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.
Repeatedly in these reports we have seen that defamation claims are so difficult and expensive to pursue that they are only a marginal church litigation threat. Indeed, in these reports we have characterized defamation law as a fortress that few if any claims will ever breach. Nevertheless, for reasons political and economic, defamation claims are sometimes filed, announced to the public and then forgotten, often without being served on the opponent.
In de Laire v Voris, Order (D. NH. 2021), the United States District Court for New Hampshire was the scene of a defamation claim brought by a bishop against an internet news media company known as the Church Militant (churchmilitant.com). The bishop apparently imposed “sanctions” on a parachurch organization during a doctrinal dispute. The Church Militant not only reported on the sanctions dispute, but reported the bishop was the subject of complaints about the bishop’s canonical competence and other matters. In response to the bishop’s defamation claims, the Church Militant issued a subpoena to the diocese, a non-party to the case, for documents. The non-party diocese objected to the requests in the subpoena. The trial court ultimately refused to enforce the subpoena because negotiations between the diocese and the Church Militant left the requests unclear to the Court. Nevertheless, the federal trial court noted that that defamation claims in general, and therefore a related subpoena, do not automatically require inquiry into ecclesiastical matters. Therefore, the objection of the diocese invoking the Ecclesiastical Abstention Doctrine of the First Amendment was inapplicable and in order to reassert it the Court instructed the parties to specify its applicability to the particular documents sought.
It is hard to understand why any church leader would think that a defamation lawsuit was worthwhile when weighed against unintended consequences like court discovery. Indeed, in the reported case, the Court assumed in its Order that the diocese and the Church Militant through counsel would negotiate further on the discovery requests made by subpoena. While “revelations” in discovery seem unlikely, the cost of responding is not an expense to which most churches are accustomed. Litigation also seems to be way a uniquely good way to perpetuate adverse news media coverage of an issue that might otherwise be ignored by the public in short order.
Clergy accused of molestation or child sexual abuse may be subject to criminal prosecution, civil lawsuits, and church disciplinary actions. In the latter category, the church, all of them, had to face the grim reality that failure to publicly reveal a finding of credibility in such an investigation will no longer be tolerated by church members, especially those otherwise loyal to the offering basket. The church found that the instinctive response of a church to rehabilitate, forgive, and to reinstate was no longer viable for clergy. The church came to this realization late because the church did not soon enough see the need to treat clergy with seemingly less compassion than laity.
In Foley v McElroy, Slip. Op. (Cal. App. 2021) the state appellate court affirmed dismissal of the Plaintiff’s defamation claim by the trial court. The Plaintiff sued because the church listed Plaintiff as “”credibly accused” of child molestation.” The church disclosed Plaintiff based on two allegations even after a church canonical trial as to one of the allegations “found him “not guilty.”” The appellate court noted by analogy that “[a] basic tenet of American criminal justice is that a not guilty verdict is not a determination of factual innocence.” To make a defamation claim, the Court held the Plaintiff would have to prove actual innocence and not merely that in a prior adjudication the “prosecution” did not make their case. In any event, only one prior allegation was adjudicated and not the other. Therefore, the Plaintiff failed to state a claim for defamation under California law.
While the criminal justice system has the nearly impossible task of determining the truth and punishing the guilty, the church should not undertake such efforts for clergy. The church that engages in such tasks will find itself not only ill-equipped but accused of aiding and abetting. The accusation will not come in the criminal justice system, except in rare cases, but rather in the court of public opinion. The church will find itself even less well equipped to defend itself in the court of public opinion. Indeed, the church will seem to have lost its way and to have abandoned its true mission. Meanwhile, clergy defamation claims are rarely tenable and less often successful because the claims cannot bypass the fortress defenses.
Even in light of recent Supreme Court decisions regarding federal employment claims against churches and parachurch organizations, some common law tort claims remain actionable against churches. We have reported many times regarding defamation claims. Defamation that is solely internal in the organization or in the web of organizations that make up a denominational authority is not likely to remain actionable long if it is at all. Defamation between different organizations in the same denomination, or to outsiders, may or may not be the foundation of viable claims.
In McRaney v North American Mission Board, Southern Baptist Convention, Slip Op. (5th Cir. 2020), the United States Court of Appeals for the 5th Circuit reversed the dismissal entered by the trial court. The Court of Appeals held that the dismissal was premature because the Complaint, the first document in a federal civil lawsuit, stated a civil claim and did not on its face appear to raise ecclesiastical issues. Also, the case was not brought as an employment claim. The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware. The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him. On remand, discovery may still lead to dismissal of the case by motion for summary judgment, in which more may be considered than merely the contents up to the four corners of the Complaint.
The lesson to be learned is that there are litigation risks other than wrongful termination and federal employment law claims. While defamation cases are rarely successful, churches communicating negative information about a former employee to a prospective new employer should do so only to protect the public good rather than merely because an employee fell out of favor or left hard feelings.