: 2417 (1997). Indeed, in Legal Services Corp. v. Velazquez—a spending case—the Court focused on whether the restriction violated the First Amendment without bothering to consider whether the restriction was justified by compelling government interests. Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001). 7. Similarly, Crimm and Winer note the importance of taking account of “the origin of the house of worship’s funds used to support speech.” Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 311 (Oxford: Oxford University Press, 2011). 8. Robert G. Natelson, “The Original Scope of the Congressional Power to Regulate Elections,” Journal of Constitutional Law, 13: 1, 44 (2010); Bradley A. Smith, “Separation of Campaign and State,” George Washington Law Review, 81: 2038 (2013). 9. John Rawls, Political Liberalism, expanded ed., 360–63 (New York: Columbia University Press, 2005). For Rawls, the equalization is required by the Fourteenth Amendment’s Equal Protection Clause. Ibid. 10. Cass R. Sunstein, Democracy and the Problem of Free Speech, xvii, xix, 62, 86, 94, 98, 248–49 (New York: Free Press, 1993). 11. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality, 366 (Cambridge:

Notes to Chapter 11 / 383

12.

13.

14.

15.

Harvard University Press, 2000). Dworkin and some of the problems with his views are discussed by Nina J. Crimm & Laurence H. Winer, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts, 306 (Oxford: Oxford University Press, 2011). James Wilson, State House Yard Speech: The Documentary History of the Ratification of the Constitution, 2: 2: 168, ed. Merrill Jensen (Madison: State Historical Society of Wisconsin, 1976). Of course, the phrase “separation of church and state” does not have only one possible meaning, and it is sometimes said to cut against section 501(c)(3)’s silencing of churches. See, for example, Johnny Rex Buckles, “Does the Constitutional Norm of Separation of Church and State Justify the Denial of Tax Exemption to Churches that Engage in Partisan Political Speech?” Indiana Law Journal, 84: 447 (2009). Philip Hamburger, Separation of Church and State, 111–17, 120–26, 130–33, 144, 147–55, 192, chapter 8 (Cambridge: Harvard University Press, 2002); Marc M. Arkin, “The Federalist Trope: Power and Passion in Abolitionist Rhetoric,” Journal of American History, 88: 75, 83–83 (2001). Philip Hamburger, Separation of Church and State, 483–86 (Cambridge: Harvard University Press, 2002); Philip Hamburger, “Against Separation,” Public Interest, 155: 177, 182, 185, 187–89 (2004). C H A P T E R T W E LV E

1.

2.

Another alternative channel is through a for-profit organization, but this is not currently a significant pathway. Roger Colinvaux, “The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition,” Case Western Reserve Law Review, 62: 686735 (2012). Ibid., 62: 686, 736 (2012); C.F.R. 26: §1.501(c)(4)-1(a) (promoting social welfare does not include campaigning); Rev. Rul. 81-95, 1981-1 C.B. 332 (campaigning cannot be primary purpose or activity); B. Holly Shadler, The Connection: Strategies for Creating and Operating 501(c)(3)s, 501(c)(4)s and Political Organizations, 11–13 (Advocacy Resource, 2012). The IRS states that a section 501(c)(4) organization must avoid going so far as to be no longer “primarily engag[ing] in activities that promote social welfare.” At least as to campaign speech, the IRS has hinted at the implications, but not with much clarity: “Although the promotion of social welfare within the meaning of section 1.501(c)(4)- 1 of the regulations does not include political campaign activities, the regulations do not impose a complete ban on such activities for section 501(c)(4) organizations.” Revenue Ruling 81-95, 1981 C.B. 332. For discussion, see Joseph S. Klapach, “Thou Shalt Not Politic: A Principled Approach to Section 501(c)(3)’s Prohibition of Political Campaign Activity,” Cornell Law Review, 84: 504, 510, 515 (1999); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 1, 82 (2003); Miriam Galston, “When Statutory Regimes Collide: Will Citizens United and Wisconsin Right to Life Make Federal Tax Regulations of Campaign Activity Unconstitutional?,” University of Pennsylvania Journal of Constitutional Law, 13: 867, 877 (2011). As Miriam Galston has observed, “[T]he 501(c)(4) alternate channel for 501(c)(3) groups that wish to influence elections may provide the 501(c)(3) groups with a less extensive alternate channel than was available to the plaintiffs in Taxation with Representation.” Ibid., 906. Similarly, to the extent a section 501(c)(4) organization engages in lobbying that is unrelated to its social welfare purpose, it eventually risks its status as a section 501(c)(4) organization. Thus, a section 501(c)(3) organization’s section 501(c)(4) alternate channel is an unrestricted alternate only to the extent of the relatedness of the

384 / Notes to Chapter 12

3.

4.

5. 6.

lobbying to the exempt purpose of the organization. Roger Colinvaux, “The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition,” Case Western Reserve Law Review, 62: 686, 736–37 (2012). It is often very difficult to discern what lobbying lies outside an organization’s social welfare purposes. 26 U.S.C. 527(e)(2); 26 C.F.R. §1.527-6(f), (g) (1999); Branch Ministries v. Rossotti, 211 F.3d 137, 143 (D.C. Cir. 2000) (explaining that the political action committee is “free to participate in political campaigns”). For this structure, see Miriam Galston, “When Statutory Regimes Collide: Will Citizens United and Wisconsin Right to Life Make Federal Tax Regulation of Campaign Activity Unconstitutional?” University of Pennsylvania Journal of Constitutional Law, 13: 867, 905–06 (2011). For the different possible configurations of 501(c)(3), 501(c)(4), and 527 organizations, see Ward L. Thomas & Judith E. Kindell, “S. Affiliations among Political, Lobbying and Educational Organizations,” 2000 EO CPE Text 11/ 265, at https://www.irs.gov/pub/irs -tege/eotopics00.pdf. These justices opined: “The constitutional defect that would inhere in §501(c)(3) alone is avoided by §501(c)(4),” for the complainant in the case “may use its present § 501(c)(3) organization for its non- lobbying activities and may create a §501(c) (4) affiliate to pursue its charitable goals through lobbying.” Regan v. Taxation with Representation, 461 U.S. 540, 552 (1983). Citizens United v. Federal Election Commission, 558 U.S. 310, 337 (2010). As summarized by two commentators, “The IRC 501(c)(3) officials should not direct or assist in the political intervention activities of other organizations in their capacity as IRC 501(c)(3) officials,” and “[t]he IRC 501(c)(3) organization should not coordinate its activities with a non-IRC 501(c)(3) organization for partisan political purposes, including any coordination with a candidate or IRC 527 organization.” Ward L. Thomas & Judith E. Kindell, “Affiliations Among Political, Lobbying and Educational Organizations,” 2000 EO CPE Text 11/ 265, https://www.irs.gov/pub/irs -tege/eotopics00.pdf. CHAPTER THIRTEEN

1.

Congressional Record, 78: 5861 (1934); Oliver A. Houck, “On the Limits of Charity,” Brooklyn Law Review, 69: 21–23 (2003). CHAPTER FOURTEEN

1.

2.

3.

A Sectarian, “Letter to the Printer,” Kentucky Gazette (Dec. 22, 1787); Review of a Pamphlet on the Trust Deed of the Hanover Church, 5–6 (Boston: 1828); [Isaac Wise], “Politics,” Israelite, 2(2): 12 (July 20, 1855). More generally, see Philip Gleason, “American Catholics and Liberalism, 1789–1960,” in Catholicism and Liberalism Contributions to American Public Philosophy, 51, ed. R. Bruce Douglass & David Hollenbach (Cambridge: Cambridge University Press, 1994); Philip Hamburger, “Liberality,” Texas Law Review, 78: 1263 (2000). Henry W. Bellows, The Christian Liberal. A Sermon, Delivered before the Western Unitarian Conference, at Buffalo, 11 (Buffalo: 1855); The Truth Seeker Collection of Forms, Hymns, and Recitations, Original and Selected—For The Use of Liberals, 7, 9–10 (New York: D. M. Bennett, Liberal & Scientific Publishing House, 1877). Making America Catholic by Order of Pope Pius X: Roman Catholic Principles as Defined by Popes, Prelates and Priests, 64 (Saint Paul: A. H. Beach, 1924); “Kansas Methodist Conference Hails POAU Action Program,” Church and State: A Monthly Review, 7(10): 1 (Nov. 1954); Norman S. Meese, “Faith and Freedom,” New Age, 62: 668, 669 (1954).

Notes to Chapter 14 / 385 A telling message came from a member of the Southern Jurisdiction of the Scottish Rite. After giving a speech on “how to get along with the general public, particularly Catholics,” Chester Davis of Missouri noted that “I might have included that Masons were not ‘haters,’ . . . but it wasn’t necessary.” Instead, he simply urged them: “If Catholics are bigots, try not to be a bigot yourself through intolerance and hate.” What did this mean? “Fight always to preserve our public schools because they teach and practice tolerance.” Chester L. Davis, “Tolerance Toward Catholics?” New Age, 61: 299–300 (1953). Of course, this was at a time when many public schools still required prayers and Bible reading, which were unacceptable to many Catholics. 4. Zechariah Chafee, Free Speech in the United States, 381–84 (1941; Cambridge: Harvard University Press, 1948); Zechariah Chafee, The Blessings of Liberty (Philadelphia: J. B. Lippincott Company, 1956); Thomas Emerson, A System of Freedom of Expression, 244, 640 (New York: Random House, 1970); Norman Dorsen, Frontiers of Civil Liberties, 117, 133, 141, 149, 161, 171 (New York: Pantheon Books, 1968). For silence on this use of tax law, see also Hugo LaFayette Black, A Constitutional Faith, 43 (New York: Alfred A. Knopf, 1968). 5. For the foreign communist propaganda, see, for example, Clearing the Main Channels, 35th Annual Report of the American Civil Liberties Union, July 1, 1954, to June 30, 1955, at 12 (New York: American Civil Liberties Union, [1955]). For the domestic propaganda, see What Do You Mean, Free Speech? (New York: ACLU, 1946). To its credit, the ACLU also declared: “A democracy is founded on liberty for all sides, with the majority in control and with the minority enjoying the unrestricted right of opposition. And among them anti-democratic minorities have precisely the same rights as the pro-democratic; otherwise no democracy.” Ibid. But it did not recognize the danger from section 501(c)(3). For the ACLU’s opposition to private speech as “censorship”, see, for example, “Self-appointed” Catholic “Censors” and their boycotts, Clearing the Main Channels, 12 (New York: American Civil Liberties Union, [1955]). For a slightly later overview, see Private Group Censorship and the NODL: A Statement by the American Civil Liberties Union (New York: ACLU, 1958). 6. George A. Coe, Educating for Citizenship: The Sovereign State as Ruler and as Teacher, 69, 71 (New York: Charles Scribner’s Sons, 1932). 7. Bd. of Educ. of Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 251–52 (1968) (J. Black, dissenting) (citation omitted); Edward McGlynn Gaffney Jr., “Hostility to Religion, American Style,” DePaul Law Review, 42: 363, 382 (1992); Thomas C. Berg, “AntiCatholicism and Modern Church-State Relations,” Loyola University Chicago Law Journal, 33: 121 (2001). 8. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added); William O. Douglas, “The Black Silence of Fear,” in Freedom and Public Education, 93, ed. Ernest O. Melby & Morton Puner (New York: Praeger, 1953). 9. Richard W. Garnett, “Introduction: Religion, Division, and the Constitution” William & Mary Bill of Rights Journal, 15: 1 (2006); Lemon v. Kurtzman, 403 U.S. 602, 622 (1971) (emphasis added); Van Orden v. Perry, 545 U.S. 667, 677, 698, 704–05 (2005), (Breyer concurring and Stevens dissenting); both quotations discussed by Garnett. 10. Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972). 11. Sherbert v. Verner, 374 U.S. 398, 402 (1963). For the First Amendment’s use of “religion” rather than “a religion,” see Douglas Laycock, “ ‘Nonpreferential’ Aid to Religion: A False Claim About Original Intent,” William & Mary Law Review, 27: 875, 881 (1986) (regarding Establishment Clause). 12. The theological liberalism of the mid-twentieth-century justices is suggested by the

386 / Notes to Chapter 14 number of them who were masons. Ronald E. Heaton, Justices of the Supreme Court Identified as Masons (Washington: Masonic Service Association of the United States, 1969). 13. Speiser v. Randall, 357 U.S. 513, 518 (1958); Regan v. Taxation with Representation, 461 U.S. 540, 544 (1983). 14. Charles Clinton Marshall, Governor Smith’s American Catholicism, 3 (New York: Dodd, Mead & Company, 1928); George H. Williams, Waldo Beach, & H. Richard Niebuhr, “Issues between Catholics and Protestants at Midcentury,” Religion in Life, 23: 163, 198 (Spring 1954); John C. Bennett, Christians and the State, 271 (New York: Charles Scribner’s Sons, 1958); John Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review, 64: 765, 769 (1997); Regan v. Taxation with Representation, 461 U.S. 540, 544 (1983). CHAPTER FIFTEEN

a. 1.

2. 3.

4.

5.

6.

William Tennant, On the Dissenting Petition: Delivered in the House of Assembly, CharlesTown, South Carolina, Jan. 11, 1777, at 9 (Charleston: 1777). Incidentally, early versions of what became section 501(c)(3) spoke not of “organizations,” but of “corporations” or “associations.” For example, the 1894 income federal tax statute exempted “corporations, companies, or associations organized and conducted solely for charitable, religious, or educational purposes.” An Act to Reduce Taxation, to Provide Revenue for the Government, and For Other Purposes, §32 (Aug. 27, 1894), Statutes at Large, 28: 556. The 1916 War Revenue Act exempted income received by any “[c]orporation or association organized and operate exclusively for religious, charitable, scientific, or educational purposes.” An Act to Increase the Revenue, and for Other Purposes, §11(a) (Sept. 8, 1916). The 1919 Internal Revenue regulations on this clause declared that “associations formed to disseminate controversial or partisan propaganda are not educational within the meaning of the statute.” Reg. 45, Art. 517, in Treasury Decisions under Internal-Revenue Laws of the United States, 21: 285 (1920). Bank of the United States v. Deveaux, 9 U.S. 61, 87 (1809). The Supreme Court briefly abandoned the Deveaux rule in 1844 and then, in 1853, returned to it, but with a conclusive presumption that all of a corporation’s shareholders were citizens of the state where it was incorporated. Only in 1958 did Congress flatly dictate that a corporation should be deemed a citizen of any state by which it has been incorporated. Paul E. Lund, “Federally Charted Corporations and Federal Jurisdiction,” Florida State University Law Review, 36: 317, 328–29 (2009). It often is assumed that limited liability is the distinguishing advantage of incorporation. Limited liability, however, is only one of the advantages of the corporate form, and in fact there is nothing distinctively corporate about limited liability. For example, individuals can secure limited liability through a range of forms including not only a business corporation but also a limited liability partnership and even a trust. Thomas E. Buckley, SJ, “After Disestablishment: Thomas Jefferson’s Wall of Separation in Antebellum Virginia,” Journal of Southern History, 61: 451 (1995); Philip Hamburger, “Illiberal Liberalism: Liberal Theology, Anti- Catholicism, and Church Property,” Journal of Contemporary Legal Issues, 12: 693, 711 (2002). Zephaniah Swift, A System of the Laws of the State of Connecticut, 1: 226 (Windham: 1795), quoting William Blackstone, Commentaries on the Law of England, 1: 463 (1765). See also James DeWitt Andrews, American Law: A Treatise on the Jurisprudence,

Notes to Chapter 15 / 387 Constitution and Laws of the United States, 266, 494, 568–69 (Chicago: Callaghan & Company, 1900). To be sure, where corporations fail to maintain their corporate form and finances, and thereby undermine the distinction between the corporation and, for example, its owners, the courts will not recognize the distinction but will “pierce the corporate veil.” This, however, is a remedy for failures to sustain the distinctiveness of corporation, and it thus confirms that where corporations keep themselves distinct, they are persons for purposes of law. 7. Arguably, the term “citizens” is not even confined to individuals. See Stewart Jay, “The Curious Exclusion of Corporations from the Privileges and Immunities Clause of Article IV,” Hofstra Law Review, 44: 79 (2015). 8. Philip Hamburger, Is Administrative Law Unlawful?, 208–09 (Chicago: University of Chicago Press, 2014). 9. In August 1789 and December 1790, Congress received memorials from “the Pubic Creditors of Pennsylvania.” In April 1790, Congress received a petition from “the Massachusetts General Court.” In December 1790 and January 1791, when Congress was considering a militia bill, it received petitions from the Quaker’s “Philadelphia Yearly Meeting,” from the “New England Yearly Meeting,” and from “the Manufacturers, Mechanics, and Inhabitants of Philadelphia”—the manufactures surely including at least partnerships. Petition Histories and Nonlegislative Official Documents, in Documentary History of the First Federal Congress of the United States of America, 8: 144, 221, 224, 226, 260, 275 (Baltimore: Johns Hopkins University Press, 1998). 10. For Madison’s and Hamilton’s view of constitutional rights as exceptions to power, see chapter 11, n. 1. CHAPTER SIXTEEN

a. b.

1.

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); FEC v. Mass. Cit. for Life, 479 U.S. 238, 259 (1986). Opinion of Justices of the Supreme Judicial Court on an Article of the Confederation (June 22, 1785) (docketed Oct. 19, 1785), Mass. State Archive, Senate Documents, Rejected Bills, 1785, No. 344, Box 11 (emphasis omitted); Encyclopedia Americana, 9: 57, ed. Francis Lieber (Philadelphia 1832) (noting that while “[t]he English statutes of mortmain have been held to be in force in Pennsylvania . . . they have not been expressly recognized as being a part of the common law in other states”). Similarly, see Nathan Dane, A General Abridgment and Digest of American Law, 4: 5 (Boston: 1824) (observing that mortmain statutes had not been adopted in the New England states); Joseph K. Angell & Samuel Ames, A Treatise on the Law of Private Corporations Aggregate, 80 (Boston: 1832); Act (April 1833), PL 167, in Purdon’s Digest: A Digest of the Laws of Pennsylvania, 320, §27 (Philadelphia: 1853). For further details of the Massachusetts opinion, see Philip Hamburger, Law and Judicial Duty, 597–600 (Cambridge: Harvard University Press, 2008). Incidentally, when the restriction on propaganda to influence legislation was adopted in 1934, the Chicago Tribune protested the statute’s “sharp and unwarranted discrimination between various types of not-for-profit corporations”: It distinguishes between labor unions and farmers’ organizations on the one hand and professional associations like the American Medical Association on the other. The A.F. of L. may propagandize from one year’s end to the next for legislation desired by labor without losing its tax exemption, but the moment

388 / Notes to Chapter 16 the physicians’ union speaks in defense of the doctors’ right to prescribe medicine despite the Volstead Act the tax exemption of the A.M.A. is jeopardized. The moment the American Bar Association or a state bar association seeks to improve legal administration through an amendment of the laws it, too, may be penalized if the courts determine that this constitutes a “substantial” part of the association’s activities.

2. 3.

4.

The Tribune concluded that “either they should all be taxed or none of them should be taxed.” “The Taxation of Propaganda,” Chicago Daily Tribune (May 10, 1934). For Madison’s and Hamilton’s view of constitutional rights as exceptions to power, see chapter 11, n. 1. According to one observer, “Organizing and managing the activities of multiple tax-exempt organizations are not always easy and are not the best strategy for every group. The Internal Revenue Service . . . has provided limited guidance on setting up affiliated entities. Adding a new entity also increases the costs and administrative burden of managing operations.” B. Holly Shadler, The Connection: Strategies for Creating and Operating 501(c)(3)s, 501(c)(4)s and Political Organizations, 1 (Advocacy Resource, 2012). John C. Bennett, Christians and the State, 291–92 (New York: Charles Scribner’s Sons, 1958). CHAPTER SEVENTEEN

a. 1.

“Keep the U.S. ‘White’!” Protestant, 11: 79 (July 1931). For the mixed views of progressives on propaganda, see J. Michael Sproule, Propaganda and Democracy: The American Experience of Media and Mass Persuasion, 53 (Cambridge: Cambridge University Press, 1997). Progressives tended to be very worried about the propaganda from corporations and nonprogressive governments but less so about the propaganda used by progressive government to “manage” democracy. 2. Woodrow Wilson, “The Study of Administration,” Political Science Quarterly, 2: 197, 208–09 (1887). 3. For my definition of the “knowledge class,” see Philip Hamburger, Is Administrative Law Unlawful?, 372–74 (Chicago: University of Chicago Press, 2014). 4. Woodrow Wilson, “Character of Democracy in the United States,” Atlantic Monthly, 64: 577, 586 (1889); Walter Lippmann, Public Opinion, 32 (1922; New York: Macmillan Company, 1934). For scholarship differentiating Lippmann and Bernays, see Sue Curry Jansen, “Semantic Tyranny: How Edward L. Bernays Stole Walter Lippmann’s Mojo and Got Away With It and Why It Still Matters,” International Journal of Communication, 7: 1094, 1109 (2013). 5. Edward L. Bernays, Propaganda, 9–11, 112–13 (New York: Horace Liverlight, 1928) (quoting Henry Thomas Buckle on “the intellectual classes and the practical classes”). 6. Ibid., 126–27. 7. Ibid., 114, 158. 8. Olin Marvin Owen, The School Plot Unmasked; or, The Papal Conspiracy against American Institutions, 116 (Syracuse: A. W. Hall, 1893). One politician declared of Catholics that “their minds and hearts should be Americanized.” Connecticut Aroused! Great Demonstration at New Haven, Speech of Hon. Hiram Ketchum, 8 (n.p.: 1856). 9. Bernard Fresenborg, “Thirty Years in Hell”; or, “From Darkness to Light,” 211–12 (St. Louis: North-American Book House, 1904). 10. “A Divisive Factor in Our National Life,” New Age, 38: 543–44 (1930); “Encyclical,” New Age, 38: 201 (1930). For more on the use of public schools to “create a homog-

Notes to Chapter 17 / 389

11.

12.

13.

14. 15.

16.

17.

18.

19.

20.

enous nation” from “widely scattered peoples,” see “A Victory,” New Age, 41: 456 (1933). “A Divisive Factor in Our National Life,” New Age, 38: 543–44 (1930). This was an old theme: “Although Roman Catholics constitute only one fifth of the population, yet because of their solidarity and the power of the hierarchy over them, they can be manipulated very largely as one body against an unorganized majority, and can therefore exercise an influence all out of proportion to their numbers.” “A Papal Boycott,” Protestant Magazine, 5: 501, 503 (1913). Allen Hill Autrey, Warning Signals or Romanism an American Peril, 126 (Little Rock: Doctrinal Interpreter, 1911); The Ku Klux Klan Presents Its View of the Public Free School, 2 (n.p.: n.d. [early 1920s]). I. N. Kuhn, Danger Ahead: Stop! Look! Listen!, 371 (Columbus, KS: I. N. Kuhn, 1927). Such arguments drew on earlier progressive arguments. Walter Athearn wrote: “People who are to do collective thinking must have a body of common knowledge and common ideas, ideals and standards. The public school is the agency through which these common ideals and experiences are maintained. The homogeneity of our people depends primarily on upon the work of the public schools.” Walter Scott Athearn, Religious Education and American Democracy, 37 (Boston: Pilgrim Press, 1917). V. T. Thayer, Religion in Public Education, 235–36 (New York: Viking Press, 1947). J. Roland Pennock, Liberal Democracy: Its Merits and Prospects, 267, 291–93 (New York: Rinehart & Company, 1950). An anonymous reader sarcastically translated the title (on the title page of my copy): “Oh, how lucky we are.” For the controversial propaganda test, see Ward L. Thomas & Robert Fontenrose, “Education, Propaganda, and the Methodology Test,” 83, 84–87, IRS EO CPE Text, 1997. Reg. 45, Art. 517; Statement of William J. Lehrfeld, Committee on Ways and Means, Lobbying and Political Activities of Tax-Exempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 141–42 (Washington: U.S. Government Printing Office, 1987). Statement of William J. Lehrfeld, Committee on Ways and Means, Lobbying and Political Activities of Tax- Exempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 141–42 (Washington: U.S. Government Printing Office, 1987); Slee v. Commissioner, 42 F.2d 184, 185 (1930). Bureau of Internal Revenue, Reg. 9.101(6)-1(3) 1939 Supplement to the Code of Federal Regulations, Title 26-50, p. 1745 (Washington: U.S. Government Printing Office, 1940); “Application of Tax Laws to Tax Exempt Organizations,” Social Legislation Information Service, No. 67: 429, 437–38 (July 5, 1954). Although not identified as such, this last article was the testimony of the assistant commissioner to the Reese Committee on tax-exempt foundations. See ibid., 435. Sugarman added: “or to develop and publicize facts leading to a suggested solution of current social, economic, or other problems.” Ibid. For the 1938 regulation, see Ward L. Thomas & Robert Fontenrose, “Education, Propaganda, and the Methodology Test,” 83, 87, IRS EO CPE Text, 1997. IRS Press Release, 1948 CCH Income Tax Service, ¶6075; Statement of William J. Lehrfeld, Committee on Ways and Means, Lobbying and Political Activities of TaxExempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 100th Congress, 1st Session (Mar. 12

390 / Notes to Chapter 17

21. 22.

23.

24. 25.

& 13, 1987), Serial 100-15, at 143 (Washington: U.S. Government Printing Office, 1987); An Act to Protect the United States against Certain Un-American and Subversive Activities by Requiring Registration of Communist Organization . . . , Statutes at Large, 64: 987; “Application of Tax Laws to Tax Exempt Organizations,” Social Legislation Information Service, No. 67: 429, 440 (July 5, 1954). C.F.R. §1.501(c)(3)-1(d)(3)(i) (adopted 1959). Statement of William J. Lehrfeld, Committee on Ways and Means, Lobbying and Political Activities of Tax- Exempt Organizations: Hearings before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives,100th Congress, 1st Session (Mar. 12 & 13, 1987), Serial 100-15, at 140, 144 (Washington: U.S. Government Printing Office, 1987). Philip Hamburger, “Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal,” Notre Dame Law Review, 90: 1922, 1928–29, 1930–33, 1944, 1968, 1971 (2015). Francis Biddle, Dilemmas of Liberalism, 18 (New York: Roger N. Baldwin Civil Liberties Foundation, 1953). Peter L. Berger & Richard John Neuhaus, To Empower People: The Role of Mediating Structures in Public Policy, 28–29 (1977; Washington: American Enterprise Institute, 1981). CHAPTER EIGHTEEN

1.

Tillman Act, 1907, 34, Stat. 864 (Jan. 26, 1907) (barring campaign contributions from federally authorized corporations and corporate contributions in federal elections). 2. Labor Management Relations Act, 1947, §313, Stat. 61: 159, PL.-101, Ch. 120 (June 23, 1947); Truman’s Veto Message, Journal of the Senate, 362 (June 20, 1947). 3. Federal Election Campaign Act of 1971, Pub Law 92-225, 86 Stat. 3 (Feb. 7, 1972), 52 U.S.C. §30101 et seq. For the full definition of an “electioneering communication,” see 52 U.S.C. 30104(f)(3), which is elaborated by 11 CFR 100.29. 4. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). 5. “In the Matter of Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees,” 102 Book 1 F.C.C.2d 143, 146, 187 (FCC 85-459) (1986). 6. Communications Act of 1934, 47 U.S.C. §315. 7. The Supreme Court upheld the fairness doctrine in Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969). 8. Philip Hamburger, “IRB Licensing,” in Who’s Afraid of Academic Freedom?, 153, 175, 179–80 (New York: Columbia University Press, 2014). 9. Philip Hamburger, “Getting Permission,” Northwestern University Law Review, 101: 405, 445–48 (2007). 10. National Science Foundation, “Frequently Asked Questions and Vignettes: Interpreting the Common Rule for the Protection of Human Subjects for Behavioral and Social Science Research,” https://www.nsf.gov/bfa/dias/policy/hsfaqs.jsp (as of Dec. 13, 2016); Department of Health and Human Services, Institutional Review Board Guidebook, chapter 3, http://archive.hhs.gov/ohrp/irb/irb_chapter3.htm (as of Dec. 13, 2016); Philip Hamburger, “The New Censorship: Institutional Review Boards,” Supreme Court Review, 271, 295 (2004). 11. Debra L. Schultz, To Reclaim a Legacy of Diversity: Analyzing the ‘Political Correctness’ Debates in Higher Education, 7–8 (New York: National Council for Research on

Notes to Chapter 18 / 391

12.

13.

14. 15.

Women, 1993); Ruth Perry, “Historically Correct,” Women’s Review of Books, 9: 15 (Feb. 1992). Whether a religious society should embrace social pressure for progressive social ends was deeply troubling for theological liberals a century earlier. See Felix Adler, “Shall Ostracism be Used by Religious Societies in the Struggle against Social Iniquity?,” Ethical Addresses and Ethical Record, 12: 181 (Feb. 1905). Andrew Altman, “Liberalism and Campus Hate Speech,” in Campus Wars: Multiculturalism and the Politics of Difference, 122, 122–24, ed. John Arthur & Amy Shapiro (Boulder: Westview Press, 1995). Letter from Justice Department and Department of Education to University of Montana (May 9, 2013), http://www.justice.gov/sites/default/files/opa/legacy/2013/05 /09/um-ltr-findings.pdf; Shannon Najmabadi, “Resident Assistants Find Themselves on the Front Lines of Title IX Compliance,” Chronicle of Higher Education (Oct. 25, 2016), http://www.chronicle.com/article/Resident-Assistants-Find/238159. Of course, hints of the newer sort of suppression can be observed long before the twentieth century. For recognition of part of the problem, see Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), The Papers of James Madison, 11: 299, ed. Robert A. Rutland & Charles F. Hobson (Charlottesville: University Press of Virginia, 1977). CONCLUSION

a.

1.

2.

3. 4. 5. 6. 7.

For the Establishment Clause, see Philip Hamburger, Separation of Church and State, 479–81, 483–86 (Cambridge: Harvard University Press, 2002). For administrative agencies, see Philip Hamburger, “Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal,” Notre Dame Law Review, 90: 1919, 1938–48 (2015). Recognizing the underlying problem, even if not the danger of his solution, Walter Lippmann wrote: “The iconoclasts didn’t free us. They threw us into the water, and now we have to swim.” Walter Lippmann, Drift and Mastery: An Attempt to Diagnose the Current Unrest, 197 (New York: Mitchell Kennerley, 1914), quoted in John Dewey, The Public and Its Problems: An Essay in Political Inquiry, 14, ed. Melvin L. Rogers (University Park: Pennsylvania State University Press, 1984). Charles C. Marshall, Governor Smith’s American Catholicism, 3 (New York: Dodd, Mead & Company, 1928); George H. Williams, Waldo Beach, & H. Richard Niebuhr, “Issues between Catholics and Protestants at Midcentury,” Religion in Life, 23: 163, 198 (Spring 1954). Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983) (quotation marks omitted); Citizens United v. Federal Election Commission, 558 U.S. 310, 340 (2010). Samuel Eugene Stevens, Philosophy of the Great Unconscious, 111 (New York: Truth Seeker Company, 1908). H. W. Evans, The Rising Storm, 337 (Atlanta: Buckhead Publishing Co., 1930). “Shaping American Culture Toward Catholicism,” Church and State Newsletter, 1(2): 6 (July 10, 1948). John Rawls, Political Liberalism, expanded ed., 242, 447 (New York: Columbia University Press, 2005). Rawls also wrote that “by avoiding comprehensive doctrines we try to bypass religion and philosophy’s profoundest controversies so as to have some hope of uncovering a basis of a stable overlapping consensus.” Ibid., 152.

INDEX

administrative shaping of public opinion, 296–99 Aikin, Henry, 136 alternative avenues for speech, 16, 32–33, 34, 241–48, 324–26; structured like Russian dolls, 242 American Birth Control League, 95 American Civil Liberties Union, 67–68, 136, 141, 259 American Council of Learned Societies, 84 Americanism, 29, 73, 78, 80–81, 115, 121, 153, 161, 300 American Jewish Committee, 68 American Protective Association, 86, 372n.10 Archer, Glenn, 109n.a, 136 areligious, defined, 163n.a aristocrats, their shaping of public opinion, 45–46n.a Army-McCarthy hearings, 141 associations, 17, 27–78, 272–76 associators, 17, 269–72 Austin v. Michigan Chamber of Commerce, 197 Backus, Isaac, 56 Bacon, Leonard, 56 Baghdigian, Bagdasar, 117n.b Bank of the United States v. Deveaux, 271–73 Baptists, 41, 43, 206, 219, 341n.4, 370n.2 baseline or boundary of income tax. See under section 501(c)(3) Beach, Waldo, 150–55, 166, 265, 327 Bennett, John, 151–53, 166, 265, 293; his interpretation of the First Amendment, 367–68n.24

Berger, Peter, 306 Bernays, Edward, 297–99 Biddle, Francis, 67–68, 306 Bipartisan Campaign Reform Act of 2002, 308–9 Bishop, Abraham, 107 Bittker, Boris, 176, 183 Bixler, Julius, 149 Black, Hugo, 261 Blanshard, Paul, 82–83, 103, 128–30, 132– 33, 135, 145, 172, 350n.25, 358n.33 Blau, Joseph, 103 Board of Education v. Allen, 261 Brown v. Board of Education, 12, 112, 117– 20, 124, 141, 152 Buckley v. Valeo, 191 Bureau of Internal Revenue: discussed in terms of Internal Revenue Service, 3n.a. See also educational organizations; Internal Revenue Service Bushnell, Horace, 144 business organizations: liberal and progressive anxieties about, 23, 53, 66– 69, 79, 234, 270, 276–77, 284, 282–83, 308, 322, 328; speech of, 36, 46, 79, 114, 195–96; speech restrictions on, 4, 79, 192, 197, 229, 280, 282–83, 286– 87, 293, 308, 318–19; their diminished incentives for allying themselves with churches, 279–84, 287–88 Callaway, T. W., 127 Cammarano v. United States, 180 campus speech restrictions, 313–14 cascade of anti-Catholic demands, 85–87

394 / Index censorship, by private expression of opinion, 56, 80, 132, 259, 349n.20, 385n.5 Chaffee, Zechariah, 258 Channing, William Ellery, 27, 56–58, 153, 313, 332, 345n.25 charity, defined, 4 Chicago Tribune, 96, 387n.l churches: defined, 4, 339n.8; their traditional political role, 39–44 Citizens United v. Federal Election Commission, 191–92, 197, 226, 244, 309, 328 civility, 103, 147–50, 155, 157, 160–63, 165–66, 211 civil religion, establishment of, 210–11 Clark, William Lloyd, 76 Coe, George, 259 Colinvaux, Robert, 242 Committee for Constitutional Government, 112–13 communism and anticommunism, 12, 14, 32, 71, 84, 112, 124–25, 127, 129–30, 132–33, 135–42, 147, 166, 180, 258– 59, 295, 302, 304, 308, 321, 323 compelling-government-interest test, 15, 191–93, 216, 224–40, 266, 325, 327, 381n.1, 382n.4, 382n.6. See also interests, of government Conant, James, 104–6, 119–20 consensual character of speech restrictions, 151–52, 158, 164, 166, 171–73, 185, 187, 265, 323–24, 327 consensus, 95, 106, 145, 150–53, 155–58, 160–64, 231, 240, 265, 293, 302, 306, 308, 336–37. See also Rawls, John: on overlapping consensus conservatives: anticommunist, 139–40, 295; targeted, 112–14, 124, 142, 222, 360n.41 constitutional interpretation, approach adopted in this book, 168n.a corporations: anxieties about them and their speech, 23–24, 37, 53–54, 66, 69, 79, 81, 193, 234, 269–76, 282; enjoy same constitutional rights as other persons, 285–86; limited liability of, 386n.4; restrictions on their speech and petitioning, 18, 192, 197, 199, 244, 280, 308–9; speech and petitioning rights of, 47, 201, 227, 269–76, 282, 282n.b, 289

Cottrol, Robert, 204 Cowper, William, 43 Davidson, James, 112 deductibility, 4–5, 15–16, 31, 93, 96, 167, 176, 181, 183, 228–29, 249–55, 291n.c, 324–25; narrower ways of preventing misuse of, 230, 253; potential misuse of, cannot justify sweeping speech restrictions, 228–30, 250, 253–54 definitions: areligious, 163n.a; charity, 6; church, 6; exclusion, 21–22, 36; licensing, 214–15; oppression, 21– 22; school, 6; segregation, 21–22, 36; silencing, 36; subordination, 21–22; suppression, 21–22, 36, 169. See also under liberalism democracy: deliberative, 155, 157, 233; liberal redefinition of, 153–55, 164– 66, 368n.26; and nativism, 29, 60–64; oppression by, 30, 172, 306, 319, 329, 332–33, 337; philosophy of, 30, 143– 66, 164–66; and propaganda, 296–99; reconsideration of, 27–28, 30 Dewey, John, 13, 79, 94, 128, 130, 145– 47, 149, 153, 155–56, 165, 300, 322, 366n.5 Dewey, Orville, 57 distortions of constitutional doctrine, 17, 256–66, 326–27; by Supreme Court, 260–66, 277 diversity jurisdiction, 271–72 divisiveness, as code word, 262 Dorsen, Norman, 258–59 Dougherty, Dudley, 112 Douglas, William O., 262 Dreikurs, Rudolph, 154 Dutaillis, Charles Petit, 199 Dworkin, Ronald, 233 economic liberalism. See liberalism: economic educational organizations: “controversial” propaganda interpretation of, 302–5; interpretation of, in 1919 regulations, 93–95, 110, 179, 302–4, 336; “unsupported opinion” interpretation of, 304–5 Einstein, Albert, 130 Elderkin, George, 135–36 equality as a structural protection for rights, 287–92

Index / 395 equal time rule, 310 Evans, Hiram, Imperial Wizard, 27, 68, 87–89, 91, 109, 126, 128, 130–31, 134, 143, 156, 166, 172, 256, 317, 321–22, 332, 358–59n.34; his correspondence with Charles Marshall, 358–59n.34 Eve, George, 41 Everson, Thomas, 259 exclusion, defined, 21–22, 36 exclusiveness, 153–54 exemptions, for nonprofits from tax: as expenditures, 173–81; traditional understanding of, 174–76 Facts Forum, 112–13 fairness doctrine, 309–10 FCC v. League of Women Voters, 182 FEC v. Massachusetts Citizens for Life, 283n.a Federal Election Campaign Act of 1971, 308 Fellowship Forum, 82–83 First Amendment, 190–223; establishment, 208–13; establishment of civil religion, 204; free exercise, 204–8; individualistic conception of, 277–78; petitioning, 198–204; petitioning by women, 200n.a; petitions from groups, 199– 202; political speech, 191–95; speaker discrimination, 195–98, 274–76; speech, 190–98 First National Bank of Boston v. Bellotti, 197, 282–83n.a force of law, 171–89, 323–24; disguised, 171–72 Forsythe, Eli, 101 foundations, 138–40 fractions of persons and rights, 203–4, 279–94, 328–29 France, 2 Fritchman, Stephen, 137 Frothingham, Octavius Brooks, 163–64n.b Fuller, Edgar, 105 Fulton, Justin, 115 Gaffney, Edward, 98 Gannett, Ezra, 57 Garnett, Richard, 12, 44, 98, 262 George, Henry, 100 Graebner, Theodore, 81 Grant, M. R., 86 Grosjean v. American Press Co., 196 Guardians of Liberty, 78, 115

Hamilton, Alexander, 289 Hand, Learned, 179, 179n.b Harkins, Thomas, 135 Harsch, Joseph, 136 Health and Human Services, 311–12 Hill, Isaac, 54 Holyoake, George Jacob, 163n.a homogenization, 295–306, 329; administrative, 296–99; through public schools, 299–301; by section 501(c)(3), 301–6 Houck, Oliver, 95, 113 human-subjects research licensing, 310–12 Huntington, Daniel, 57 Hurlbut, Elisha, 64–65 incumbents, 113–14, 231, 235 influence, anxieties about, 73–97, 320 intent a poor measure of suppression, 21– 22, 72, 168–69, 268, 279, 327–28 interests, of government, 224–40; applied to professors, 239–40; in equalizing political speech, 232–36; financially in exemptions, 227–30; in protecting political process, 230–32; reconsideration of doctrine on, 225–27; in separating church and state, 236– 39. See also compelling-governmentinterest test Internal Revenue Code, precursors of, 93 Internal Revenue Service, 31, 34, 97, 113, 194, 202, 215–17, 219, 221–23, 241–42, 245–46, 254, 283, 287, 290, 292, 302–5, 326, 329; and Bureau of Internal Revenue, 3n.a; 2004 compliance study by, 31, 194. See also educational organizations Jackson, Robert, 261 Jefferson, Thomas, 50, 56, 60, 107–8, 207, 237, 335 Johnson, Alexander, 87 Johnson, F. Ernest, 79 Johnson, Lyndon Baines, 112–14, 124, 139–40, 321 Joint Committee on Taxation, 113, 176, 181, 228, 246, 324, 326 judges, anti-Catholic anxieties about, 86n.b Kallen, Horace, 149 Keppel, Frederick, 89–92, 138, 166, 207 Ketchum, Hiram, 100

396 / Index Kilgore, Carrie, 62–63 King, Martin Luther, Jr., 43 Kuhn, I. N., 101–2, 105, 146–47, 300 Kuhn, Thomas, 146–47 Ku Klux Klan, 2, 25, 27, 68, 74, 82–83, 87, 89, 91, 94, 100–101, 111, 116, 126, 128, 130, 134, 148, 161, 237, 258, 261, 300, 317–18 Legal Services v. Velazquez, 193 Lehrfeld, William, 222, 303–4 Lemon v. Kurtzman, 262 liberalism: antiorthodox slant, 59–60; cultural, 23–34; definitions of, 22–25, 68, 68n.c; development of, 48–70; economic, 23, 54, 66–68, 276–77; expansion of liberal anxieties, 314–15; generic, 23, 49–51; and intolerance, 257–58; mixed character of, 1–2, 8, 10–11, 28, 319; and nativism, 27–29, 60–64, 319; in nineteenth century, 37– 70; political, 24; prior scholarship on, 49; and progressivism, 66–68, 79, 88– 89, 234, 267, 279, 295–99, 300–301; reconsideration of, 27–28; theological, 23, 51–54, 319–20; theological liberalism’s appeal to nonreligious Americans, 23 Liberals (i.e., the theological liberals associated with the Liberal Leagues), 62–63, 108, 144, 163n.b, 177–78, 257 licensing, 214–23; defined, 214–15; and loss of procedural rights, 220–23; of religion, 218–20; of speech, 215–18; and wholesale suppression, 223 Lippmann, Walter, 149–50, 155, 297 Locke, John, 148, 159, 205 Lockhart, Andy, 75 loyalty oaths, California, 136–38, 264 Lukianoff, Greg, 9–10 Madison, James, 50; and Bill of Rights, 41, 225, 275, 289; and theological and economic liberalism, 53, 56, 66, 69, 234, 276; and veto of bill incorporating Alexandria Church, 343n.13 majority fears of minorities and suppression, 315, 331–33 Marshall, Charles, 110–11, 128, 148, 265, 354n.61, 358–59n.34; his correspondence with Hiram Evans and with masonic editors, 358–59n.34

Marshall, John, 271 McCarran, Pat, 140 McCarthy, Joseph, and McCarthyism, 12, 32, 35, 124, 135, 141–42, 189, 247, 302, 321 McClure, Worth, 105 McConnell v. Federal Election Commission, 192 McCormack, John, 112 McGreevy, John, 27, 99 McLoughlin, Emmett, 109n.a Meiklejohn, Alexander, 165 Menace, 76, 83, 178 Mencken, H. L., 127 Metzenbaum, Howard, 113 Mill, John Stuart, 26–27, 58, 143; American followers of, 345n.23 Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 196 Moehlman, Conrad, 84, 103, 117, 153 Morrison, Henry Clay, 75, 80 Morse, Samuel, 61 Murphy, Ann, 124 Natelson, Robert, 230 Nation, 129 National Economy League, 95–96 National Education Association, 119, 126, 361nn.52–53 National Liberal League. See Liberals Nations, Gilbert, 128, 131, 352n.33, 358n.34 Nations, Karl, 358n.34 nativism, reconsideration of, 29; and reshaping of liberalism, 27–29, 60–64, 319 Neuhaus, John, 306 New Age, 78, 81, 83, 103, 106, 109n.a, 116–17, 117n.b, 127, 135–36, 162, 180, 258, 299–300 New Republic, 74 newspapers, 188 new-style suppression, 268, 307, 315–16 Nichols, James, 104, 146, 154 Oberholtzer, Kenneth, 105 O’Daniel, Patrick, 112–13 opinion. See public opinion orthodox. See section 501(c)(3): discriminatory against relatively poor and orthodox orthodoxy, as code word, 261–62

Index / 397 overbreadth. See vagueness and overbreadth Oxnam, Garfield, 127 Palmer, Elihu, 55 Patriotic Order Sons of America, 161 Pennock, J. Roland, 301 Philadelphia Lutheran, 76 Pickle, James, 113–14 Pierce v. Society of Sisters, 86, 99, 101, 103–4, 109, 111; subsequent regrets about, 101, 355n.10 political action committees. See alternative avenues for speech political organizations, their near monopoly (among associations) of full freedom of speech, 292–93 political theory, 13, 30, 45, 71–72, 143– 66, 233, 317–18, 321–23; and civility and reason, 147–50, 160–63; and consensus, 150–53, 160–63; and intolerance of the intolerant, 159–60; and silencing theo-political opponents, 163–64; and theological liberalism, 143–44. See also Dewey, John; Rawls, John poor. See section 501(c)(3): discriminatory against relatively poor and orthodox precedent, unsettled by history of prejudice, 6–7, 181 prejudices: and animosity or other bad intent, 21–22, 72, 168–69, 268, 279, 327–28; and constitutional analysis, 168–69, 256–66; and corporations, 276–78; expressed as ideals, 92, 268, 318; as expression of anxieties, 21–22; genteel version of, 128–30; religious and racial, 118–20; role in constitutional analysis, 168; and separation of church and state, 236–38; and tax expenditure theory, 177–81 Presbyterian, 81 press, Catholic, 80–82 professors, 239–40 progressivism, 10, 66–68, 79, 88–89, 234, 277, 279, 295–300, 316 propaganda: anxieties about, 73–97, 320; “controversial” propaganda interpretation, 302–4; definitions, 82, 350n.25 Protestant, 81 Protestants and Other Americans United for Separation of Church and State, 77,

84, 104, 109n.a, 127, 136, 178, 332, 347n.5, 349n.20 public opinion, independence from government, 19, 37, 39, 39–47, 58, 68, 122, 202, 235, 277, 291n.d, 295–96, 318–19, 322, 329–30, 336 public schools: homogenization through, 161, 299–301; nativist ideal of integration of, 115–18; places where children learn not what to think but how to think, 24, 94, 300, 314; racial desegregation of, 118–21; religious segregation from, 98–106; and subversion, 126–27, 131, 136 Putnam, James, 62 racism, nativist, 299n.a. See also segregation: racial Rafton, Harold, 127, 131–32, 148–49, 154 Rauch, Jonathan, 9 Rawls, John, 13, 26–27, 30, 147–66, 232–33, 265, 317, 322, 337; on comprehensive doctrines, 156–60, 164, 391n.7; on overlapping consensus, 156, 162, 231, 336–37; on public reason, 154–59, 160, 162–64, 336, 368n.32. See also civility; consensus reason or rationality, 18, 27, 63, 106, 147– 50, 154–64, 209, 334, 336 Reed, David, 95–97, 253, 320, 354n.61 Regan v. Taxation without Representation, 6–7, 168–69, 180, 183, 186, 222, 243, 263– 65, 327, 384n.4 Richards, William, 43 Russell, Bertrand, 130 Rutledge, George, 80, 86n.b, 110, 350n.21 Schizer, David, 371n.8 school, defined, 6. See also public schools Scottish Rite, Southern Jurisdiction, 77–78, 84, 100–101, 103, 115–18, 126–27, 135; its geographic jurisdiction, 77n.a Scottish Rite News Bulletin, 83, 118 section 103, predecessor of section 501(c) (3), 12. See also section 501(c)(3) section 170, 30–32, 95–96, 169; and licensing, 215, 219, 254–55, 326; predecessors of, 3n.a; statute, 4–5; subsidizing effect of, 176, 180, 183, 249–53, 324–25; unconstitutionality of its speech restrictions, 16, 167, 168n.a, 183, 249–55, 325–26

398 / Index section 501(a), 3 section 501(c)(3): as baseline or boundary of income tax, 174–76, 178, 181, 228, 233, 326; churches need not apply for exemption, 34n.a; discriminatory against relatively poor and orthodox, 16, 33–34, 238, 246–47, 281, 290– 92, 305–6, 329; economic pressures for compliance not minimal, 30–31; enactment of its 1934 restriction on propaganda to influence legislation, 92–97; enactment of its 1954 restriction on campaign speech, 111– 14; enactment of its 1987 amendment expanding restriction on campaign speech, 113–14; enforcement of, 30–32; seriousness of its suppression, 30–36; statute, 3–4 section 501(c)(4). See alternative avenues for speech section 501(h), 217n.a section 527. See alternative avenues for speech section 4955, 187 segregation, 98–123; defined, 36; racial, 12, 99, 114–23, 132, 141, 151, 321; along religious lines, 98, 99–106, 320–21; and specialization, 122–23; of speech, 98, 106–11; varieties of, 98–99, 121–22 self-restraint. See consensual character of speech restrictions separation of church and state, 41, 60, 63, 88, 98, 107–9, 122, 149, 151–52, 162, 163n.b, 177–79, 236–39, 277, 292, 321, 335 Seventh-Day Adventists, 133–34, 264 Sherbert v. Verner, 262–65 silencing, defined, 36 slavery, 42–43, 50, 65, 202–3, 285 Slee v. Commissioner, 95, 179, 303 Smith, Alfred, 76, 86, 98–99, 107, 109–11, 129, 148, 180, 320 Smith, Gerald, 85 Smith, Melancton, 69 specialization: constitutional rights, 17, 279–94, 309, 328; in role of churches, 107, 148, 210–11; and segregation, 122– 23; of society accelerated by law, 294; sociological, 294, 330–31; and vision of Catholic Church, 110 speech: contemporary restrictions on, 18,

307–15; freedom rather than equality of, 233–34; freedom to speak in one’s own voice, 243–44; as oppressive, 8–11, 331; variety of threats to, both orthodox and liberal, 2, 9, 28. See also First Amendment Speiser v. Randall, 137, 222, 264 Steven, Samuel, 65–66 Strauss, Leo, 147 subversion, 12, 124–42; anticommunist fears of, 135–40; antiecclesiastical fears of, 125–34; and congressional committees, 138–39; and suppression of speech, 130–33 Sugarman, Norman, 303–4 Sunstein, Cass, 233 suppression, defined, 21–22, 36, 169. See also wholesale suppression Surrey, Stanley, 176, 180–81, 264, 324, 326 Swift, Zephaniah, 273 Taft-Hartley Act, 308–9 tax expenditure theory, 15, 17, 171, 173– 81, 188–89, 227–28, 252, 264, 324, 326, 370n.2 Tennant, William, 273n.a Thayer, V. T., 301 Thomas, David, 55 Tocqueville, Alexis de, 8, 45–46, 57–58, 124, 165, 235, 277, 283, 291n.d, 295, 318–19, 322, 330 unconstitutional conditions, 181–85; combination of subsidy and direct constraint, 185–89 universities, 138–40 vagueness and overbreadth, 217–18 voluntariness. See consensual character of speech restrictions wealthy, expanded role of, in American politics, 293 Welch, Joseph, 141 West, Samuel, 40 West Virginia State Board of Education v. Barnette, 251 Whitney, Thomas, 62, 85–86 Wilson, Woodrow, 296–97 wholesale suppression, 223, 254–55, 313– 14, 326

Index / 399 Williams, George Huntston, 129, 146, 153 Wilson, Clarence, 145–46 Winter, Paul, 74, 82 Wisconsin v. Yoder, 263

Woodworth, Lawrence, 113 Wormser, René, 138 Wortman, Tunis, 107 Zelinksky, Edward, 176