Chelsea Langston

March 3, 2016

Apple is opposing a court order that asked it aid the FBI in gaining access to an encrypted iPhone, claiming constitutional rights. In its court filing on February 25, its attorneys claim that the federal investigators’request violates the First Amendment and also the Fifth Amendment’s Due Process Clause. Whatever the outcome of the case and one’s views on security and privacy, everyone interested in the religious freedom of institutions should be interested in Apple’s claim that the First Amendment applies to it as a corporation, especially given the great skepticism about the US Supreme Court’s 2014 Hobby Lobby decision.

In the Hobby Lobby decision, the Supreme Court allowed the closely-held corporation to claim a religious exemption from a generally applicable law—the health care law’s requirement that employers include contraceptives coverage in their employee health plans. Critics claimed that corporations, unlike real persons, cannot have constitutional rights; in addition, many were distressed that the decision allowed the Green family, owners of Hobby Lobby, to operate the company consistent with their opposition to the morning-after pill. Now Apple, a popular company with an iconic founder and polished consumer status, is also claiming constitutional protection for a corporate decision. Its claim gives us all another chance to consider organizational constitutional freedoms.

iPhones possess unbreakable encryption, responding to consumer demand for a very high level of privacy. Because an iPhone was used by one of the San Bernardino terrorists, the government has asked Apple for help in overcoming the encryption. According to Apple’s Motion to Vacate, the government is asking the company to write unlocking software that will work only on this one iPhone. However, Apple argues that well-established law treats computer code as speech within the definition of the First Amendment. Apple’s court filing further argues that the government is attempting to compel its speech, and so First Amendment safeguards are activated. A balancing test is required in these circumstances: “[compelled speech] may only be upheld if it is narrowly tailored to maintain a compelling state interest,”Apple says. The company claims that the government fails to meet this standard because it has not submitted any evidence that the iPhone may hold “relevant information.”

Now consider Hobby Lobby again. In this case, the craft company appealed to the Religious Freedom Restoration Act’s (RFRA’s) balancing test. The test required the government to show it had a compelling interest to burden Hobby Lobby’s exercise of religion and also that there was no less restrictive means to achieve the government’s compelling interest. The Supreme Court ruled that the HHS contraceptives mandate did violate Hobby Lobby’s religious freedom because the requirement compelled the company to act contrary to its sincerely held religious beliefs by having to pay for certain contraceptives for employees. Even if the government’s interest was compelling, it had not chosen the least burdensome way to achieve it. Note the similarity between the compelled-speech balancing test and the RFRA religious-freedom balancing test.

A Reuters poll shows that the popular Apple corporation’s opposition to helping the federal government is approved by nearly half of Americans, despite terrorism concerns. Religious freedom advocates should find hope in the public’s embracing of Apple as an entity worthy of First Amendment protections even though it is not a vulnerable individual claiming constitutional rights but, instead, a large and successful corporation. The media coverage about Apple’s case can serve as an opening for those supporting First Amendment protections for faith-based organizations to remind everyone of the importance of protecting the missions, viewpoints, speech, and activities of organizations, both secular and religious, both non-profit and for-profit, from compulsion to violate their most foundational values.

Apple also claims that the government’s request amounts to viewpoint discrimination in violation of the First Amendment. Apple claims that its “speech,”written code in this case, demonstrates the priority the company placed on consumer privacy and security. Apple argues that the court is asking it to develop new computer code that would embody a contrary stance than its values of data security and privacy. The Motion states: “This is, in every sense of the term, viewpoint discrimination that violates the First Amendment.”David O’Brien, a senior researcher at Harvard University’s Berkman Center for Internet and Society, stated in an interview with Forbes: “Courts look very unfavorably in circumstances where the government forces a private citizen or an organization perhaps to speak, to say something—especially if it [is] a view that they don’t side with.”

Courts and the public should also look just as unfavorably on government coercion of religious organizations, when they are pressed to act in a way that contravenes their bedrock faith doctrines, to adopt “a view that they don’t side with.”For example, the Supreme Court is set to hear the case of the Little Sisters of the Poor, a group of Catholic nuns who argue that they cannot in good faith offer an employee health plan that contains contraceptives. An aptly titled article from the Becket Fund summarizes the case as this: “High Court to decide if Government can force nuns to provide contraceptives.”Although in today’s society brand recognition and appreciation for an organization like Apple may be far more resonant with most Americans than Christian craft stores or nuns providing hospice services, the constitutional rights of all of these organizations should matter to all of us.

Apple ends its Motion with this: “The government’s desire…does not authorize it to cut off debate and leave no stone unturned.”In today’s diverse marketplace of opinions and viewpoints, civil society organizations and businesses alike need the freedom to live out their values so that they may meet the needs of those they serve. Apple claims that the government forcing it to create a new code to override the very privacy features it created to serve the needs of its security-conscious customers would be asking it, in essence, to act against its own foundational values and the best interests of those it served.

Likewise, when the government attempts to compel a faith-based organization to provide services or conduct its internal operations in a manner directly contradictory to its faith-inspired principles, the government is forcing religious organizations to “advance [the government’s] contrary views.”Faith-based organizations may never rise to the iconic status of Apple in the hearts and minds of many Americans. Yet Apple’s current court fight gives faith leaders the opportunity to raise up to the public the importance of First Amendment rights even for organizations.