Fair Game

Some have been quick to dismiss the blatant attempt at political intimidation by Houston’s mayor this week against a small group of pastors who dared to exercise their first amendment free speech rights in her city. Complaining that there’s been an overreaction to the mayor using the force of government to subpoena “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession,” her defenders dismiss the action as “isolated.” Our friend Matt Bowman over at Alliance Defending Freedom makes the legal case why this is indeed a very big deal, not just for pastors and religious liberty, but for free speech in general:

In Houston the pastors are not suing, being sued, helping a criminal investigation, or violating any law. They are being subpoenaed solely because they engaged in free speech and petitioning of the government, and they are being targeted by the government who disagrees with them. 

Rigorous First Amendment protection is needed against government discovery requests to non-parties. Otherwise a citizen’s mere exercise of First Amendment protected activity (like petitioning its government to vote on a controversial law) could subject the citizen to broad document and deposition subpoenas that would dissuade her from speaking in the first place. If court rules are interpreted to allow those burdens—especially if the citizens have publicly opposed the government that is subpoenaing them—it would likely suppress citizen participation in representative government.  [Emphasis added]

Read that carefully. These pastors are not party to any legal action, they are being investigated simply for speaking out on an issue they care about, and on which they disagree with the government.

As Matt implies, this should frighten anyone who dares to dissent against any government action. A nation where the government can subpoena communications of someone not party to a legal case simply because they disagree with that government is not free. Allowing this precedent to remain would have a chilling effect on political speech in general and religious speech in particular.

But then again, isn’t that really the goal here? There is absolutely no reason for these subpoenas other than intimidation.  And while the Houston pastors have made it clear that they will not be bullied, time will tell whether other ministers will use this as another excuse to avoid speaking out about moral issues that just happen to be discussed in the political realm.

UPDATE: Apparently, city officials have re-subpoenaed pastors but simply removed “sermons” from their demands.