Conservative Groups, GOP Lawmakers Rally Behind NRB.

National Religious Broadcasters’ effort to revive its constitutional challenge to a decades-old tax provision that limits political speech by nonprofits is drawing growing support from conservative legal organizations, religious liberty groups and Republican lawmakers, with several friend-of-the-court briefs urging the Fifth Circuit to reverse a lower court ruling that blocked the case before its merits could be considered.

The appeal centers on the Johnson Amendment, the provision of the Internal Revenue Code that prohibits not-for-profits — including churches and many religious broadcasters — from speaking about candidates and elections in ways they say are central to their religious mission. NRB, along with Sand Springs Church, First Baptist Church Waskom and Intercessors for America, argues the restriction violates the First Amendment by chilling speech about political candidates and elections. A federal judge in U.S. District Court in Tyler, TX dismissed their lawsuit in March. The groups then asked the Fifth Circuit to revive the challenge.

The supporters are now backing the NRB claims that the district court got wrongly concluded the dispute was fundamentally tied to tax law rather than speech. Leading the support is the American Center for Law & Justice, joined by Rep. Jeff Crank (R-CO) and Rep. Mark Harris (R-NC). Their brief argues the lawsuit is fundamentally about protecting speech — not avoiding taxes.

"This case is not about tax collection. It is about government-imposed silence," the ACLJ brief says. “They seek prospective relief from a federal speech restriction that presently chills churches and religious organizations from saying what their faith requires them to say about candidates, elections, and moral questions of public consequence."

The brief also takes direct aim at the Johnson Amendment itself, arguing it violates the First Amendment. It says the law intrudes on church autonomy by pressuring religious organizations to alter "the content of their teaching and ministry when that teaching intersects with elections," and imposes an unconstitutional condition by forcing churches to choose between retaining tax-exempt status and exercising protected religious speech.

A second coalition — including the Home School Legal Defense Association, True North Legal, Kansas Family, Texas Values and the Wagner Faith & Freedom Center at Spring Arbor University — focuses primarily on the procedural issue before the appeals court. The coalition also warns that forcing organizations to violate the Johnson Amendment before obtaining judicial review creates the very harm NRB alleges.

"A rule that conditions access to the courts on first incurring that penalty inevitably chills the robust advocacy and civic participation that the First Amendment is designed to protect," the brief states. The filing also claims religious organizations across the country face uncertainty about what they can say regarding elections.

 A third brief — filed by a coalition that includes Citizens United, Citizens United Foundation, America's Future, Public Advocate of the United States, Public Advocate Foundation, two Orthodox Church Mission Funds and the Conservative Legal Defense and Education Fund — raises many of the same arguments. The brief also offers a lengthy historical critique of the Johnson Amendment, arguing it has produced decades of self-censorship among churches despite relatively little IRS enforcement.

The appeals process is expected to take several months. But together, the three briefs illustrate the breadth of support NRB has attracted as it seeks to revive the lawsuit. Although they emphasize different legal theories, all ask the Fifth Circuit to reverse the district court and allow NRB's constitutional challenge to proceed on its merits.

The federal government has largely denied the allegations and disputed the religious groups’ characterization of the law. In filing after filing, the IRS says the complaint doesn’t reflect a complete and accurate characterization of the law.