Tag: defamation

THE DEFAMATION FORTRESS

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.

A PICTURE IS WORTH A LAWSUIT

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 5^th 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.

PUBLICLY REPORTING SEXUAL MISCONDUCT OF CLERGY

There are movements afoot, that may or may not be successful, to make criminal convictions non-public and to ban employers from considering convictions, much less allegations that did not lead to convictions. The concerns behind these movements is that persons convicted of crimes, especially felonies, are permanently “marked” and find employment problematic. Meanwhile, there are movements afoot, that have had marked temporal success demanding transparency regarding allegations of sexual misconduct against those in power and especially in the clergy. Those targeted by such allegations, even though the allegations are no longer actionable or prosecutable are often similarly “marked” and their future employment impaired. Persons against which allegations were made but for which no conviction resulted may resort to civil lawsuits to try to clear their name or suppress continued reporting of pending or unresolved allegations.

In Kaucheck v Detroit Free Press, Slip Op. (Mich. App. 2020), a priest was suspended from public ministry in 2009 regarding allegations of sexual misconduct after an “independent investigation” determined the allegations were “deemed substantive.” The church process regarding the allegations remained in the “Congregation for Clergy at the Vatican.” The priest founded in 2016 a ministry to teenage pregnant females at which he served as an ex-officio board of directors member and “director of development.” The ministry was not officially affiliated with the church. A public outcry ensued which found its way onto the internet and finally into the news media. The Plaintiff sued the news media and the individuals and organizations complaining about the Plaintiff’s involvement in the ministry to teenage pregnant females. The trial court granted summary judgment to the defendants. The appellate court affirmed holding that the statements made were not defamatory because they were true and because public reporting of the allegations and the outcry was protected non-actionable First Amendment speech.

The structural flaw in the Catholic church is that the final decision to defrock or exonerate a priest, bishop or cardinal cannot be completed in a timely manner. In the case reported the case remained unresolved after eleven years. Thus, the Plaintiff was left before the public as a priest. The announcement of the church that the Plaintiff was “banned from public ministry” was not emblazoned on Moses’ tablets and was prone to being lost in the mists of time. The Catholic church could restructure such decisions so that national level determinations are made by a “jury” of the leadership. Appeal to a Vatican level review could be by application for certiorari, much like the United States Supreme Court.

Evangelical denominations move more quickly but then must require their local churches not to allow defrocked clergy into local church leadership positions. Verification should be practiced by an annual review of the names of local church leaders and employees. In the age of computers, this is not an insurmountable task. Non-denominational churches should actually call church leaders at prior employers, rather than only conduct inexpensive criminal conviction background checks (which have their own problems in the age of identity theft and identity obscuring). Personnel file waivers can be signed by candidates for employment that allow personnel files to be retrieved from prior employers to verify that there have been no sexual misconduct complaints.

INTERNAL CHURCH DEFAMATION

Typically, as long as the dispute among church members about church matters stays within the congregation the words said will not be actionable defamation. Courts are barred from considering doctrinal issues by the Ecclesiastical Abstention Doctrine inspired by the First Amendment. Thus, in order to avoid doctrinal issues lurking in ill chosen words among church members, courts refuse to hear internal defamation claims. After all, while accusing someone of “lying” might be defamatory, it might be doctrinal if the claim is that they are lying about Scriptures in order to mislead the flock.

In Lippard v Holleman, Slip Op. (NC App 2020), the North Carolina Court of Appeals had to render the first decision in that state about whether statements made between members in a church regarding a church dispute were actionable defamation. The church pianist and the Minister of Music began a dispute over assignment of church service solos that escalated into an intractable conflict. Several, if not numerous, sessions to achieve “reconciliation” were attempted to no avail. Finally, the Senior Pastor recommended termination to the Board of Deacons. Eventually, the Board of Deacons recommended termination to the Personnel Committee. Eventually, the Personnel Committee recommended termination to the congregation. However, the congregational vote did not produce votes exceeding three-quarters of the voting membership in favor of termination. As a result, the pianist remained employed and the dispute wore on until finally the pianist resigned and sued the pastor and music minister for defamation.

Defamation is almost impossible to win, truth is a defense, and wrongdoers rarely have the resources to respond in damages. Nevertheless, oral statements and written statements should be temperate and truthful. Oral and written statements should remain among the church membership. If the constitution and bylaws of a church require a laborious termination procedure like that set forth in the case reported, they should be amended. Laborious termination procedures will prolong an internal dispute to the detriment of everyone. Fair and reasonable severance, even overly generous severance, is better than laborious termination processes. Laborious termination procedures turn the process into a popularity contest based on a prolonged internal political campaign.