Category: Uncategorized

DEFAMATION OF OUTSIDERS

While we have examined many cases in which an insider, a member or a terminated employee, asserted defamation claims based on actions allegedly taken by a church, and typically found the outcome in those cases to restrict or prohibit the defamation claimed, there has never been a prohibition of defamation claims by outsiders. Likewise, defamation of outsiders, such as non-members, by a church or religious leader should never be considered a “safe harbor.”

In One for Israel v Reuven, Order on Defendant’s Motion to Dismiss (SD FL 2022), the federal trial court refused to dismiss a defamation case brought by missionaries employed by the Plaintiff against a vocal religious leader. The Defendant religious leader maintained a website, a mobile app, and a YouTube channel to promote religious belief. The Defendant posted a video to his platforms in which he alleged the Plaintiffs attempted to assault and batter a religious leader during a debate about certain religious issues. The video making the allegations was not a video of the event but only of Defendant’s allegations. The video was viewed 7,500 times, according to the Court, before the Defendant interviewed the alleged victim of the assault and learned no such assault ever occurred or was attempted. The Defendant alleged the missionaries were “public figures” and had to plead and prove “actual malice.” The Defendant alleged the Court would have to decide religious issues and therefore was prohibited from hearing the case by the Ecclesiastical Abstention Doctrine. The federal trial court held the missionaries were not public figures because the religious issue between the Plaintiffs and the allegedly assaulted religious leader, though important to the participants, was not a great public concern and was not “discussed in the news.” The Court held “theological debates do not generate comparable public controversy.” The Court held the Plaintiff’s lacked “special prominence” in the religious issue and could not be shown to be more than “tangential participants.” Finally, the Court held the alleged defamation had no relationship to the religious issues. The Court held the allegation of defamation was sufficiently pled as noted above and because “one can draw a reasonable inference that such a statement would likely have a significant impact on the profession of a missionary.” The Court held the defamatory statements did not raise any religious issue, but rather were about “a violent attack that did not happen.”

The federal trial Court might have overstated the general notion that religious theological debates “do not” engage the public notice or appear in legitimate news reporting. The better statement would have been, “usually do not.” The current movements toward disaffiliation from denominations over abortion and homosexuality clearly evidence it can be otherwise. Regardless, in the case reported, the issues may not have reached such prominence. The trial Court’s more important ruling was that the alleged “violent attack that did not happen” was not related to a religious issue. In Florida, defamation per se includes allegations charging someone with an “infamous crime” such as attempted assault and battery when it did not happen.

IDEOLOGICAL DEFAMATION CLAIMS

The defamation claims that arise between churches or their clergy do not so far include claims by which the allegedly wronged party claimed the wrong was that their beliefs were mischaracterized, or even described pejoratively. Usually, defamation is alleged when the allegedly wronged party claims they were falsely accused of heinous misconduct, not merely beliefs the accuser held to be unpalatable. While it may seem obvious that the First Amendment would never permit a defamation claim based on the allegation that beliefs were mischaracterized, or even described pejoratively, it seems someone had to try it.

In United Federation of Churches, LLC v Johnson, Order Denying Motion for Reconsideration (WD Wash. 2022), the Plaintiff, also known as the “Satanic Temple,” alleged the Defendants violated the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. §1125. The Court opinion does not recite the precise manner in which the Defendants were alleged to have done this. But, the Plaintiff alleged their Facebook page had been compromised in some fashion. The Court rejected the cybersquatting claim because “Facebook.com” is not a domain name protected by the statute. The statute prohibits creation of identical or confusing domain names. The Plaintiff alleged the Defendants defamed them on other Facebook pages accusing Plaintiff of “ableism, misogyny, racism, fascism, and transphobia.” The federal trial court dismissed the defamation claim because “resolving the claim would require the court to violate the First Amendment by “delving into doctrinal matters,” contrary to the Ecclesiastical Abstention Doctrine, in order to “define the beliefs held by” Plaintiff to determine if the allegations were untrue.

Churches with Facebook or other social media platform presences, or even pedestrian websites, should expect that critical review, even vile critical review, of their beliefs will generally be unassailable. Only when such castigation violates the Terms of Service of a platform will any recourse be available. Churches should assume that even complaints about violations of Terms of Service will likely be ineffective. Internet Trolls may be unavoidable but the sure strategy is simply to out live them.

DEFAMATION AND CHURCH DISCIPLINE

The law of defamation during church disciplinary actions is complicated by the multiplicity of approaches taken in each state and because such cases are rare. Indeed, the cases are so rare that changes in societal mores and norms, not to mention law, have probably changed dramatically between the incidence of such cases.

In Laguerre v Maurice, 2020 NY Slip Op 07877 (NY App. 2020), the defendant pastor allegedly told the 300-member congregation during a “membership” meeting that the Plaintiff, an Elder in the congregation, was a homosexual who viewed gay pornography on the church’s computers. The Plaintiff sued claiming the statement by the pastor was defamatory per se. The defendant pastor alleged the statement, if made, was part of an ecclesiastical disciplinary process over which the court had no jurisdiction. Further, the defendant pastor alleged the statement, if made, was made to the membership and was protected by a common interest privilege. The Court held there was no ecclesiastical issue because neutral principles of law would suffice. The Court held the Plaintiff’s allegation the pastor’s statements to the membership were made with malice made any common interest privilege inapplicable. The malice alleged was that the statements were only made to remove Plaintiff as an Elder and force him out of church membership and not to vindicate a moral or religious position. Thus, the case was not outright dismissed. However, the Court affirmed dismissal of the theory of recovery for defamation per se, overruling a prior 1984 decision of the Court along the way, by holding allegations of homosexuality were no longer defamatory per se. The Court held state public policy no longer considered allegations of homosexuality defamatory per se.

Unless denominational or church governance documents require statements about the basis of church disciplinary actions to the membership, rather than just the church leadership, such statements should be avoided for obvious reasons. Churches that deem homosexuality as immoral must still exist in a society that no longer permits discrimination against homosexuals. That does not require abandonment of morality, but it does require intelligent co-existence. See, 1 Timothy 5:19-20. Most churches have moved well past the era in which divorced persons were ostracized and so, too, might that happen regarding other mores.

EMPLOYMENT AGREEMENT AUTHORITY

Does the pastor, minister, evangelist, priest, rabbi or imam have the authority to enter into an employment contract that will bind future church leaders? However, in order to answer such a question judicially may require that a secular court develop a full understanding of the ecclesiastical structure of a denomination or church.

In Napolitano v St. Joseph Catholic Church, Slip Op. (FL. App. 2020), the plaintiff was for twelve years employed as the office manager of the church. When the pastor learned that he was to be replaced by the hierarchy of the denomination, a written employment contract was for the first time entered into between the church and Plaintiff. The contract had a term of four years and required termination only for cause. It also automatically renewed for another term if there was no written notice of intent to terminate six months before the end of the term. The new pastor terminated the Plaintiff without notice. The Plaintiff allege breach of contract and that the former pastor had apparent authority to enter into the employment agreement and bind the denomination. The case was dismissed by the trial court and the appellate court affirmed dismissal. The appellate court held that the actual authority of the former pastor to enter into the employment agreement and bind the denomination was a question of ecclesiastical doctrine into which the court could not intrude. The court held that the question of apparent authority was likewise an ecclesiastical inquiry.

Denominations should consider including in their governance documents clauses that preclude or require the prior written approval of written employment agreements. Several different approaches could be taken. These might include requiring written approval only if the written employment agreement has a tenure greater than one or two years, or if it permits termination only for cause, or require an automatic termination clause in the event a new minister is appointed or licensed by the denomination for the church. Local churches without denominational affiliation or oversight should in their governance documents spell out whether a single church leader can enter into an employment agreement without approval of a governing board.