On this day, December 15, National Bill of Rights Day, OMB Watch would like to pay tribute to our nation’s First Amendment. This 45-word phrase, drafted by James Madison more than 210 years ago, has guaranteed freedoms and liberties through more than two centuries – allowing for freedom of speech, freedom of religion, freedom of the press, freedom to peaceably assemble, and the freedom to access public information. This special feature of the Watcher, in honor of Bill of Rights Day, looks into our First Amendment rights during the years of the Bush administration. This article is by no means a comprehensive assessment of all the issues involving the First Amendment; however, it is a brief overview of how the First Amendment has shifted during the years of the Bush administration -- with a special focus on a nonprofit perspective. Please note, that this analysis is just the first of many on this issue. Missing from this analysis is the mention of the Patriot Act and its effect on First Amendment rights. “Congress shall make no law… abridging the freedom of speech, or of the press;”(U.S. Constitution, Amendment I) The Bush administration has been creative in its use of agency authority to censor or chill dissent. For instance, the federal government began using its grant system to control or limit the voices and actions of those receiving federal funds. Some examples are:

• The Bush administration has taken the highly unusual step of sending a letter to Head Start programs warning that advocacy on issues relating to the controversial reauthorization of the program may be a violation of federal law. Conversely, the right of nonprofits to use private money or volunteers for this purpose is protected by the First Amendment to the Constitution. HHS had to send out a new, corrected letter after the National Head Start Association sued them in federal court. For more on this issue see the Save Head Start web site.
• After a group of activists booed Secretary of Health and Human Services (HHS) Tommy Thompson at an international AIDS conference in Barcelona last year, a cadre of congressional Republicans called for investigations of the hecklers' organizations. Once again the administration was using its control over federal funds to quiet those who ideologically oppose their policies.
• HHS targeted Advocates for Youth and other comprehensive sex-education programs for not conforming to the abstinence-only education programs that both the Secretary and the President wanted. Advocates for Youth, a federal grantee for 15 years, got audited three times in one year. In July 2001, the Washington Post published a leaked memo from the Department of Health and Human Services in which Advocates for Youth was described as ardent critics of the Bush administration. This charge apparently came as the result of several Advocates for Youth press releases that railed against the president's backing of the global gag rule, which prohibits any funding to foreign agencies that counsel, perform or facilitate abortions. In the leaked memo, it was also suggested that the Advocates for Youth programs did not go over well with HHS because the secretary [Tommy Thompson] is a devout Roman Catholic. Read more on this issue.
• President Bush has urged Congress to increase support for the abstinence-only programs by tens of millions of dollars for fiscal year 2004. As a condition of receiving the federal funds, schools must promote abstinence until marriage exclusively with the earmarked funds and are prohibited from mentioning contraceptives as a way to prevent pregnancy or disease, except to discuss their failure rate. These conditions set by the Bush administration ultimately prohibit schools that are in desperate need of funds for sex education from speaking freely on important issues. Teen pregnancy rates have been declining since 1990 but studies have indicated the decrease has been due to both increased use of contraceptives along with an increase in the number of teens practicing abstinence.
• HHS targets over 150 NIH-funded scientists. In early October, congressional Republicans sent a list to the National Institutes of Health (NIH) identifying more than 150 scientists with grants to conduct research on HIV and sexual behavior. NIH responded by contacting these researchers to inform them that they may need to answer questions about their government-funded work.

In addition to using grant money, the Bush administration has used other levers of powers to control the voices of opposition. From the Defense Department to the Federal Communications Commission, those in opposition to Bush’s policies experience authoritative backlash. Some examples include:

• The unusual federal prosecution of Greenpeace has posed a threat to first amendment rights. Greenpeace is being prosecuted by John Ashcroft's Justice Department because of the protest actions of two of its supporters. Last year, two Greenpeace activists climbed aboard a ship carrying Amazon mahogany wood into the Port of Miami. The two activists posted a banner that said, "President Bush: Stop Illegal Logging.” They were arrested and charged with misdemeanors. Now Greenpeace has been indicted in Miami with violating an obscure 19th century law meant to keep boarding house owners from boarding arriving ships to recruit sailors. The trial is set for December in Miami, Florida. If convicted, Greenpeace could be fined up to $10,000, placed on probation and required to report to the government on its activities. It could also lose its tax-exempt status.
• The Federal Communications Commission (FCC) bans the song “Your Revolution” by Sarah Jones. Read the ruling, which concluded that the Sarah Jones' song did not violate the applicable statute or the Commission's indecency rule, and that no sanction was warranted. To read more about this issue visit

Congress shall make no law…abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances (U.S. Constitution, Amendment I). After President Bush invaded Afghanistan and declared war on Iraq, the right to assemble and to petition the government for a redress of grievances once again became of significant importance. Hundreds of the thousands of people took to the streets in opposition to the war. While the government did not blatantly shut down these many protests the Bush administration did, however, use behind-the-scene tactics in effort to belittle the significance of the message protesters were trying to send. For example, Attorney General John Ashcroft sent a memo to the Secret Service telling them to get protesters out of sight. At events attended by President Bush and other senior federal officials around the country, the Secret Service has been discriminating against protesters in violation of their free speech rights. According to ACLU legal papers, local police, acting at the direction of the Secret Service, violated the rights of protesters in two ways: people expressing views critical of the government were moved further away from public officials and the press, while those with pro-government views were allowed to remain closer; or everyone expressing a view was herded into what is commonly known as a “protest zone,” leaving those who merely observe, but express no view, to remain closer. According the New York Times, the FBI has been collecting and disseminating extensive information on the tactics, training, and organization of antiwar protesters who are doing nothing more than exercising their right to protest and dissent. Read more. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”(U.S. Constitution, Amendment I, the Establishment Clause) Until recently, one could not argue that the state of the law surrounding the separation of church and state was unclear – direct government financing of inherently religious activities is unconstitutional based on the First Amendment. However, the Bush administration has aggressively worked to shift that clear definition. Today, court battles loom over what type of religious activities government can fund directly. It would be unfair to attribute all this change to the Bush administration alone. The introduction of Charitable Choice into the welfare reform act (or Personal Responsibility and Work Opportunity Reconciliation Act of 1996), sponsored by then Senator John Ashcroft and signed by President Clinton, lead to creation of (then Governor) George W. Bush’s Faith-Based Initiative. As a Presidential candidate, Bush promised that he would create a “level playing field” for faith-based organizations to compete for government funds for delivering social services. He proposed an executive office of Faith-Based Action to promote charitable choice. Indeed, once elected, President Bush did what he promised and created the White House Office of Faith-Based and Community Initiatives (FBCI). During the President’s first two years in office, he and the new FBCI pushed Congress to pass legislation that would allow for faith-intensive organizations to partner with government in providing social services. However, because of dissent within Congress on many issues, the legislation never made it through both houses. Nevertheless, the President found another avenue to push his agenda forward – executive order of regulatory and policy changes for federal agencies. The order -- which allowed for all federal agencies to award grants or contracts to religious organizations that discriminate in hiring on the basis of religion, and provide services in facilities that display religious icons and art -- specifies that a religious organization can maintain its structure and pursue its religious mission, “provided that it does not use direct federal financial assistance to support any inherently religious activities, such as worship, religious instruction or proselytization.” This began the transformation of the Establishment clause. For the law no longer forbade direct funding of faith-intensive organizations for their secular activities (i.e., social services). And as Ira Lupa and Robert Tuttle explain in their report, State of the Law 2003, it is quite clear that law permits indirect financing of any religious activities. A needy person receiving aid through a voucher program or sub-award may have to sit through religious services before they actually receive aid from their social service provider. Yet the extension of the church-state relationship did not stop there. Below are other examples that illustrate how the Establishment clause of the First Amendment has been rapidly transforming during Bush’s years in office.

• The Compassion Capital Fund, a federal program that distributes funds to intermediary grantees, in October 2002 enlisted 21 faith-based and community organizations to give grants to faith-based and community groups for capacity building. One of the 21 intermediaries is Operation Blessings, a religious charity created and run by TV evangelist, Pat Robertson. Americans United for the Seperation of Church and State's executive director, Rev. Berry Lynn stated, “Giving religious groups control over public funds is a blatant violation of the Constitution." Under the First Amendment, religious ministries shouldn’t become an arm of the government.”
• The Department of Housing and Urban Development (HUD) changed its rules after Bush’s executive order. The new HUD rule allows funds to be granted to faith-based organizations for construction or renovation of houses of worship. Buildings used for worship as well as federally funded programs can now receive rehabilitation and construction funding so long as funds are not used on the principal room used for prayer. However, there are no accountability procedures in place. One of the major provisions that halted Bush’s faith-based initiative in Congress was reinterpretation of civil rights laws that would allow faith-based organizations that federal grantees to discriminate in hiring on the basis of religion for positions providing secular social services . However, Bush infiltrated this controversial language into his executive order. The provision could require applicants for federally funded jobs to pass a religious litmus test. For example, a Jewish person applying for a position as a teacher in a Head Start program housed in a Catholic church could not be hired, regardless of experience and expertise.

There are more First Amendment battles still to be fought. OMB Watch has set up a web forum in which you can further discuss these issues of the First Amendment. Today, it is everyone’s duty to take some time to think about our Bill of Rights, and what it means to have such a document that defines our certain inalienable rights.