Political labels often change their meanings with time.
For example, in the late 1800s, the Democratic Party stood for limited government and states’ rights, drawing its strength from the South and portions of the Midwest and West. The Republican Party stood for big business and federal power, drawing its strength from New England, the Great Lakes, and the West Coast.
Electoral maps from the late 1800s are almost the reverse of today. Presently, the Republican Party generally stands for decentralized government and limited federal power, usually carrying the South and the Great Plains, while Democrats carry New England and the West Coast.
Likewise, the meaning of the term “liberal” has changed. Around the nation’s founding and years thereafter, liberalism was “a political and social philosophy that promotes individual rights, civil liberties, democracy, and free enterprise,” while conservatives defended the established order.
That’s changed. Genuine liberals still exist, but many who call themselves liberal are hardline leftists who want to suppress all speech with which they disagree. Today, political liberals want the federal government to take a stronger role in national affairs, regulating the economy, public health, and many other areas of life. During the COVID-19 pandemic, liberals generally supported compulsory masking and vaccination, as well as closing businesses and churches, while conservatives defended those who believed such compulsion violated their civil liberties.
The same is true with religious speech. Liberals give lip service to the free exercise of religion, but when peoples’ heads are on the chopping block for preaching their convictions, liberals are generally nowhere to be found. But conservative legal organizations like the Foundation for Moral Law, where I serve as senior counsel, Alliance Defending Freedom, Liberty Counsel, and others, are dedicated to the defense of religious liberty.
Religious liberty has been threatened in Alabama. On Halloween 2022, street evangelist Rickey Caster and his sister were on the streets of Selma telling people about Jesus Christ. A police officer ordered Caster to either produce a permit or stop preaching. Believing his speech was protected by the First Amendment, Caster refused to back down. He respectfully addressed the officers as “sir,” but was firm about his right and duty to preach God’s Word. Nevertheless, he was arrested, and the Foundation for Moral Law came to his defense.
The case seems reminiscent of the 1950s and 60s. The city used some of the same statutes and ordinances used against civil rights demonstrators during that era, while we cited some of the same court cases that were used to stop those prosecutions.
But this time the issue was not racial. Caster, the arresting officers, the prosecutor, the judge, and the mayor were all black. But the issues were similar: a man spoke out for what he believed, the city tried to silence him, and he asserted the protection of the United States Constitution.
In Caster’s defense, we cited Shuttlesworth v. City of Birmingham (1963), in which Rev. Shuttlesworth and others were arrested for demonstrating without a permit. The U.S. Supreme Court ruled that the requirement of a permit was “prior restraint,” a highly disfavored legal concept referring to the requirement of advance permission to exercise a First Amendment right. The Court held that Shuttlesworth and his supporters had a right to demonstrate without a permit and that when the city refused to issue a permit, they had a right to conduct their demonstration without a permit.
The Selma prosecutor and judge agreed to dismiss their case against Caster. We’re grateful to God for that victory, but many others still find their civil liberties threatened.
In Brandon, Miss., in May 2021, Gabriel Olivier was preaching a biblical message, as is his common practice, this time outside the city amphitheater. The city’s chief of police handed him a copy of an ordinance requiring those engaged in demonstrations to stay within a designated protest area. Olivier at first complied but then returned to his former location after seeing that the protest area was too isolated for attendees to hear his message. He was charged with violating the ordinance and has appealed to the U.S. Supreme Court, claiming the ordinance violates the First and Fourteenth Amendments.
Other issues complicate the appeal, such as whether a civil claim under the Civil Rights Act Section 1983 can be maintained if success on the claim would necessarily imply the invalidity of a prior conviction. But the underlying issue remains: May a governmental entity banish speakers to a “free speech zone” simply because their speech might inconvenience others or make them uncomfortable?
Time, place and manner restrictions may sometimes be necessary, such as prohibiting demonstrations on main streets during rush hour traffic. But is it necessary to prohibit a single speaker, or relegate that speaker to a remote location where most people will be unable to hear his message?
Not only does this violate the preacher’s right to speak, it also violates the listener’s right to hear. This right is guaranteed not only by the free exercise and free speech clauses of the First Amendment but by the Mississippi Religious Freedom Restoration Act, which protects the free exercise of religion unless the government has a compelling interest that cannot be achieved by less restrictive means. Even if Mississippi’s interest in preventing traffic disruption is compelling, are there no less restrictive means by which this could be achieved?
The Foundation hopes the Court will accept this case and issue a landmark ruling protecting religious liberty. I commend First Liberty for taking this case.
Meanwhile, where are traditional civil liberties groups when we need them? Some of them have backed off from their earlier ardent advocacy of free speech and now hold that the First Amendment must yield to more important “rights,” like the right not to be offended or made uncomfortable.
Sometimes speech should make people uncomfortable, such as telling people they are going to hell if they do not repent. All of us sometimes have to hear messages we don’t like. But that’s the price of living in a free society, and it’s infinitely better than the alternative.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga (woodlandpca.edu). He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News.
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