Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are "published" (that is, communicated to other persons); and (4) that injure the other person's reputation.
Key point 4-02.1. Ministers may be liable for making defamatory statements if a civil court can resolve the dispute without any inquiry into church doctrine or polity.
A Tennessee court ruled that a pastor had not defamed a former church member by sending an email to members of the congregation explaining the church's response to a recent lawsuit naming the church as a defendant. A former church member (the "plaintiff") brought several lawsuits against his former pastor and church in which he alleged that the church and its agents injured him in furtherance of actions to fraudulently conceal child sexual abuse by one of its members. In an attempt to apprise members of the church's position, the pastor wrote a letter to the congregation that was published in the church's email newsletter. The email stated as follows:
Dear Brothers and Sisters,
I write to inform you that a former member [the plaintiff] has filed a lawsuit against our church, seeking damages and making a number of serious, but false allegations. You may read something in the papers tomorrow or soon thereafter about this. He has also sued [regional and national denominational agencies with which the church is affiliated].
The former member has made numerous complaints about our church for the last ten or eleven years. Our best efforts to resolve these matters proved unsuccessful. We are saddened that he has taken this step but will cooperate fully with authorities in the coming days. We will also keep you well informed as developments arise. Please keep the leadership of the church in your prayers, in particular the committee that will be handling this. Please contact any of these men, or any of the pastors if you have questions. Thank you for your prayers!
Warmly, in Christ,
The plaintiff's most recent lawsuit named the plaintiff's former pastor and church, and regional and national denominational agencies, as defendants. The lawsuit claimed that the defendants were liable on the basis of negligence, negligent and intentional infliction of emotional distress, false light invasion of privacy, and defamation. He sought $35 million in damages. The trial court dismissed all of the defendants except the pastor, and allowed plaintiff's defamation claim against the pastor (based on the email sent to church members) to proceed.
The court noted that to successfully pursue a defamation claim a plaintiff must prove the following: "(1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement." The court stressed that for a communication to be defamatory "it must constitute a serious threat to the plaintiff's reputation. [It] does not occur simply because the subject of a publication finds the publication annoying, offensive or embarrassing. The words must reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule. They must carry with them an element of disgrace."
Further, because a defamatory statement must be "factually false in order to be actionable, comments upon or characterizations of published facts are not in themselves actionable." A writer's comments upon true and nondefamatory published facts are not actionable, even though [the comments] are stated in strong or abusive terms. The writer's opinions have constitutional protection under the First Amendment."
The court turned to the pastor's email that the plaintiff claimed was defamatory. According to the plaintiff, the statements in the email "meant, were intended to mean, and were understood to mean that everything stated in the lawsuit was a lie, that he has been filing multiple lawsuits for ten or eleven years which are predicated on lies, that he is a liar, that he is fundamentally dishonest, and that he has been dishonest for at least ten or eleven years."
The court noted that while the plaintiff "may have understood the email in this way, we disagree that the email could reasonably be construed as defamatory." It concluded:
Most of the statements in the email are factually true. The email focuses upon the pastor's statements that the lawsuit makes "a number of serious, but false allegations," and that the plaintiff "has made numerous complaints about our church for the last ten or eleven years." The latter statement is a factual one, and the former statement is a statement of opinion, denying the allegations of the lawsuit.
We do not find that the words of the email can reasonably be construable as holding the plaintiff up to public hatred, contempt, or ridicule. Rather, they are, at most, annoying, offensive, or embarrassing. [The pastor] was informing the members of his congregation of a lawsuit against him and the church. He gave his opinion that the allegations in the lawsuit were false, just as he would deny them in an answer filed in court. We hold, as a matter of law, that the email is not capable of conveying a defamatory meaning. Thus, the trial court erred in failing to dismiss this count of the complaint.
What This Means For Churches:
This case illustrates the importance of ensuring that all statements communicated to church members in a letter, email, or other means of communication be verifiably factual, especially when addressing matters that some present or former members may find controversial, hurtful, or accusatory. In the words of the old adage, "truth is a defense to defamation."
Note, however, that while truthful communications cannot be defamatory, they may expose a church to a form of invasion of privacy known as "public disclosure of private facts." Those who give publicity to the private life of another are subject to liability for invasion of privacy if the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.
The key elements of this form of invasion of privacy are (1) publicity, (2) of a highly objectionable kind, (3) given to private facts about another. Publicity is defined as a communication to the public at large, or to so many persons that the matter is substantially certain to become one of public knowledge. It is not an invasion of privacy to communicate a fact concerning another's private life to a single person. But a statement made to a small group, or an audience such as a church congregation, does constitute "publicity."
The facts that are publicly disclosed must be private. There is no liability if one merely repeats something that is a matter of public record or has already been publicly disclosed. Thus, a minister who makes reference in a sermon to the prior marriage or prior criminal acts of a particular church member has not invaded the member's privacy, if such facts are matters of public record.
The matter that is communicated must be such that a reasonable person would feel justified in feeling seriously aggrieved by its dissemination.
This type of invasion of privacy is perhaps the most significant for ministers, since ministers often are apprised of private facts about members of their congregations, and they have innumerable opportunities to divulge such information. Ministers must exercise caution in divulging private facts about members of their congregations, even when the communication is positive in nature and contains information that is factually true (and so would not be defamatory). Davis v. Covenant Presbyterian Church, 2015 WL 5766685 (Tenn. App. 2015).
* See also "Employment practices," Presbyterian Church, 476 S.W.3d 612 (Tex. App. 2015). in the Recent Developments section of this newsletter.