Last Friday was a banner day for religious favoritism in the Trump administration.

In Nashville, Secretary of State Mike Pompeo delivered a “speech” that was — for all intents and purposes — a Christian sermon. Addressing an association of Christian counselors, Secretary Pompeo discussed how to be a good Christian leader, quoting scripture and urging audience members to conduct themselves in accordance with his interpretation of biblical tenets. He also commandeered State Department resources to advertise his sermon in advance, broadcast it live, and disseminate a video of it afterward using the State Department’s official social media channels and website.

As we explained in a letter sent today to the State Department’s Inspector General, this is not an appropriate or constitutional use of government resources. The Establishment Clause of the First Amendment prohibits government officials from using their office to proselytize or promote religious favoritism. All anyone needed to do to confirm that the State Department crossed this constitutional line was visit the department’s website over the weekend, which prominently featured Secretary Pompeo’s sermon, “Being a Christian Leader.”

Thus, we’ve demanded that the Inspector General launch an investigation to identify all misappropriations of State Department resources in connection with Friday’s speech, including the misuse of government employees’ time and the department’s social media accounts, website, and other technical resources. We also filed a Freedom of Information Act (FOIA) request with the State Department, seeking all documents relating to this matter.

While Secretary Pompeo was sermonizing in Tennessee, another member of Trump’s cabinet, Attorney General William Barr, was delivering his own problematic speech at University of Notre Dame Law School in South Bend, Indiana. 

From the start, the Trump administration has made clear that it favors Christians, or at least those Christians who fall in line with its anti-Muslim, anti-immigration, anti-abortion, anti-LGBTQ political agenda. Trump officials have twisted religious-liberty principles beyond recognition in an unrepentant and unyielding effort to protect and extend religious privilege to these select few Christians.

But Barr’s address Friday took things even further, incorrectly pushing the view that free government is “only suitable and sustainable for a religious people,” and suggesting that those who don’t subscribe to “Christian morality” are “foes” of democracy.  In the process, he railed at length against non-theists — or “secularists” as he calls them — accusing them of being immoral and plotting the “organized destruction” of religion.  According to him, without religion, humans are “enslaved” by “the unbridled pursuit of personal appetites at the expense of the common good” and “the possibility of any healthy community life crumbles.”

For an administration that claims to lead the fight against persecution based on religious belief, Trump officials are certainly comfortable denigrating and demonizing huge numbers of people based solely on *checks notes* what they believe or don’t.

In Barr’s view, which is shared by many Trump administration officials, the United States was founded as a Christian nation and must return to its purported roots. He’s wrong. It’s true that most people were Christian at the founding of our country and that Christianity enjoys a majority-faith status even today. But the Constitution establishes a secular government because the framers were wise enough to recognize that faith (or lack thereof) should not determine an individual’s political standing within our society and that religious freedom thrives best when the government remains neutral and avoids religious favoritism. If only the Trump administration would heed their good judgment.

Heather L. Weaver, Senior Staff Attorney, ACLU

Fifty years after the enactment of the Fair Housing Act (FHA), housing discrimination remains a national disgrace in the United States. Across the country, a growing tide of housing providers, perhaps emboldened by Trump’s anti-“other” rhetoric, discriminate against the very communities the FHA was designed to protect. In 2017 alone, there were nearly 29,000 reported complaints of housing discrimination across the country. Despite growing diversity in population, residential segregation persists at alarming rates hurting local schools, property values, and much more. Just this year, Black homeownership rates dropped to a record low of 40.6% which is the lowest level recorded by the Census Bureau since 1950.

Despite this ongoing crisis, the Trump Administration proposed a new rule that will dismantle critical housing protections for the most vulnerable and marginalized communities.

In one of this administration’s most outrageous attacks on civil rights yet, proposed rule will make a mockery of one of the FHA’s most critical enforcement tools: the Disparate Impact Rule. The Rule allows potential victims of housing discrimination to challenge unjustified policies or practices that disproportionately harm them. Courts have recognized disparate impact liability under the FHA for decades, culminating in the Supreme Court’s 2015 decision affirming disparate impact liability in Texas Department of Housing & Community Affairs v. Inclusive Communities Project.  There, the Court explained the significance of disparate impact liability: “[H]ousing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification . . . reside at the heartland of disparate-impact liability.” Under the Obama administration, the Department of Housing and Urban Development (HUD) acknowledged this principle by formally codifying the Disparate Impact Rule in 2013, and consistently affirming the existing Disparate Impact Rule through its fair housing enforcement and guidance as recently as 2016.

But this new proposed rule will weaken existing housing protections by imposing a significantly higher burden on victims of housing discrimination to prove their claims, making it nearly impossible to prevail. This change would make it harder to challenge forms of algorithmic discrimination — such as unjust tenant-screening tools or discriminatory marketing schemes — by providing special defenses for business practices that rely on algorithms or statistics, undoing decades of progress in advancing fair housing opportunities for all.

Why does Trump want to undermine this rule? Because it works. Disparate impact liability is a tool like none other in the law with numerous examples of how it has helped dismantle the many systemic barriers to fair housing. The Disparate Impact Rule has been critical in challenging covert or disguised forms of housing discrimination that otherwise escape easy classification. Advocates have invoked the Disparate Impact Rule in challenging discriminatory zoning regulations, predatory mortgage lending practices that charge excessive rates to people of color or people with disabilities, overly restrictive occupancy requirements that shut out families with children, and policies that threaten housing for survivors of gender-based violence and women of color.  

Housing discrimination and segregation remain serious challenges for many people of color, particularly as property owners employ discriminatory screening policies. Just this year, the ACLU settled a lawsuit against a Virginia housing complex for its policy of denying any person with a felony conviction or certain misdemeanor offenses—no matter how long ago it happened or how serious the offense. The ACLU is also suing the City of Faribault, Minnesota, for its similar “crime-free” policy, which — given the disproportionate rates at which Blacks and Latinx people are charged with and convicted of crimes — unfairly hurts the most vulnerable among us. As HUD has recognized, excluding people with criminal records may constitute race discrimination in violation of the Fair Housing Act, thanks to disparate impact liability.      

HUD’s proposed rule also threatens the safety and security of domestic violence survivors — the vast majority of whom are women. Domestic violence is a primary cause of homelessness for women and families, as survivors regularly report lacking housing options as a major barrier to escaping abuse. Even if they escape the abuse, survivors face discrimination in housing as a result. Congress has acknowledged that “women and families across the country are being discriminated against, denied access to, and even evicted from public and subsidized housing because of their status as victims of domestic violence.”    

HUD itself has recognized that penalizing survivors for the abuse they endured can amount to sex-based discrimination, due to the disproportionate impact of domestic violence on women. In 2001, HUD issued a formal finding that a landlord’s policy to evict an entire household based on criminal activity at the home violated the Fair Housing Act’s protections against sex-based discrimination. The ACLU has continued to fight on behalf of survivors in need of housing by challenging similar discriminatory policies and nuisance or crime-free ordinances through the Disparate Impact Rule.  

As required by the Fair Housing Act, HUD has an obligation to affirmatively further fair housing and to address the alarming rates of segregation throughout the country. But the proposed rule will erect nearly insurmountable barriers to fulfilling the Fair Housing Act’s goals, while harming those who already struggle to obtain safe and stable housing.

Safe and stable housing is key to the well-being of individuals and families across the country. That’s why the ACLU joined a national coalition to #DefendCivilRights by urging HUD to rescind its proposed rule. The ACLU urges all to submit comments to HUD in opposition of this harmful and cruel attack by October 18th.

Linda Morris, Skadden Fellow, ACLU &
Alejandro Agustin Ortiz, Senior Staff Attorney, ACLU

Congress on Wednesday will examine a little-known law that has made the internet the space for self-expression and connection that it is today. The law, Section 230 of the Communications Decency Act (CDA 230), is one of the most speech protective laws Congress has ever enacted and it is now under threat.

The internet today provides us an indispensable platform to communicate freely with others who might otherwise be beyond reach. One person with an idea or a desire to create change can reach millions. April Reign coined the hashtag #OscarsSoWhite in 2015 and spawned an online movement drawing attention to the lack of representation of people of color in the nominated films.

https://twitter.com/ReignOfApril/statuses/555725291512168448

Like Reign, people around the world are leveraging the internet to fight back against anything from systemic racism to the tactics of oppressive regimes. And the benefits can be personal too — new parents needing advice on a stroller can turn to online parent message boards, home gardeners seeking lawn care tips can turn to DIY gardening blogs, and more.

This is possible because so many online forums enable speakers to communicate freely on their platforms. Wikipedia provides a free online encyclopedia in scores of languages, thanks to volunteers around the world. Yelp lets us give recommendations on anything from restaurants to nail salons. Consumer watchdog sites encourage the public to submit reports of corporate malfeasance. Environmental activists at sites like Frack Check WV ask citizens to submit horror stories about fracking in their communities. The Bed Bug Registry asks users to report bed bug infestations. And then, of course, there are Facebook and Twitter.

CDA 230 makes communication on these platforms possible by assuring online platforms that they generally won’t be liable for user-generated content. Yelp can’t be held legally responsible every time one of its users posts a potentially false negative review. The Bed Bug Registry doesn’t have to visit every hotel with a magnifying glass to confirm the public reports. And Facebook can offer a forum for billions of users to share their thoughts, pictures, memes, and videos freely without having to approve every post before it goes up.  

If it weren’t for CDA 230, no website owner would permit public posts knowing that the site could be investigated, shut down, sued, or charged with a felony over one user’s speech. Avoiding legal risk would require even the smallest blog to hire an army of lawyers to assess in real-time all content created and uploaded by users. It’s unaffordable. Instead, sites would avoid legal liability by simply refusing to host user-generated content at all. 

Of course, users make mistakes. We get facts wrong. We can be terrible to one another in ways that break the law, offend, or hurt. Bad actors can — and do — abuse the internet for nefarious and destructive purposes. But there are already safeguards in place to address harmful content not protected under the First Amendment, and Section 230 does not shield bad actors or lawbreakers. If you use Facebook to harass someone (please, don’t do that), you remain responsible for those actions.

CDA 230 also doesn’t stop online platforms from trying to cultivate orderly, pleasant, and useful sites. While the biggest social media companies, responsible for hosting the speech of billions, should resist calls to censor lawful speech, CDA 230 allows sites to delete abusive accounts, remove content that violates the site’s terms of service, or refuse to carry pornography without risking liability for the speech that they do host.

Despite these safeguards, the obvious good CDA 230 has done in creating a free, vibrant forum for speech in the modern era, and the clear harm that would result for the speech of billions should it no longer exist, some lawmakers are considering rolling the law’s protections back in ways that are poorly informed and even dangerous. One lawmaker has introduced a bill that would require a federal agency to decide whether a platform complies with a “political neutrality” requirement as a precondition for immunity. Others have proposed revoking platforms’ immunity when moderating “objectionable” content while retaining immunity for moderating “unlawful content” in good faith.

Setting aside the obvious constitutional problems with a government entity judging the political content of speech, or dictating the censorship decisions of online platforms, these proposals would make it far less palatable for online services to host others’ speech at all. If enacted, the internet’s marketplace of ideas — and our freedom to communicate online — would suffer.

The ACLU has continued to fight for Section 230 to protect people’s ability to create and communicate online. We have encouraged courts to interpret the law’s immunity provisions to enable as much free expression online as possible under U.S. law. We will remain vigilant in ensuring that the internet remains a place for self-expression and creation for all. We urge Members of Congress as they examine CDA 230’s role in the free expression to do the same.

Kate Ruane, Senior Legislative Counsel, ACLU &
Jennifer Stisa Granick, Surveillance and Cybersecurity Counsel, ACLU