A hit documentary film challenging President Obama will be screened in tax-exempt churches, whether the IRS likes it or not.
2016: Obama’s America, which takes a critical look at the president and includes an interview with his half brother in Africa, has already grossed a strong $33.5 million at the box office. Now those behind 2016 are creating a new distribution window, if you will: Licensing the movie to churches at the tail end of its theatrical run and before it hits DVD or VOD.
A handful of churches already have signed on before the filmmakers even started to market the initiative. One of them, the influential mega-church Calvary Chapel Costa Mesa, licensed the film for $299 and will show it to an expected 500 congregants Saturday, and Calvary Chapel Downey did likewise for the following Saturday. Neither church responded to an interview request from The Hollywood Reporter.
But will the screenings violate U.S. tax rules?
According the IRS code, 501(c)(3) organizations, including churches, are restricted from electioneering, which includes actively supporting or opposing one presidential candidate over another. But organizations have been known to challenge such boundaries. Conservatives, for example, routinely question whether the self-described “progressive” organization Media Matters for America is deserving of its tax-exempt status.
The law is murky, too, as applied to churches. Pastors are allowed to endorse candidates on a personal level and even lend their names to candidates for use in political ads, as long as the church is left out of the equation. This week, for example, the Rev. Billy Graham met with Republican presidential candidate Mitt Romney and told him that he would do “all I can” to help him win, and Graham had no problem with the campaign dstributing photos of the meeting and speaking to reporters about the de facto endorsement.
Some conservative churches want the same partisan privileges that individuals such as Graham enjoy, so they have been purposely flaunting the law, arguing that liberal-oriented churches get away with partisan behavior all the time. One popular refrain, for example, is that the Rev. Jeremiah Wright and Trinity United Church of Christ in Chicago were firmly behind Obama’s presidential run in 2008, so why should any church be prevented from supporting Romney in 2012?
Last Sunday, hundreds of conservative preachers across the country participated in Pulpit Freedom Sunday, an event staged once a year since 2008 whereby church leaders endorse political candidates and positions. Organized by Alliance Defending Freedom, its goal is to force a response from the IRS so that the issue can be resolved in a court of law, said the group’s senior legal counsel Erik Stanley.
“The 58-year-old Johnson Amendment in the tax code -- which is what the IRS uses to restrict what pastors can and cannot say from the pulpit — is unconstitutional,” Stanley said.
Naturally, some liberals disagree. Two days ahead of Pulpit Freedom Sunday, Brendan Kiley, who has written for Newsweek and the Forward, wrote at TheStranger.com that "over a thousand American preachers are going to strike a craven blow against the separation of church and state and doll it up as if they're doing liberty and the First Amendment a favor."
Dinesh d’Souza, the star and co-director of 2016, told The Hollywood Reporter that churches should not fear the IRS if they screen his movie.
“The last time I checked we still live in a free country,” he said. “My film takes no partisan sides – I don’t urge a vote for or against Obama – I just want people to think and make an informed decision. This film is well within the limits of protected free speech in a church setting.”
While some legal scholars agree with those sentiments, current law may not be on the side of churches that license 2016, Stanley said.
"If a church wants to speak out about candidates in that way, [church leaders] should have the right to do so, but current IRS regulations say that they don't," said Stanley.
Stanley said that few churches are ever challenged by the IRS over politics and that when they are, the churches tend to back down. If they fight, the IRS might drag the church through an audit, tell it to stop its partisanship then close the case without further legal action.
"They send a letter saying, 'You vioated the law and don't do it again but we're closing our file.' So no court anywhere has ever had the opportunity to decide if it's constitiutional to censor a pastor," Stanley said.