‘The process is the punishment,’ ADF attorney Sean Nelson said.
News analysis
Despite the protections for speech and faith enshrined in constitutions and a long history of respecting civil liberties, some people in Western nations are now learning to fear prosecution for voicing their beliefs.
The long-honored tradition of “freedom of conscience” has protected individuals in the West from state coercion regarding their beliefs and preserved their right to speak and act in accordance with those beliefs.
More recently, however, organizations like the United Nations (U.N.) have called for an all-encompassing global effort to “tackle” hate speech, which it defines as “a denial of the values of tolerance, inclusion, diversity and the very essence of human rights norms and principles.”
Hate speech, the U.N. states, “lays the ground for conflict, tension and human rights violations, including atrocity crimes.” It calls for a “holistic approach” from governments, private companies, media, faith leaders, and teachers in the fight against it.
The campaign has manifested itself in cases like that of Jack Phillips, a Christian maker of decorative cakes, who has been repeatedly prosecuted by the state of Colorado as a “hater” for refusing to create cakes in support of sexual topics with which he disagrees. While the Supreme Court ultimately ruled in favor of Mr. Phillips in 2018, he was charged by Colorado officials again in 2023 for refusing to make a cake celebrating a gender transition.
In Europe, the anti-hate campaign included the current case of Paivi Rasanen, a Lutheran member of parliament in Finland, who was investigated and charged under a war crimes statute for quoting Bible verses when her church elected to sponsor a “pride” parade. While Ms. Rasanen had won two prior court decisions that found her speech protected by law, Finnish prosecutors repeatedly appealed the verdict, which will soon be reviewed by Finland’s supreme court.
Those who run afoul of hate speech laws and codes are increasingly facing years of court trials and hundreds of thousands of dollars in legal defense fees, even if they ultimately win their cases.
“The process is the punishment,” Sean Nelson, who is representing Ms. Rasanen, told The Epoch Times.
“Even if Paivi wins at [Finland’s] Supreme Court, and we’re very hopeful she will, that’s still years of investigation, years of court dates, years of having to defend yourself,” he said. “Most people would not want to go through that.”
Many prosecutors have been relentless in pursuing their targets, he said, in order to “make the process so difficult, so punishing, that it discourages other people from saying things that they should be allowed to say and to be able to have important discussions on political issues and on social issues.”
Winning Track Record
Mr. Nelson is one of 4,500 attorneys worldwide who are part of the Alliance Defending Freedom (ADF), an organization now in its 30th year, which works, often pro bono, to defend people who see their civil rights being infringed by the state. The ADF defended Mr. Phillips and Ms. Rasanen in their respective cases.
The ADF defines itself as “one of the leading Christian law firms committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life,” and has represented pastors, students, small business owners, politicians, and others who face prosecution because of their beliefs.
The ADF believes it has the law on its side, and its track record–an 80 percent success rate in cases it has taken on, including 15 wins before the Supreme Court–bolsters that belief. However, despite its successes, the group is facing a rising tide of new laws and prosecutions at a time when public support for civil rights appears to be waning, particularly among the young.
A 2022 poll by the Pew Foundation found that 62 percent of American teens believed that “people being able to feel welcomed and safe” was more important than “people being able to speak their minds freely online.” Among adults, 50 percent prioritized “welcoming and safe,” versus 47 percent who prioritized free speech.
“We have a rich tradition in the United States of protecting free speech and religious freedom as fundamental rights, and parental rights are also included in that,” Kristen Waggoner, CEO of the ADF, told The Epoch Times. “There’s no question, though, that those rights are under assault in the United States right now, and the United States is the last country in the Western world that is protecting free speech and resisting these types of laws that we’re seeing happen around the world.”
Europe, in particular, has seen a proliferation of so-called “hate speech” laws in recent years. In January, the European Parliament issued a press release titled “Time to criminalize hate speech and hate crime under EU law,” which stated that “freedom of expression should not be used as a shield for hate speech and hate crime, online or offline.”
In 2021, Scotland passed the Hate Crime and Public Order Act, which criminalized “stirring up hatred” over peoples’ disability, race, religion, sexual orientation, and transgender identity.
This sparked headlines when “Harry Potter” author J.K. Rowling posted on her website: “It is impossible to accurately describe or tackle the reality of violence and sexual violence committed against women and girls, or address the current assault on women’s and girls’ rights, unless we are allowed to call a man a man.
“Freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal.”
Although her comments on gender appeared to violate “hate” laws, police in Scotland declined to charge her. Others, including Sebastian Vaughan-Spruce, who was charged in England in May for silently praying in front of an abortion clinic, were not so lucky or as famous.
Legal Protections Don’t Guarantee Freedom
“The censorship trends that you see in Europe over the last few decades are very troubling, and Paivi’s case is an extraordinary example of how far these hate speech laws, which are inherently vague and subjective, how far they can go,” Mr. Nelson said.
The United States has perhaps the most forceful speech protections, established in the Bill of Rights, which explicitly prohibit the government from attempting to regulate speech, religion, or the freedom of the press. However, legal experts say the letter of the law won’t protect Americans on its own.
“What’s especially important for Americans to realize is that in all of these Western countries, they also have legislative protections that ensure their rights of religious freedom and free speech,” she said. “But activists, both who are serving on the bench but also in the public square, have essentially rendered those guarantees worthless.”
Two major cases before the Supreme Court are considering the legality of America’s alternative to hate speech laws, where government officials pressure private companies to censor on their behalf.
The first case, National Rifle Association v. Vullo, was decided unanimously on May 30 against the state of New York, whose regulatory officials had attempted to pressure insurance companies into refusing service to the NRA over its support for Second Amendment rights.
In an opinion written by liberal Justice Sonia Sotomayor, the court stated that “government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”
The second case, which is still pending, is Murthy v. Missouri. This case concerns allegations by, among others, the attorneys general of Missouri and Louisiana that government officials in the Biden administration pressured social media companies to suppress or remove posts on issues such as the COVID-19 pandemic and potential evidence of corruption involving President Biden’s family members.
These cases concern “censorship by proxy,” or the U.S. government using banks, insurers, and tech companies to silence speech in ways the government is legally prohibited from doing.
“The NRA v Vullo ruling is a welcome stepping stone on the path toward reining in government abuse of concentrated private power in the financial markets,” Jeremy Tedesco, senior attorney at ADF, told The Epoch Times. “Hopefully, the Court will follow a similar approach in the forthcoming Murthy decision and curtail the government’s ability to censor Americans through tech and social media platforms as well.”
Rights of Parents
Parental rights are another area where ADF has been active. These cases concern fundamental questions about the extent of the state’s authority over families and often involve situations where school officials seek to exclude or overrule parents when children express a desire to change their gender.
“I think the family is under assault today, and the state, particularly the progressive left, has come to the conclusion that they have the right essentially to treat the children as their own,” Ms. Waggoner said.
A landmark case on this issue was decided by the Supreme Court a century ago in the 1925 case of Pierce v. Society of Sisters. The case was brought in response to a newly enacted Oregon law that required all children in the state to attend public schools, with daily fines for parents who either home-schooled their children or sent them to private schools.
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only,” the court majority opinion stated in rejecting the Oregon law. “The child is not the mere creature of the State.”
This issue became prominent when the state of Florida passed a law in 2022 stating that teachers should not discuss sexual topics with school children in kindergarten through third grade.
Critics of the bill deemed it the “don’t say gay” bill and it was condemned by corporations including The Walt Disney Company, which pledged to use its influence to fight against the law.
Looking ahead, Ms. Waggoner says she believes America has reached a “civilizational moment” that will determine the future of our civil liberties, and that Americans who want to preserve their rights must start by speaking out, despite the risks of retribution.
“I think that we have been through some tough years, but I think those years have opened up the eyes of America to realize what they’ve had and what needs to happen to ensure that they continue to have those freedoms,” she said.
“We have been cowed into silence, and it’s shameful for the American public to remain silent as these things are happening in our society and in our law,” she continued. “It is upon us as Americans to stand up and insist that our government observe the Constitution and the rights that are in that Constitution. It doesn’t act on its own; it acts because people insist on it,” she concluded.