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Accusations of Defamation

Statements concerning the discipline of members cannot be defamatory unless made with malice.

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a "qualified privilege," meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

* A Kentucky court ruled that two dismissed church members could not sue the church and board of deacons for defamation as a result of statements made about them in the course of a disciplinary proceeding, since such statements were protected by a "qualified privilege." A church established a "disciplinary committee" comprised of the deacons and senior pastor to address disciplinary matters involving members. If the disciplinary committee was unable to resolve an issue, the matter was referred to the congregation. The congregation could either admonish the offender or strip the offender of church membership.

A group of church members formed a "concerned members" group after a female member alleged that she had an extramarital affair with the pastor. The group wrote letters to the disciplinary committee demanding action, held meetings, and sent letters to members of the church. The disciplinary committee called a membership meeting to address the pastor's alleged affair, and to recommend that the congregation terminate the membership of two members of the "concerned members" group. The disciplinary committee claimed that these two members spearheaded the "concerned members" group; encouraged the woman involved in the affair with the pastor to expose the relationship; and sent unauthorized mailings to church members. At the membership meeting, the deacons also made allegations of financial impropriety against the two members. The membership voted to expel the two members. In addition to holding the congregational meeting, the disciplinary committee sent out a letter to every person on the church's mailing list containing the allegations made against the two members in the meeting.

The two dismissed members sued the church, the senior pastor, and the deacons, for defamation. A trial court dismissed the lawsuit, and the dismissed members appealed.

The appeals court began its opinion by noting that "issues of faith, internal organization, and church discipline are governed by ecclesiastical rule, custom, and law, and civil courts generally have no role in deciding such ecclesiastical questions." The court also ruled that the "qualified privilege" that applies to statements made in the context of church discipline was recognized under Kentucky law. It quoted from an earlier Kentucky case: "Words spoken or written in the regular course of church discipline, or before a tribunal of a religious society, to or of members of the church or society, are as among the members themselves privileged communications, and are not actionable without express malice …. The courts appear to agree that in the absence of malice, members may discuss the character of their pastor, communicate rumors of misconduct to each other, and prefer charges whenever there appears to be any foundation therefor."

The two dismissed members insisted that the oral and written statements concerning them were not privileged because they did not involve any church doctrine. The court disagreed: "This case involves statements made by the church's disciplinary committee in the course of a church disciplinary matter. Specifically, this controversy requires the interpretation of the Discipline section of the church's bylaws. Therefore, this controversy rests upon the interpretation of ecclesiastical matters, and thus the statements are privileged communications if made in the absence of express malice."

The court noted that the qualified privilege does not confer absolute protection for statements made in the course of disciplinary matters. Rather, it protects statements only if they are not made with "malice." In this context, malice means actual knowledge that a statement was false, or a "reckless disregard" regarding its truth or falsity. The two dismissed members asserted that the statements made by the disciplinary committee were malicious since they were designed to "send a warning of silence to other members of the church who were questioning the actions of the pastor." The court concluded that the dismissed members "presented no evidence, apart from conclusory allegations based on suspicion and conjecture, indicating that the defendants were motivated by malice."

Application. Many states recognize the qualified privilege defense to defamation. As this court noted, this defense applies to statements concerning the discipline of members. The court applied the defense to statements made by the disciplinary committee in the membership meeting as well as in letters sent to active voting members. According to the qualified privilege, statements concerning the discipline of members cannot be defamatory unless made with malice. This is a very difficult standard to prove, which means that communications addressing such matters generally will be defamatory only in exceptional cases. Note that several courts have restricted the qualified privilege to statements made to members, and that the privilege is lost if statements are made in a meeting or mailing to persons who are not members in good standing. So, to ensure the maximum application of the qualified privilege, church leaders should take steps to ensure that any statements concerning the discipline of a member are directed only to members, either in a membership meeting or in letters. If statements are communicated via letter, the letters should be addressed to active voting members on the church's official membership roll; the envelope and letter should include the words "privileged and confidential"; and the letter should include a warning that the contents are to be read only by the member to whom it is addressed, and are not to be shared by the member with any non-member. Cargill v. Greater Salem Baptist, 2006 WL 1950663 (Ky. App. 2006).

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  • May 1, 2007