Forced Labor Is Not Protected by the First Amendment

The First Amendment absolutely protects what you believe. It does not blindly protect what you do to another person. 

This distinction is not new. The Supreme Court clearly drew it in its first free exercise of religion case in 1878 in Reynolds v. United States, which upheld federal anti-polygamy laws against a religious defense. It drew the line in case after case following Reynolds, and then, when the Court catalogued all of its earlier cases, it reaffirmed the principle in Employment Division v. Smith in 1990, holding neutral laws of general application apply equally to religious actors and to everyone else. Belief is sacred. Conduct meets the law. You may believe what you want about handling venomous snakes, polygamy, or sacrificing children. The state will still arrest you when somebody dies or is harmed. 

A recent essay in the National Law Review by Tony Farina confuses the belief/conduct distinction when he argues that the Second Circuit should overturn the forced labor convictions of Nicole Daedone and Rachel Cherwitz of OneTaste because the prosecution criminalized “the persuasive power of ideas.” This is the wrong question. The jury did not convict two women for teaching ideas. The jury convicted them for what they did to workers under those ideas. Nine sworn witnesses testified. The jurors heard the evidence. They returned a unanimous verdict. 

Congress wrote the federal forced labor statute, the Trafficking Victims Protection Act (TVPA), 18 U.S.C. § 1589, in 2000 and amended it in 2008 to define serious harm as including any harm “whether physical or nonphysical, including psychological, financial, or reputational.” Lawmakers chose this language on purpose. They knew traffickers use psychological methods to achieve their illegal ends. They also knew of NXIVM, where Keith Raniere and Allison Mack were prosecuted in the same Eastern District of New York under the same statute, receiving sentences of 120 years and 3 years, after creating a cult of control over their members, who were branded and labor and sex trafficked. The Cherwitz case is not novel. It applies a settled federal statute to settled federal conduct. 

One of us, Steven Hassan, is named directly in Farina’s essay, and the framework he developed, the BITE Model of Authoritarian Control, is attacked as unscientific. The opposite is true. His 2020 doctoral dissertation at Fielding Graduate University tested the BITE Model with 1,044 participants and produced a Cronbach’s alpha of .93 and a reliability score of .98. The framework has been used by attorneys, federal trafficking coordinators, and survivor advocates, including Carissa Phelps, Rachel Thomas, and the Ending the Game curriculum for sex trafficking survivors. Farina does not address the data. He repeats the standard misreading of Fishman v. United States, 743 F. Supp. 713 (N.D. Cal. 1990), a single district court ruling excluding one expert in one case. It did not condemn the underlying science. The American Psychiatric Association has since formally recognized “identity disturbance due to prolonged and intense coercive persuasion” in the DSM-5. 

One of us, Marci Hamilton, has named the deeper legal problem here in three decades of scholarship and litigation. Hamilton argued and won Boerne v. Flores, 521 U.S. 507 (1997), which struck down the Religious Freedom Restoration Act. God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge, 2d ed. 2014) explains the architecture. RFRA introduced extreme religious liberty to the United States, where the courts do not consider the harm to third parties. The approach weighs only the burden on the religious actor and treats the victims as though their suffering is irrelevant. The OneTaste workers are third parties. Their harm is the missing variable in Farina’s analysis, as it is in nearly every cult apologist’s brief. Hamilton has summarized her position in one sentence: a religious group harming others is not worthy of deference. 

Farina’s strategy is consistent with the “religion should always win” camp. First, control the narrative, including trying to shame anyone who uses the technically correct term, “cult.” It’s akin to Professor Michael McConnell when he was litigating Rosenberger v. Univ. Virginia, in 1995, which was the beginning of the end of the separation of church and state doctrine, that it was insulting to use the term “proselytizing.” In fact, “cult” and “proselytize” are legitimate nomenclature in religious scholarship. Second, follow the architecture of their version of religious liberty: Reframe the source of the harm as religious belief. Reframe the prosecution as persecution. Reframe the victims as voluntary believers, so the horrible things that happened to them are their fault, and question their credibility by arguing they cannot be trusted because they left the cult.

The term “new religious movement” was coined by cult defenders in the 1980s to soften public perception of groups like the Moonies, Scientology, and the Children of God. J. Gordon Melton, a scholar of religion, traveled to Tokyo at doomsday cult Aum Shinrikyo’s expense to defend the group during the investigation of its sarin gas attack on the subway that killed 14 and injured over 6,000 others. The same Melton said of Jim Jones’s People’s Temple, ten years after the mass suicide of more than 900 people, “This wasn’t a cult. This was a respectable, mainline Christian group.” Farina is not a neutral observer. He relies on Massimo Introvigne, who has spent years defending the public reputations of Scientology, the Unification Church (Moonies), and many other destructive cults. One of us (Steven Hassan) was deceptively recruited and brainwashed into the Moonies in the 1970s, and this experience has been the motivation for a fifty-year career researching, counseling, writing, and teaching about undue influence. 

InStanley v. Georgia in 1969 (1969), the Supreme Court states the principle: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” The Framers drew this line because they wanted citizens to have the right to think for themselves. The constitutional heritage rebels with equal force when private actors strip people of mental autonomy for profit and harm. Chief Justice Earl Warren wrote in Miranda v. Arizona in 1966 (1966): the illegal interrogation environment "is created for no purpose other than to subjugate the individual to the will of his examiner.” Coercive groups create the same environment. Alan Scheflin, professor emeritus at Santa Clara Law School, put it this way: the First Amendment “would be hollow if it merely protected the right to be a marionette expressing the thoughts implanted by others.” 

Clergy sex abuse expert and former Catholic priest Thomas Doyle has recognized and advocated for the theory of coercive control in the Catholic cases. How else do you explain the parents who knew about their children being sexually abused by priests but not going to the authorities and/or the huge secret universe that let priests sexually abuse thousands of children here and abroad? Farina argues that the OneTaste convictions should be overturned, because evangelical Christian pastors might be targeted. Let’s make this clear: the religious identity of a bad actor should be irrelevant under the law. If the harm is illegal, religious and irreligious alike should be held to account. 

The Second Circuit faces a clear question. Does 18 U.S.C. § 1589 mean what Congress said it means? Does psychological coercion count when Congress wrote it into the law? Does the testimony of nine survivors outweigh the public relations strategy of a wellness brand? The Framers protected the right to believe. They did not protect the right of one person to install thoughts in another for profit. They did not protect labor extracted by coercion under any banner, religious, secular, or wellness. Daedone and Cherwitz received fair trials. The victims were heard. The law is sound. The First Amendment is too important to be twisted into a cover for the people who destroy the lives of others. 

Disclaimer: The opinions and views expressed in this article are those of the authors and not necessarily those of The National Law Review. 

Marci Hamilton is a Professor of Practice in Political Science and the Fox Family Pavilion Non-resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvania and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty. She was lead counsel for the petitioner in Boerne v. Flores.

Steven Hassan, Ph.D., is the founder of the Freedom of Mind Resource Center and the author of The Cult of Trump and Combating Cult Mind Control.