Most of the “excommunications” in court opinions we have reported were not actionable in a court. The Ecclesiastical Abstention Doctrine precluded the court from considering the issue in isolation. Only if there was a legitimate dispute based on church governing documents about who had a right to the keys to the building might the issue of membership termination be impacted though not considered.
In Tharp v Hillcrest Baptist Church, 2022 Ohio 4695 (Ohio App. 2022), the trial court granted summary judgment to the defendant church. The Plaintiff was confronted by the church pastor about an allegation of sexual misconduct brought by another member. The pastor was told that the other member saw Plaintiff and allegedly identified him as the person that molested him thirty years earlier. The Plaintiff admitted the factual basis of the allegation but denied wrongdoing. The Plaintiff repeated the admission in a deposition. The church expelled the Plaintiff from membership. The Pastor allegedly advised the congregation of the expulsion and that it was based in part on the opinion of an “expert” consulted by the Pastor. The “expert” allegedly opined the Plaintiff had an “incurable illness” and his volunteer work in the youth ministry “amounted to grooming children.” The Plaintiff’s defamation claim was dismissed because the Pastor had “qualified immunity,” arising from a duty to speak as to “church interests” in the report to the congregation, as well as from the general duty to protect children. The court held “church discipline” was “beyond the scope of review by a secular tribunal.” The claims of molestation did not appear in a background check and the Plaintiff allegedly failed to disclose them while applying to volunteer in youth ministry. The “confrontation” by the Pastor was not in the course of confessional or penitent communication.
The church and the Pastor seemed to move resolutely from the original notice by the other member, to confrontation, and then to expulsion. The lawsuit provided the opportunity to take a deposition. This seemingly resolute step at a time approach without hesitation upon confirmation, from the confrontation and the notification by the other member, made the outcome virtually certain. Churches that dither, wring their hands, or try without professional guidance for “reclamation” and unverified “repentance” end up with claims more costly or difficult to defend.
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.
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.