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In fact, it was only a few years ago, in Masterpiece Cakeshop, that the government acknowledged the constitutional problems involved in compelling artists to speak government-favored messages. In that case, the United States acknowledged “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’””°° The department had it right when it argued that the government may not “compel the dissemination of its own preferred message,” because the First Amendment protects the “individual freedom of mind.”®’ It was also correct when it argued that “[a]n artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”°* The United States’ directly contrary position in 303 Creative is hard to explain based on anything other than its support for the message the State of Colorado was attempting to compel.

It is black letter law that no official “can prescribe what shall be orthodox...or force citizens to confess by word or act their faith therein.” Rather, the First Amendment places “the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity.””° As the Supreme Court has noted, government officials have frequently sought to “coerce uniformity of sentiment in support of some end thought essential to their time and country.”” In the face of such attempts to coerce orthodoxy, the DOJ should maintain its commitment to upholding the Constitution’s neutral principles of free speech, which commit the government “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.””

Pursuing Equal Protection for All Americans by Vigorously Enforcing Applicable Federal Civil Rights Laws in Government, Education, and the Private Sector. Entities across the private and public sectors in the United States have been besieged in recent years by an unholy alliance of special interests, radicals in government, and the far Left. This unholy alliance speaks in platitudes about advancing the interests of certain segments of American society, but that advancement comes at the expense of other Americans and in nearly all cases violates long-standing federal law.

Even though numerous federal laws prohibit discrimination based on notable immutable characteristics such as race and sex,” the Biden Administration— through the DOJ’s Civil Rights Division and other federal entities—has enshrined affirmative discrimination in all aspects of its operations under the guise of “equity.” Federal agencies and their components have established so-called diversity, equity, and inclusion (DED) offices that have become the vehicles for this unlawful discrimination, and all departments and agencies have created “equity” plans to carry out these invidious schemes.” To reverse this trend, the next conservative Administration should:

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• Ensure that the DOJ spearheads an initiative demonstrating the federal government’s commitment to nondiscrimination. The department should also lead a whole-of-government recommitment to nondiscrimination and should be working with all other federal agencies, boards, and commissions to ensure that they are both complying with constitutional and legal requirements and using their authorities and funding to prevent discrimination not only internally, but also at the state, local, and private-sector levels. This will require particularly close coordination with several key agencies, including such obvious candidates as the Equal Employment Opportunity Commission; the Departments of Defense, Education, and Housing and Urban Development; and the Securities and Exchange Commission. It will also require enforcing contractual requirements that prohibit discrimination on federal contractors.

• Reorganize and refocus the DOJ’s Civil Rights Division to serve as the vanguard for this return to lawfulness. The Attorney General and other DOJ political leadership should provide the resources and moral support needed for these efforts. The Civil Rights Division should spend its first year under the next Administration using the full force of federal prosecutorial resources to investigate and prosecute all state and local governments, institutions of higher education, corporations, and any other private employers who are engaged in discrimination in violation of constitutional and legal requirements.

Announcing a Campaign to Enforce the Criminal Prohibitions in 18 U.S. Code §§ 1461 and 1462 Against Providers and Distributors of Abortion Pills That Use the Mail. Federal law prohibits mailing “[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.””° Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.

Reassigning Responsibility for Prosecuting Election-Related Offenses from the Civil Rights Division to the Criminal Division. The Attorney General in the next conservative Administration should reassign responsibility for prosecuting violations of 18 U.S. Code § 241” from the Civil Rights Division to the Criminal Division where it belongs. Otherwise, voter registration fraud and unlawful ballot correction will remain federal election offenses that are never appropriately investigated and prosecuted.”