Defamation

Legal Developments

Colorado Pastor’s Defamation Claim Falls Short

A Colorado pastor could not prove a former member knew his derogatory statements about her were false when he made them.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-02.02 Ministers are considered “public figures” and as a result they cannot be defamed unless the person making an otherwise defamatory remark did so with malice. In this context, malice means that the person making the defamatory remark either had actual knowledge that it was false or made it with a reckless disregard as to its truth or falsity.

A Colorado federal court dismissed a pastor’s claim that she had been defamed by a church member who made numerous false and derogatory statements about her on social media.

A woman (the “pastor”) has been the pastor of a church since its founding in 1982. In recent years, a church member (the “defendant”) became disenchanted with the pastor’s leadership and doctrinal teachings.

In 2017, the defendant left the church and, soon after, allegedly started posting “defamatory, false, and slanderous statements” about the pastor on various social media accounts. Posts included the following accusations:
  • The pastor knew that her two sons were guilty of immoral contact, including sexual abuse, but refused to act and “covered it up.”
  • The pastor “is the ringleader herself, the wicked witch of the West.”
  • The defendant referred to the church’s parishioners as a “crazy bunch of people” who were “brainwashed.”
  • The defendant posted a two-hour video on Facebook, using his personal Facebook account, where he made various statements about the pastor, including accusations that she required parishioners to obtain her “permission” before making purchases; that she was “spreading lies;” that she told the defendant’s parents to “put him out” on the street at age sixteen; and that she threatened to remove parishioners who did not “pledge” money to the church. He also referred to the church as a “cult,” and characterized its members as “being under bondage.” The defendant later posted this “same exact” video to YouTube.
  • The defendant made social media “postings” about alleged “abuse” within the church.
  • The defendant posted an image on Facebook depicting a photograph of the pastor next to a photograph of “the notorious Jim Jones,” a man reportedly “responsible for the murder/suicide of 918 individuals including 304 children.” The pastor claimed that the defendant posted the image “with malice,” in an attempt “to draw a clear analogy between the two individuals depicted.”
  • On a different occasion, the defendant posted an “email” in which he stated that the pastor engaged in “fraud,” and “received funds” totaling “5 million dollars.”

The pastor later sued the defendant in a federal district court in Colorado. The pastor claimed that the defendant was liable on the following grounds: defamation and intentional infliction of emotional distress.

Defamation

As to her first claim, the pastor alleged that the defendant published numerous “false” and “defamatory” statements about her on the internet, including: (1) that the church is a “cult;” (2) that there was “abuse” within the church; (3) that the pastor engaged in “fraud,” received funds totaling $5 million, and allowed her “corrupt” sons to participate in the church; and (4) that the pastor is a “witch;” and that one of her sons is “almost a sex offender.” In addition, the pastor alleged that the defendant further defamed her when he published a photograph of her next to a photograph of Jim Jones.

The court noted that defamation is “a communication that holds an individual up to contempt or ridicule thereby causing him to incur injury or damage.”

The required elements of a defamation claim are: (1) a defamatory statement concerning another; (2) that is false; (3) communicated to a third party; (4) causes injury to reputation; and, if the victim is a “public figure,” clear and convincing evidence of malice.

In this context, malice means statements were “uttered with knowledge of their falsity or in reckless disregard of their truth.” Malice can be shown if the defendant “entertained serious doubts as to the truth of the statement or acted with a high degree of awareness of its probable falsity.” Further, “a defendant who willfully chooses not to learn the truth prior to publishing an allegedly false statement can be found to have acted with malice.”

The pastor claimed that the defendant’s malice could be inferred from the fact that the statements he made about the pastor were all “demonstrably false.”

The court disagreed, noting that the pastor “did not direct the court to sufficient evidence that defendant knew, or strongly suspected, that his statements concerning [the pastor] were false.” The court also noted that, were the pastor treated as a private figure for purposes of the lawsuit, the pastor still failed to show evidence that the defendant “negligently failed to ascertain the truth of his statements before publishing them.”

Intentional infliction of emotional distress

The pastor’s second claim was for intentional infliction of emotional distress. The court noted that to prevail on this claim the pastor needed to demonstrate: (1) the defendant engaged in extreme and outrageous conduct; (2) the defendant engaged in such conduct recklessly or with the intent of causing the pastor severe emotional distress; and (3) the defendant’s conduct caused the pastor to suffer severe emotional distress. The pastor claimed that she had “suffered emotional distress and trauma” due to the defendant’s publication of the many bitter and abusive statements concerning her and her family.

But the court dismissed this claim, noting that the pastor “did not direct the court to sufficient evidence to demonstrate that the defendant acted recklessly, or with the intent to cause emotional distress.”

What this means for pastors and churches

Pastors and other church leaders sometimes experience the wrath of a disgruntled member who uses social media to communicate false and derogatory information to the public. Such events can be extremely painful, causing victims to ask what can be done.

Here are some tips to keep in mind:

Defamation is an injury to reputation.

To establish a claim for defamation, a victim must prove the following four elements: (1) a statement (whether verbal (slander) or in writing (libel)), (2) concerning another, (3) that is false, and that (4) injures reputation.

Since a landmark US Supreme Court ruling in 1964 (New York Times v. Sullivan), it has become much more difficult for “public figures” to prove defamation. The Court’s reason: when people voluntarily thrust themselves into the public eye, they must expect to be the target of criticism.

Thus, in addition to the other four elements of defamation summarized above, public figures must prove that defamatory statements were made with malice. Malice must be shown by demonstrating statements were made with knowledge of their falsity or with reckless disregard of their truth or falsity. Malice is difficult to establish, meaning that the success rate of defamation claims involving public figures is low.

Although few courts have addressed the question, it is likely courts will deem ministers to be public figures. As a result, ministers will be required to show more than damage to their reputations to establish defamation. They also must demonstrate that the allegedly defamatory remark was made with malice. That is a much harder path for prevailing in a civil lawsuit they file against persons who defame them.

Of note, this specific case shows the difficulty with proving malice when a pastor is considered a public figure. It also shows a burden of proof still must be met, even if a pastor is considered a private figure (although it is more likely a pastor will be considered a public figure).
  • At least two justices of the United States Supreme Court (Justice Clarence Thomas and Justice Neil Gorsuch) have called for a re-examination—and possible reversal of—New York Times v. Sullivan. Such a development would make it much easier for ministers, and other public figures, to maintain defamation lawsuits despite their statuses as public figures.
  • Even if a defamation claim is not an option, there are other grounds ministers can pursue against persons making unfounded and derogatory comments about them on social media. These include intentional infliction of emotional distress (as this case illustrates, also difficult to prove), and a variant of “invasion of privacy” consisting of public disclosure of private fact.
  • Many courts have ruled that the “ministerial exception”—which generally prohibits the civil courts from resolving internal employment disputes between churches and clergy—applies to defamation claims brought by ministers against their current or former churches. But other courts have reached the opposite conclusion and have said that such claims can be resolved so long as this can be done without inquiries into church doctrine and polity.

Banks v. Jackson, 2022 WL 1451904. (Colo. 2022).
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Legal Developments

A Church’s Insurer Was Not Obligated to Provide a Legal Defense for Congregant Facing a Lawsuit

Defamatory remarks made by a lay member on social media were not authorized by the church and therefore not covered by its insurance policy.

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-06.02. Officers and directors must be legally authorized to act on behalf of their church. Legal authority can be express, implied, inherent, or apparent. In addition, a church can ratify the unauthorized actions of its officers or directors, but this is not required.

A federal court in California ruled that a church’s insurance policy was not obligated to provide a legal defense to a lay member of the church’s council. The member was sued for defamatory remarks he posted on the website Yelp regarding the quality of services provided by a contractor to the church.

Background

In 2018, a company installed solar panels at a church. Dissatisfied with the purported lack of savings in the church’s energy bills promised by the company, a church member (the “defendant”) began investigating the church’s energy usage.

When the company was not sufficiently responsive to the defendant’s inquiries, the defendant began posting critical reviews of it on social media. In particular, the defendant posted a one-star review on the website Yelp.com, stating the company’s products caused the church’s energy bills to increase.

After the defendant refused to remove the posts, the company sued the defendant in state court for defamation and trade libel. The defendant notified the church’s insurance company of the lawsuit. The insurance company initially agreed to provide the defendant with a legal defense, but later determined that no coverage existed. The insurer asked a court to issue a “declaratory judgment” that it had no duty to defend or indemnify.

Explaining the duty to defend

The court noted:

“[A]n insurer must defend its insured against claims that create a potential for indemnity under the policy.” . . . “[W]here there is no potential for recovery on a covered claim, there is no duty to defend.” . . . For instance, “an insurer does not owe a duty to defend if it conclusively demonstrates that a policy exclusion applies to preclude coverage.”

In this case, the insurer argued that there was no duty to defend because the defendant was not even “covered by the church’s insurance policy.” In particular, the insurer pointed to the policy language, which defined “covered person” to include the church and its leaders, employees, appointed persons, and volunteers (or the spouses of such persons) “in relation to any leadership activity undertaken on [the church’s] behalf.”

Defining “leadership activity”

“Leadership activity” was defined by the policy to mean “the decision-making acts of [the church’s] leaders regarding the operation of your organization, and includes related and authorized activity undertaken by volunteer committee members and by other covered persons for the purpose of implementing such decisions.”

The insurer noted that “[t]here are no allegations in [the underlying] complaint that defendant was acting on behalf of the Church or within the course and scope of defendant’s agency with the Church.”

The insurer further noted:

Defendant was not a “covered person” because his allegedly defamatory “social media posts were not authorized by the Church, made for the benefit or on behalf of the Church, made within the course and scope of his duties as a member of the Church Council, or made in relation to the Church’s religious or not-for-profit operations.”

The church provided an affidavit from a former member and former president of the church council, stating that “[c]ouncil members are not expected or authorized to act independently on any matter.”

The defendant acted without direction from leadership

The former church council president testified:

[A]fter the solar panels were installed, Defendant began incessantly sending [the former church council president] and other church leadership . . . “paperwork regarding his alleged investigation into the operation of the installed solar panels.” This culminated in a “report” regarding the operation of the solar panels, which Defendant had created on his own and without direction of church leadership.

According to the former church council president, no one in leadership “authorized defendant to take any action related to his report.”

In December 2018, the defendant began contacting the company and making social media posts “without the knowledge or authorization” of anyone in church leadership.

According to the former church council president, the defendant’s role as member of the church council did not authorize him to make social media posts on behalf of the church and his duties in that role did not relate to “the Church’s contracts and relationships with third party contractors.”

Once the former church council president and other leaders became aware of the defendant’s actions, church leaders wrote him twice to advise him that his activities “were done without the permission of the Church.”

The insurer also noted that the defendant himself stated in his social media posts that he “felt a big pressure from the Church leaders to remove” his allegedly defamatory Yelp review.

Court: The defendant is not a “covered person”

The court concluded:

In sum, [the insurer] carries its burden . . . to show that Defendant’s conduct of making allegedly defamatory social media posts was undertaken on his own and without authorization of any church leader. Consequently, at least in regard to the actions giving rise to the underlying litigation, Defendant is not a “covered person” for purposes of the church’s insurance policy . . . and thus Defendant falls outside the scope of coverage.

What this means for churches

This case demonstrates the potential risk churches face when posting critical comments about businesses and organizations in the community. However, individuals who post critical messages on Yelp or other social media sites, even if in the name of the church, will not create liability for the church if they acted alone and outside the scope of any “agency” relationship with the church.

Consider these three important points from this case.

First, the case illustrates a basic principle of corporate law that board members have no authority to act individually on behalf of their corporation. They may only act collectively as a board. This is an important point, for it demonstrates the potential personal liability of board members who seek to bind their corporation by their unilateral and unauthorized acts.

Second, the court concluded that there was no evidence that the defendant was acting on behalf of the church “or within the course and scope of [his] agency with the Church” when he made his unauthorized Yelp reviews purportedly on behalf of the church.

This is an important point. It indicates that conduct by church employees and volunteers outside of the scope of their ordinary duties cannot be ascribed to the church on the basis of agency.

Third, the defendant was sued by the company for trade libel because of the critical reviews he posted on Yelp. Trade libel is an intentional disparagement of the quality of services or product of a business that results in pecuniary (financially related) damage to the business.

The church’s insurance policy did not provide the defendant with a defense or indemnification because he acted alone when posting his negative Yelp comments without authorization or approval from the church.

According to this court, individuals who post comments on social media without authorization from the church are not acting within the scope of their agency, and so it is the poster rather than the church that is exposed to liability for trade libel.

Insurance Company v. Vinkov 2021 WL 3553733 (C.D. Cal. 2021)

Legal Developments

Defamation Claim Dismissed Due to Church’s “Qualified Privilege”

Case illustrates a protection church leaders may receive when communicating negative information with members—but caution must be exercised.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-02.01. Ministers may be liable for making defamatory statements if a civil court can resolve the dispute without any inquiry into church doctrine or polity.

Key point 4-02.03. Several 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.

The Iowa Supreme Court ruled that the “qualified privilege” insulated a church from liability for defamation based on email communications by a pastor to some church members in which he falsely claimed that a church member was guilty of sexually abusing the member’s three-year-old daughter.

Background

An adult male (the “plaintiff”) is a former member of defendant church. He began attending the church in 2005 and became a full member in 2007. From 2006 to 2015, he served as a volunteer leader in the church’s high school ministry.

Through his involvement with the church, he met a woman who was also an active member. The couple was married a few years later.

The couple regularly participated in a church small group where group members discussed their lives and weekly Scripture readings. The couple’s small group was attended by ten couples, including a pastor who led their small group. The church practiced what it describes as “Biblical Soul Care,” which was further defined as “speaking the truth in love in your circle of influence.” Small groups are a part of this. The plaintiff testified that the couple’s small group operated as follows:

Generally, we would get together and meet, talk, socialize for a bit of time, maybe eat some food, and then we would gather in a room and either watch a video, do a study from the Bible, and then after a time, then the men would break out and go to our own area and the women would do the same.

Essentially the congregants of the church provided counsel to one another using a “counseling in community” approach. According to the plaintiff, there was no formal confidentiality agreement, but there was discussion “[t]hat it’s a safe place to share and what’s said there stays there.”

The pastor and his wife became close friends with the plaintiff, the plaintiff’s wife, and a third couple. The pastor invited the two other couples to join him and his wife in a new regular group consisting of just the three couples. The new group met on a weekly basis. They had the same verbal commitment that “what’s said there stays there.”

The new group met over 20 times as a group of six, without men and women breaking off separately. The new group practiced “Biblical Soul Care,” but more informally. The three couples would go around the room and each couple would give an update on how things were going in their marriage and in their family. In these discussions, the plaintiff frankly discussed “all my sexual sin.” He also discussed problems with sexual intimacy.

In April 2015, the plaintiff’s wife called the pastor and reported that her three-year-old daughter told her that the plaintiff had touched her under her underwear. The wife immediately sought a temporary protective order against her husband. The court granted an order the next day.

The wife sent emails to staff members at the church about the sex abuse. She also discussed the allegations with members of the congregation and notified the police and the state Department of Human Services (DHS).

Pursuant to church policy, the following day a “Security Alert” flyer was posted in the church with a picture of the plaintiff and stating: “The court finds that the Protected Party [the wife] and the children . . . are in danger of physical harm from[the plaintiff] (husband & father).” It explained that the plaintiff “cannot be on the premises at the same time as [his wife and children]. He cannot be in contact or pick up his children from church.”

On May 3, 2015, the pastor sent an email to the members of the ten-couple small group. This email read, in part:

Well—it is with a very heavy heart that I am needing to write this email to all of you. A[s] our former small group and partners in ministry I thought it best to do it this way so that you can discreetly pass this information on to others who you think need to know. Please use much discretion. . . . [I]n the past 3 months things got to a point that intensive counseling was absolutely necessary [for the plaintiff and his wife] and we were to begin it a week from today. Unfortunately, we had to pull the plug out of fear of authorities getting involved due to the fact that [the counselor] is a mandatory reporter of child abuse. . . . We believe not going was best [because] we did not believe at that time the kids were in immediate danger and since the information came out to me in an informal setting of a home I was not a mandatory reporter. . . .

As it stands there is currently an order of protection against [the plaintiff] until at least Wed[nesday] when there will be a hearing. This came about from events that transpired last week . . . that forced [the plaintiff’s wife] to take action and get authorities involved (DHS and police)—which meant filing for the protection order and removing him from the house. . . . I trust you can connect the dots and realize that what we are talking about are horrific allegations and are tough to even discuss openly. . . .

[T]he allegations are serious enough that I would counsel you not have him stay in any of your homes if he asks to do so especially if you have children.

Following an investigation, DHS did not conclude that the child sexual abuse allegations were founded. In September 2015, the plaintiff’s wife filed a second report of child sexual abuse, which DHS likewise investigated and was unable to substantiate. In January 2016, she filed a third report of child sexual abuse, which DHS investigated and was unable to substantiate.

Law enforcement also declined to pursue criminal charges against the plaintiff. In addition, on September 14, 2016, the couple’s divorce was finalized with the court awarding physical care of the children to the plaintiff. The court presiding over the divorce proceeding determined that the plaintiff’s wife lacked credibility.

On April 17, 2017, the plaintiff filed suit against the church and its pastor (the “defendants”) on the following grounds: (1) breach of a fiduciary duty of confidentiality; (2) invasion of privacy based on placing him in a false light and public disclosure of private facts; and (3) defamation.

The trial court dismissed the breach of confidentiality and defamation claims. With respect to the duty of confidentiality, the court ruled that the pastor’s communications were subject to a “qualified privilege” because they were “made in furtherance of the church congregation’s common interest.”

The Iowa Supreme Court addressed the plaintiff’s claims

The plaintiff appealed to the Iowa Supreme Court.

The duty of confidentiality

On appeal, the plaintiff claimed that the pastor breached a duty of confidentiality—a neutral duty that does not require consideration of religious belief or practice.

The court was not persuaded that the alleged duty “can be neatly separated from [the church’s] teachings and practices.” It concluded that “[t]he question . . . boils down to whether the confidentiality duty can be defined by some neutral source or requires reference to church doctrine and practices.”

The plaintiff pointed to three sources for the confidentiality duty: (1) the clergy-penitent privilege, which the court said “clearly does not apply” because the pastor’s statements occurred in a group setting and therefore were not made in confidence as required for the privilege to apply; (2) the second source was the verbal understanding that what was said in the small groups would stay in the groups; and (3) the third source was a provision in the church bylaws that members would “neither gossip nor listen to gossip concerning any member.”

In effect, the plaintiff claimed that the second and third commitments imposed a legal duty on the pastor as a group leader not to share anything about the plaintiff with the members of the groups or with church staff.

In rejecting the plaintiff’s argument, the court observed:

[T]he second and third commitments were far from specific. We see no way for a court to interpret the scope of these vague promises, and how they apply to [the pastor’s] internal communications with group members and staff, without immersing itself in [the church’s] customs, practices, and doctrine.

In short, deciding liability here would not be a simple task of applying a well-defined secular standard but would involve weighing of both marital counseling standards and the norms by which the church is governed. . . .

[W]e believe “[t]he means by which [the church official] chose to counsel and advise the congregation is outside the purview of the government.”

Because determining whether [the pastor], and derivatively [the church], breached a fiduciary duty of confidentiality to [the plaintiff] arising out of group discipleship discussions would require our courts to interpret [church] doctrine and practices, such a claim cannot proceed in our courts.

Defamation

The plaintiff also claimed that the pastor’s emails “expressly or impliedly stated that he had abused his children.” Those statements were false and so, in the plaintiff’s view, he was entitled to a jury trial on defamation.

The church defendants argued that a “qualified privilege” applied that protected them from liability. The court referred to a past defamation claim brought by a church member against the church and church officials. Kliebenstein v. Iowa Conference of United Methodist Church, 663 N.W.2d 404 (Iowa 2003). In that case, church officials sent out a letter referring to the church member as having “the spirit of Satan.” The court in the Kliebenstein case concluded that the defamation claim would not “enjoy viability had the matter been divulged solely to the members of the church.” It continued:

[T]he common interest of members of religious associations is such as to afford the protection of qualified privilege to communications between them in furtherance of their common purpose or interest. Thus, communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.

The qualified privilege means that otherwise defamatory statements are not defamation unless made with malice. Malice means a knowledge that the statements were false or made with a reckless disregard as to their truthfulness.

But the court in Kliebenstein concluded that the qualified privilege was not available because “publication of the letter was not limited to a ‘religious community or body’”; rather, the letter had been “mailed not only to members of the congregation but also to other persons living in the . . . community.”

In the present case, the plaintiff opposed application of the qualified privilege on the ground that the pastor sent the May 3 email to a nonmember of the church. One of the recipients of that email had ceased to be a member of the church. In rejecting the plaintiff’s argument, the court concluded:

“Qualified privilege may be lost, however, if the speaker abuses the privilege by speaking with actual malice or excessively publishing the statement ‘beyond the group interest.’ . . . In the clergy context, a statement loses its privilege if made to individuals outside the congregation.” Does it make a difference that [the pastor] sent his May 3 email to [a former church member]?

The defendants say no, and the trial court agreed. [The recipient] was no longer a member of [the church], but he was not a stranger. [The pastor] attested there was no requirement that someone be a member of the church in order to participate in small groups. [The email recipient] had remained involved with the discipleship group for [the plaintiff]. He had been checking in by email with [the plaintiff] monthly for continued discipleship with the men in the Small Group.

Moreover, [his] responses to the May 3 email show that he had a common interest in the matter. In his first email [he] said, “I’m heart-broken for [the plaintiff’s family].” In a later communication, he added that [the plaintiff] had been contacting him. He indicated that his spouse and [the plaintiff’s former wife] were close, and he asked whether he should be concerned about the safety of his girls since they spent time with the plaintiff’s children.

The court concluded:

Under these circumstances, we find as a matter of law that [the former member] retained a common interest in the subject matter of [the pastor’s email] communications. The qualified privilege for communications by religious organizations is essentially a variant of the common-interest privilege. . . . Again, no one other than Small Group members and church staff received the pastor’s emails. . . .

In sum, [the pastor’s] emails, whatever their flaws, were sent by a religious leader exclusively to staff and members of that religious community, plus one person who retained genuine ties to that religious community. The emails were in furtherance of their common purposes. We conclude that a qualified privilege applies. Given the lack of evidence of malice, summary judgment on the defamation claim was warranted.

What this means for churches

Church leaders should be familiar with this case for the following reasons.

First, pastors should be careful when disseminating damaging personal information concerning a member to other members, since this may constitute defamation. If in doubt about the propriety of doing so, seek legal counsel.

Second, this case illustrates the concept of qualified privilege. According to this widely recognized legal principle, statements made by church leaders to members regarding matters of common interest generally cannot be defamatory unless made with “malice.”

Malice in this context means that the person making the statements knew they were false or made them with a reckless disregard as to their truthfulness.

Malice is very difficult to prove, and this means that churches have significant protection when communicating with members regarding matters of common interest. But the protection is not absolute and does not extend to malicious statements as defined above. It is critical to note that the privilege only applies to communications to or among church members, the key point being that nonmembers do not have a legitimate interest in knowing matters of common interest among members, and so any disclosure to them would transcend any legitimate need to know.

Church leaders wanting to preserve the qualified privilege defense when communicating matters of common interest to the congregation should take steps to ensure that their statements are directed exclusively to members. Be sure to consult with legal counsel before making any communication that is potentially damaging to any one or more persons.

Common examples of the application of the qualified privilege would include congregational meetings that are called to inform members about the reasons for the discipline of a church staff member. Sharing negative and damaging information about a current or former employee at such a meeting can be reduced by ensuring that only members are in attendance.

959 N.W.2d 680, 2021 Iowa Sup. LEXIS 67 (2021 WL 2021643

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Legal Developments

A Fired Pastor’s Defamation Suit Is Dismissed

Appeals court said the lawsuit was barred due to the “ecclesiastical abstention doctrine.”

Richard R. Hammar, Attorney, CPA
Bio

Key point 2-04.01. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

A Tennessee appeals court ruled that a dismissed pastor’s defamation lawsuit against his former church was barred by the “ecclesiastical abstention doctrine.”

Background

A church’s board of elders called an emergency meeting to address inappropriate Facebook communications the pastor had with a female member of the congregation.

At this meeting the pastor’s resignation was requested. The pastor refused to tender his resignation, and thereafter he received a termination letter from the church that he refused to honor. As a result, a second termination letter was delivered to him. The pastor continued to defy the elders’ efforts to remove him from his position.

Pastor: church’s action not protected by the ecclesiastical abstention doctrine

The pastor sued his church, claiming it defamed him based on the following statements:

  • Communications made by church elders to a sound booth operator at the church, among others, about an improper relationship between the pastor and the sound booth operator.
  • Email and correspondence from the church’s administrative assistant informing the congregation of the pastor’s termination. The church’s elders had authorized sending the email to the church’s email distribution list.

The pastor insisted that any communications concerning his alleged inappropriate relationship with the sound booth operator had no connection to any ecclesiastical action or decision and, therefore, were not protected by the ecclesiastical abstention doctrine.

He also claimed that sending emails to the church’s email distribution list informing the congregation of the pastor’s termination did not trigger the ecclesiastical abstention doctrine, and therefore he could maintain his defamation lawsuit against the church.

The defamation claim was dismissed by the trial court on the basis of the ecclesiastical abstention doctrine. The pastor appealed this ruling to a state appeals court.

Appeals court: the trial court “was not in error”

The appeals court noted:

The ecclesiastical abstention doctrine, also commonly known as the church autonomy doctrine, precludes civil courts in this country from adjudicating “questions of discipline, or of faith, or ecclesiastical rule, custom, or law” or church polity, or the internal governance of religious organizations. . . .

The concern undergirding the ecclesiastical abstention bar is that “[i]f secular courts were to become embroiled in ecclesiastical controversies within a religious body, those courts would be allowed, or required, to substitute their judgment for that of church governing bodies on issues of doctrine, belief, or practice.”

Regarding defamation claims specifically, the court noted that “‘[a] number of courts have held that defamation claims arising out of minister employment or discipline disputes are outside the subject matter jurisdiction of the courts because all matters touching the relationship between pastor and church are of ecclesiastical concern and not subject to court review.’”

The court further noted:

“[T]he protection afforded by the First Amendment to church disciplinary proceedings applies to statements made after the church’s decision if the statements or actions are merely implementation of, still part of, inextricably related to, or a consequence of the decision.” . . . [F]or instance, “[a] church’s communication of the fact and reason for excommunication are protected from judicial inquiry and review . . . is as much within the rights protected by ecclesiastical abstention as is the church’s right to take such actions, even though it may carry some kind of negative implication about the expelled member.”

The court conceded that while “the bar posed by the ecclesiastical abstention doctrine is no doubt generally weakened with respect to statements made outside church membership, the ultimate issue is still whether the alleged defamations arise from or are inextricably linked to the protected religious decision.”

In rejecting the pastor’s defamation claims, the court concluded:

In the final calculus, “[c]onduct that is inextricably tied to the disciplinary process of a religious organization is subject to the First Amendment’s protection just as the disciplinary decision itself.” . . . Indeed, reviewing all of the asserted defamations in this case, they are, in our view, “too close to the peculiarly religious aspects of the transactions to be segregated and treated separately—as simple civil wrongs. . . . We, therefore, conclude that the trial court’s reliance on the ecclesiastical abstention doctrine was not in error. Accordingly, we affirm its summary dismissal of the pastor’s [defamation] claims.

What this means for churches

This case illustrates an important point. The ecclesiastical abstention doctrine precludes civil courts from adjudicating challenges by dismissed clergy over the legality of their dismissal, but it also bars the resolution of ancillary claims, such as defamation, breach of contract, and emotional distress, that result from the dismissal. Maize v. Friendship Church, 2020 WL 6130918 (Tenn. App. 2020)

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Legal Developments

First Amendment Bars Court from Resolving Dismissed Member’s Lawsuit

The ecclesiastical abstention doctrine prevents courts from reviewing disputes concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.”

Richard R. Hammar, Attorney, CPA
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Key point 6-06.4. Church officers and directors can be removed from office in the manner authorized by the church’s governing documents. It is common for church bylaws to give the membership the authority to remove officers and directors who engage in specified misconduct or change their doctrinal position.

A Florida court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a dismissed member’s lawsuit against his former church.

A church member (the “plaintiff”) had served as a church deacon for three years when the pastor and deacon-board chairman called a special meeting to accuse him of heresy. The plaintiff asserted that the pastor and chairman had defamed him by falsely accusing him “of being a Heretical Apostate committing acts against [the] Church, Spiritual Beliefs, Faith and God orally and publicly in the presence of members of [the] Church.”

In further support of his defamation claim, the plaintiff claimed that the pastor and chairman had written an open letter, made available to all members of the church, disparaging the plaintiff’s good name. That letter, signed by the pastor and deacon chairman, told the plaintiff that his membership was terminated. The letter explained that the plaintiff’s public and private “heretical statements” regarding the inerrancy of the Bible and the divinity of Jesus Christ caused the termination. The letter also noted that the church’s action “was required to maintain the integrity of the church’s doctrine, and to protect the church from false teaching.”

The plaintiff sued the pastor, chairman, and board for defamation, and sought $3 million in damages. A trial court dismissed the lawsuit on the basis of the “ecclesiastical abstention” doctrine which generally bars the civil courts from resolving internal church disputes over questions of doctrine or practice.

A state appeals court agreed with the trial court’s ruling:

The ecclesiastical abstention doctrine, also known as the church autonomy doctrine, is based on the Free Exercise Clause of the First Amendment. The doctrine prevents courts from reviewing disputes concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.”

A lawsuit does not, of course, become a theological controversy just because one of the litigants is a church. We therefore must consider “the nature of the dispute and whether it can be decided on neutral principles of secular law without a court intruding upon, interfering with, or deciding church doctrine. . . .” We conclude that resolving any claims in the plaintiff’s . . . complaint would require a court to intrude into church doctrine in violation of the ecclesiastical abstention doctrine. Therefore, the doctrine prevents litigation of this dispute and the lower court lacks jurisdiction to proceed.

What this means for churches

This case is an excellent example of the impact of the ecclesiastical abstention doctrine (sometimes called the “church autonomy” doctrine) on church disputes. Internal church disputes that concern “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them” are beyond the reach of the civil courts, and cannot be revived by appeals to “neutral principles of law.” Springhill Missionary Baptist Church v. Mobley, 251 So.3d 281 (Fla. App. 2018).

Legal Developments

Church Protected by “Qualified Privilege” from Defamation Claims by Minister

Court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,”

Richard R. Hammar, Attorney, CPA
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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.

An Illinois court ruled that statements made in a church disciplinary process involving accusations of sexual misconduct by a minister were protected against claims of defamation by a qualified privilege.

A minister (the “plaintiff”) served as a church’s lead pastor and also as chairperson of a committee responsible for screening candidates for admission to the ministry within his denomination (the “national church”). A woman (the “defendant”) was one of these candidates. The plaintiff claimed that he informed the defendant that she would need additional counseling before her application could proceed. She alleged that when she met with him to discuss her application he made offensive, sexually explicit comments to her. The plaintiff was shocked.

The Book of Discipline prohibits sexual harassment by ministers, stating that sexual harassment “by representatives of the church is a betrayal of a sacred trust, and a sinful abuse of power for which consequences are necessary and appropriate.” The Book of Discipline defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or non-verbal conduct of a sexually offensive nature” that occurs in a workplace setting.

The Book of Discipline also establishes a system for reporting and adjudicating claims of sexual misconduct against members of the clergy. A victim of sexual harassment may report the allegation to his or her local minister. The person receiving this information must then make a written record of the complaint within 48 hours. The accuser then has seven days to submit a written complaint. The complaint must be in writing, sworn under penalty of perjury, and sent via certified mail to the national church’s “Judicial Committee.” The complaint should contain a description of the facts giving rise to the claim.

The Judicial Committee, which acts like a grand jury, serves as the investigative body of the national church. This committee gathers evidence and investigates claims. While performing its role, the Judicial Committee must act confidentially and can discuss the matter only with other individuals responsible for adjudicating the case. Breach of confidentiality “shall be charged and tried pursuant to the relevant provisions” of the Book of Discipline. The Judicial Committee determines whether there is sufficient evidence to support the allegations of sexual misconduct. If the Judicial Committee finds that the allegations are unfounded, the case is dismissed. If the Judicial Committee finds there is sufficient evidence to support the allegation, the matter is referred to the Trial Committee for a hearing. The Trial Committee, which acts as the trier of fact, determines whether the allegations in the complaint are “sustained, unsustained, or neither sustained nor unsustained.” If the Trial Committee determines that the allegations are sustained, the Book of Discipline provides for punishments ranging from a six-month suspension to permanent termination.

Immediately following the incident of harassment, the defendant, pursuant to the procedure spelled out in the Book of Discipline, filed a complaint with her minister, who forwarded it to a regional church officer, who forwarded it to another officer. This officer ordered the Judicial Committee to convene to investigate the matter. The Judicial Committee determined that the defendant’s allegation of harassment was sustained.

The plaintiff sued the defendant, the regional church, and church officers (the “church defendants”) alleging defamation and emotional distress. He claimed that the allegations of sexual misconduct were false, and that repeating them to other ministers brought him into “public disgrace and scandal.”

The church defendants claimed that the plaintiff’s claims were barred by the “ecclesiastical abstention doctrine,” which recognizes the “power and autonomy of religious organizations to govern and discipline their own clergy free from secular court interference.” The answer further asserted that plaintiff, as a minister, was governed by the national church’s Book of Discipline. The church defendants also claimed that the defamation claim had to be dismissed since statements made in the course of internal church disciplinary proceedings are protected by a “qualified privilege,” meaning that they cannot be defamatory unless made maliciously. The defendants argued that the qualified privilege applied since all of the allegedly defamatory communications occurred within the internal disciplinary proceedings of the church. A trial court dismissed the plaintiff’s claims, and he appealed.

The appeals court affirmed the dismissal of the plaintiff’s lawsuit. It began its opinion by noting:

The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in civil court. Indeed, a person must be free to say anything and everything to his church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. . . . Since the only defamatory publication allegedly made . . . was made to the church itself within internal disciplinary proceedings, the absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding precludes the court from exercising jurisdiction in this matter.

The court noted that the plaintiff failed to present evidence that the church defendants published the victim’s statements to anyone outside of the internal disciplinary procedures of the church, and therefore the qualified privilege applied and required the dismissal of the plaintiff’s lawsuit.

The court rejected the plaintiff’s claim that his lawsuit could be resolved using neutral principles of law requiring no interpretation of church doctrine:

Plaintiff argues we can evaluate his claims under neutral principles of law. Essentially, notwithstanding any underlying ecclesiastic matter, plaintiff contends that we can determine (1) whether the church followed its own disciplinary proceedings and (2) whether the alleged statements were defamatory under neutral principles of law. We disagree. Illinois courts will not resolve cases that require interpretation of religious doctrine. Nonetheless, when doctrinal issues are not involved, the court may evaluate the dispute under neutral principles of law. Under the neutral principles of law approach, a court objectively examines pertinent church characteristics, constitutions, bylaws, deeds, state statutes, and other evidence to resolve the matter as it would a secular dispute. Traditionally, the neutral principles of law approach is applied to allocate disputed church property under objective, well-established concepts of trust and property law.

While it is possible that resolution of plaintiff’s claims would not require any interpretation of church’s doctrine, resolving this dispute would involve the secular court interfering with the church’s internal disciplinary proceedings. . . . Irrespective of the fact that a court or jury could apply neutral principles of law . . . to determine whether they were defamatory, those statements were published exclusively within the context of the church’s disciplinary proceedings. Therefore, as previously discussed, this court is bound to step aside and permit the church to consider the veracity of the defendant’s charges of sexual abuse through the church’s process.

What this means for churches

The court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,” meaning that complaints of ministerial misconduct made to church officials for investigation ordinarily will not expose the complainants to civil liability for defamation or emotional distress. However, the court cautioned that there is no absolute privilege to make accusations of ministerial misconduct to persons outside of the church disciplinary process, and as a result, such accusations may expose the complainants to civil liability. 2018 IL App (4th) 170469.

Legal Developments

Pastor’s Age Discrimination Claim Against a Denominational Agency Was Barred by the “Ministerial Exception.”

The “ecclesiastical abstention doctrine” does not necessarily preclude resolution of pastor’s claims of breach of contract, wrongful eviction, and defamation, so long as doing so would not implicate religious doctrine.

Richard R. Hammar, Attorney, CPA
Bio


Key Point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A federal district court for the District of Columbia ruled that a pastor’s age discrimination claim against a denominational agency was barred by the “ministerial exception,” but the court could resolve the pastor’s claims of breach of contract, wrongful eviction, and defamation, so long as doing so would not implicate religious doctrine.

A pastor and his wife organized a church (the “local church”) in 1995. The local church affiliated with a Protestant denomination (the “national church”) and one of its subdivisions (the “regional church”), but retained its organizational, administrative, and pastoral independence. Despite that independence, the local church entered into an agreement with the regional church with the following terms: (1) the regional church agreed to arrange financing to purchase property for the local church’s use; (2) the local church agreed to be responsible for repaying the loan; (3) the regional church held title to the property while the loan was being paid “to protect against the church’s default on the loan”; and (4) when the loan was repaid, the regional church would “relinquish the title to the property to the church free and clear of any encumbrances.” By 2005, the local church, using “the funds of the church membership without any contribution from the regional church,” had fully repaid the loan, but the regional church refused to transfer title to the local church.

In 2011, an officer of the regional church formally appointed the pastor as lead pastor of the local church. Although the pastor insisted that the regional church had no authority to determine who was the church’s pastor, he accepted the appointment and accepted a stipend of $1,500 per month. The regional church discontinued the stipend in 2012.

In 2015, an officer of the regional church informed the pastor that it was time for him to retire because the regional church had “younger people” capable of taking his place and that his last day as pastor would be May 31, 2015. The pastor ignored this ultimatum and continued to assert his authority to act as the church’s pastor. The regional church responded by changing the locks to the church without notifying the pastor, and by informing local law enforcement personnel that the pastor “had made illegal and unauthorized entry onto the properties.” The pastor was warned that he would be subject to arrest if he attempted to enter the property again.

The pastor sued the regional church, asserting the following claims:

  • age discrimination based on the regional church’s attempt to remove the pastor so that a younger pastor could be chosen;
  • breach of contract to pay a monthly stipend of $1,500 after 2012;
  • breach of contract based on the regional church’s failure to convey title to the local church pursuant to the agreement to carry out such a transfer upon the church’s repayment of the loan;
  • wrongful eviction based on the regional church’s changing the locks to the church in order to prevent the pastor from entering the building; and
  • defamation based on the letter the regional church disseminated to law enforcement authorities stating that the pastor had illegally entered onto the property.

The regional church asked the court to dismiss the lawsuit on the ground that it was an internal church matter over which the civil courts have no jurisdiction.

Ecclesiastical abstention and ministerial exception

The ecclesiastical abstention doctrine is based on a “long line of Supreme Court cases that affirm the fundamental right of churches to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” The related ministerial exception “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.” As the United States Supreme Court noted in a unanimous ruling in 2012: “The exception … ensures that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694 (2012).

The court noted that “the Supreme Court has expressed no view on whether the ministerial exception bars claims other than employment discrimination claims,” and it noted that a prior federal appeals court ruling had concluded that the exception “did not bar a breach of contract claim when resolution of such a claim is subject to entirely neutral methods of proof.” Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990).

Age discrimination

The pastor claimed that the regional church discriminated against him on the basis of age because its officer forced him to retire from his position as pastor by telling him that he needed “to retire” because there were “younger people” to take his place. The court noted that the pastor had abandoned this claim on appeal, but even if he had not done so, the ministerial exception would have barred the claim:

His allegation is that the officer “forced him to retire because of his age,” thereby ending his tenure as pastor. The age discrimination claim before the court thus “is an employment discrimination [claim] brought on behalf of a minister, challenging his church’s decision to fire him.” The ministerial exception bars such a claim. That bar is in place because the court’s involvement in assessing the propriety of a pastor’s termination would improperly entangle it in “an internal church decision that affects the faith and mission of the church itself.”

Breach of contract to pay a stipend

The pastor claimed that the regional church’s discontinuation of his monthly $1,500 stipend amounted to a breach of contract. The court noted that in the District of Columbia, the elements of a breach of contract claim are: “(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.”

The regional church argued that the ministerial exception barred this claim, but the court disagreed. The court quoted from the Minker case (see above): “A church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court.” In Minker, the court considered a breach of an oral employment contract claim asserted by a minister. The court recognized that “it could turn out that in attempting to prove his case, the minister will be forced to inquire into matters of ecclesiastical policy even as to his contract claim,” which would require a dismissal of this claim.

The same analysis is warranted here, the DC court concluded:

If it turns out that resolution of the pastor’s claim that the regional church breached a contract to pay him a stipend requires excessive entanglement with religious doctrine, the court can grant summary judgment in favor of the regional church. But because at this early stage it is not entirely clear that resolution of [the pastor’s breach of contract claim] will require anything other than “neutral methods of proof,” dismissal on ministerial exception grounds is not warranted.

Breach of contract to convey title to property

The pastor claimed that the regional church breached its agreement to return title to the church property to the local church when it paid off the underlying loan in full. The regional church claimed that the ecclesiastical abstention doctrine prevented the court from resolving this breach of contract claim because resolution of that claim would require the court “to delve into the doctrinal beliefs of [the national church]. Specifically, the regional church explained that the property deed states that the property is to be held by the regional church in trust for the use and benefit of the national church,” and subject to The “Discipline” (the foundational document of the national church). And, of utmost importance according to the regional church, was the fact that The Discipline states that the regional church can only convey property “as may be deemed necessary or convenient for the purpose of [the regional church].” And, The Discipline describes those purposes as “religious, benevolent, charitable and educational in keeping with the purposes of national church as set forth in its Discipline.”

Therefore, the regional church reasoned, since any conveyance of real property by the regional church must be consistent with the religious “purpose” of the national church, the court was barred from resolving the breach of contract claim since doing so would directly entangle the court in the internal doctrine and practice of a religious denomination.

The court again disagreed:

Assuming the regional church is correct that terms in The Discipline are relevant to resolution of a claim that it breached a contract to convey title to the local church, it is still not apparent that resolution of the claim would require the court to assess religious doctrine or policy. The fulcrum of the regional church’s religious entanglement argument is the provision in The Discipline that states that the regional church can only convey property “as may be deemed necessary or convenient for the purpose of [the regional church].”

The regional church argues that this provision mandates that any contract to convey title must be consistent with the religious “purpose” of the national church and the court, in making that assessment as part of the breach of contract analysis, would be impermissibly assessing religious doctrine. Not so. The provision does not require that any conveyance of real property actually be consistent with the church’s religious “purpose.” Instead, it states that any conveyance must have been “deemed necessary or convenient” for that religious purpose by the appropriate individuals acting on the regional church’s behalf. An assessment of whether the regional church deemed conveyance of its property to the local church necessary or convenient for its religious purpose is a neutral determination that would not involve the court in determining what the church’s religious principles actually are. Thus, assuming the terms of The Discipline are relevant to this breach of contract claim, the regional church has not demonstrated that resolution of that claim will require the court to undertake an assessment of religious doctrine or policy. Again, to the extent that it becomes apparent that the court would be required to make such an assessment as this case progresses, the court at that time can grant summary judgment on the ground that resolution of the claim would create an excessive entanglement with religion. But, at this early stage, with that entanglement not yet apparent, dismissal on ecclesiastical abstention grounds would be premature.

Wrongful eviction

The pastor alleged that the regional church wrongfully evicted him by changing the locks on the church so that he was unable to access the building. Once again, the regional church insisted that resolution of this claim would involve impermissible religious entanglement. The court concluded that there was no evidence that this would be the case, and so it declined to dismiss this claim.

Defamation

The pastor claimed that the regional church defamed him when it disseminated a letter to law enforcement officers stating that he had made illegal and unauthorized entry onto church property. The regional church claimed that the ecclesiastical abstention doctrine prevented the court from resolving this claim since any attempt by the court to address this claim would impermissibly implicate this court in matters of religious doctrine and policy. Again, the court disagreed, noting that it “was not convinced that resolving the property-related claims will necessitate inappropriate judicial meddling in religious matters.”

What this means for churches

This case illustrates an important principle: While the “ecclesiastical abstention doctrine” prevents the civil courts from resolving internal church disputes involving “matters of church government as well as those of faith and doctrine,” it does not necessarily preclude resolution of such disputes on the basis of strictly neutral principles requiring no recourse to faith or doctrine. Gregorio v. Hoover, 238 F.Supp.3d 37 (D.D.C. 2017).

Legal Developments

Court Rules First Amendment Bars Its Involvement in Defamation Claim Against Couple’s Former Pastor and Church

Case illustrates the reluctance of the civil courts to resolve internal church disputes involving the discipline or dismissal of members.

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding the members who are in good standing of a church.

The Minnesota Supreme Court ruled that it was barred by the First Amendment's guaranty of religious freedom from resolving a defamation claim brought by a married couple against their former pastor and church.

Prior to 2011, a married couple (the "plaintiffs") had been longstanding members of a Lutheran church affiliated with the Lutheran Church-Missouri Synod. On August 22, 2011, the plaintiffs received a letter signed by the church's pastors that contained several allegations regarding their conduct over the preceding two years, but focused on complaints that the plaintiffs had been engaged in "slander and gossip" against the leadership and ministry of the congregation. In addition to criticizing the plaintiffs' behavior, the letter advised them that they had "excommunicated themselves" from the church and informed them that their church membership had been terminated.

Subsequent to this letter the Lutheran Church-Missouri Synod advised the leadership of the plaintiffs' former church to hold a "special voters' meeting" so that the congregation could vote to affirm or reject the excommunication decision. The plaintiffs and approximately 89 church members attended the special voters' meeting, which was held on September 25, 2011. A pastor addressed the meeting, reading from a set of prepared remarks, and published the August 22 letter to those present at the meeting. According to the plaintiffs, the pastor's remarks and the letter contained several defamatory statements, including:

  • The plaintiffs were actively involved in slander, gossip, and speaking against the pastors and board of elders.
  • Plaintiffs had intentionally attacked, questioned, and discredited the integrity of the pastors and other church leaders.
  • Other people had observed the plaintiffs display anger and disrespect toward the pastor.
  • The plaintiffs had publicly engaged in "sinful behavior" inside and outside the church.
  • The plaintiffs had engaged in behavior unbecoming of a Christian.
  • The plaintiffs had engaged in a "public display of sin."
  • The plaintiffs had refused to meet for the purpose of confession and forgiveness.
  • The plaintiffs had "refused to show respect" toward church leaders.
  • The plaintiffs had led other people into sin.
  • The plaintiffs had engaged in slander and gossip and had refused to stop engaging in slander and gossip.
  • The plaintiffs had refused to follow the commands and teachings of God's word.

Following the pastor's remarks, ballots were distributed and the congregation voted to affirm the pastor's decision to terminate the plaintiffs' membership at the church. Following this meeting, a Missouri-Synod panel held a hearing to reconsider the plaintiffs' excommunication, and it also affirmed the plaintiffs' excommunication.

On August 16, 2013, the plaintiffs sued the pastor and church (the "defendants") claiming that many of the statements made about them were defamatory. The trial court concluded that the First Amendment deprived it of jurisdiction to resolve the defamation claim, and dismissed the plaintiffs' case. A state appeals court agreed with the trial court, and the case was appealed to the Minnesota Supreme Court. The court began its analysis by summarizing the leading decisions of the United States Supreme Court:

First, a court cannot overturn the decisions of governing ecclesiastical bodies with respect to purely ecclesiastical concerns, such as internal church governance or church discipline. Second, a court may not entertain cases that require the court to resolve doctrinal conflicts or interpret church doctrine. Finally, a court may decide disputes involving religious organizations, but only if the court is able to resolve the matter by relying exclusively on neutral principles of law, the court does not disturb the ruling of a governing ecclesiastical body with respect to issues of doctrine, and the adjudication does not interfere with an internal church decision that affects the faith and mission of the church itself.

The court noted that the plaintiffs had conceded that the majority of the statements detailed in their lawsuit could not serve as the basis for a defamation claim, since "adjudicating the truth or falsity of the statements would require the court to consider and interpret matters of church doctrine." For example, "a court could not decide whether the plaintiffs were engaged in a 'public display of sin' without interpreting the meaning of the word 'sin' as a matter of Lutheran doctrine—a determination that would clearly be unconstitutional."

But the plaintiffs insisted that four of the statements referenced in their lawsuit could be adjudicated without violating the First Amendment: (1) that the plaintiffs "perpetuated falsehoods" about the church and its pastors, (2) that the pastors had received numerous complaints about the plaintiffs' slander and gossip, (3) that the plaintiffs accused one pastor of stealing money from the church, and (4) that the plaintiffs committed "breaches of confidentiality." The plaintiffs argued that a court could use neutral principles of law to determine the truth of these statements and, consequently, adjudicating a claim based on these four statements would not lead to excessive entanglement with religion. The defendants countered that allowing a court to adjudicate a claim based on statements made during a church disciplinary proceeding would unduly entangle the court with religion and severely interfere with the ability of religious organizations to govern their own affairs. To begin with, the defendants pointed out that because the statements were made during the course of a church disciplinary hearing, each statement has some religious meaning and a court could not simply sort so-called "secular" statements from "religious" ones.

The court conceded that this argument had merit:

Many of the statements the plaintiffs identified in their complaint were obviously religious in nature. Although other statements seem more secular in nature, it would certainly be difficult to differentiate between secular and religious statements, especially when the context in which the statements were made was clearly religious. A statement-by-statement analysis would be, at best, a difficult endeavor and, at worst, a court might be forced to interpret doctrine just to determine whether or not a statement had a religious meaning. It is precisely this sort of complicated and messy inquiry that we seek to avoid by prohibiting courts from becoming excessively entangled with religious institutions.

The defendants further asserted that the plaintiffs' claims were nothing more than an attempt to circumvent Supreme Court rulings and obtain judicial review of the decision to excommunicate them. The court responded:

There is no doubt that the First Amendment protects the right of churches and religious organizations to make decisions regarding their membership. To some degree, the plaintiffs' defamation claims are a request to evaluate the accuracy of the facts used to support the church's decision to excommunicate the plaintiffs. Some courts that adopt an absolute position on adjudicating suits arising out of church disciplinary proceedings reason that "the First Amendment's protection of internal religious disciplinary proceedings would be meaningless if a parishioner's accusation that was used to initiate those proceedings could be tested in a civil court." Hiles v. Episcopal Diocese, 773 N.E.2d 929, 937 (2002).

In essence, the defendants argue that immunity from defamation suits based on statements made during church disciplinary proceedings must necessarily be included within a church's First Amendment right to make membership decisions, lest that right ring hollow. The defendants stress that this is particularly true because exposing these proceedings and their participants to civil litigation will lead to a chilling effect. If church disciplinary proceedings are not shielded from the scrutiny of civil courts, there is a very real risk that those who participate will censor themselves in order to avoid liability or the threat of a lawsuit … .

[W]e hold that the First Amendment prohibits holding an individual or organization liable for statements made in the context of a religious disciplinary proceeding when those statements are disseminated only to members of the church congregation or the organization's membership or hierarchy. As a result, the district court properly dismissed the claims brought by the plaintiffs against the church and its pastors.

What this means for churches

This case illustrates the reluctance of the civil courts to resolve internal church disputes involving the discipline or dismissal of members. This reluctance led the court to reject the plaintiffs' claim that they had been defamed by the church and its pastor. Some courts have concluded that defamation claims arising out of statements made in church disciplinary proceedings may be adjudicated by the civil courts if they can do so without interpreting or applying religious doctrine. But given the difficulty of this task, such a position remains a minority view. Pfeil v. Lutheran Church, 877 N.W.2d 528 (Minn. 2016).

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Legal Developments

Victims of Alleged Defamation Can Compel Internet Service Provider to Disclose Anonymous Poster’s Identity

A state appeals court applied a four-part test for an order compelling an Internet Service Provider (ISP) to disclose the identity of anonymous Internet posters.

Richard R. Hammar, Attorney, CPA
Bio


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.

A New Jersey court ruled that a religious organization's leaders who allegedly were defamed by anonymous posts on a website could compel the poster's internet service provider (ISP) to disclose his identity so that he could be sued.

Four leaders of a religious organization (the "plaintiffs") filed a lawsuit that claimed they were being defamed by an anonymous person (the "defendant") who made frequent and malicious postings about them and their organization on social media. The plaintiffs alleged that the defendant had defamed them, cast them in a false light, and intentionally and negligently caused them emotional distress through postings that appeared on a website.

The lawsuit cited postings claiming that two of the plaintiffs were engaged in an extramarital affair. The lawsuit named the ISP as an additional defendant. The plaintiffs asked the court to compel the disclosure of the defendant's identity so that the lawsuit against him could proceed. The defendant responded by asking the court for a protective order barring the disclosure of his identity. The court refused to issue a protective order, and the defendant appealed.

A state appeals court applied a four-part test that is applicable whenever "trial courts are faced with an application by a plaintiff for an order compelling an Internet Service Provider (ISP) to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations or businesses." Under this test, a trial court must "first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure." Thereafter, a plaintiff must:

  1. Identify the fictitious defendant with "sufficient specificity" to allow for a determination as to whether the defendant is a real person or entity who may be sued;
  2. Demonstrate a good-faith effort to comply with the requirements of service of process;
  3. Present sufficient facts from which it may be concluded that the suit can withstand a motion to dismiss; and
  4. Provide a request for discovery with the court, along with a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about defendant that would make service of process possible.

    5. If these four steps are satisfied, then a trial court "must balance the defendant's First Amendment right of anonymous speech against the strength of the case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."

    The anonymous defendant argued that the third requirement was not met since the plaintiffs' defamation claim would not survive a motion to dismiss. The court disagreed. It noted that defamation consists of a false and defamatory statement concerning another, and the publication of that statement to others. There was no question, the court concluded, that the plaintiffs' defamation claim would survive a motion to dismiss.

    The defendant argued that the plaintiffs were public figures who had to prove malice in order to prevail in a defamation claim, and this high standard was not met. Malice in this context means that a person making a defamatory statement did so knowing that it was false, or with a "reckless disregard" as to its truthfulness. This elevated standard is based on the fact that persons who seek positions of public notoriety do so with an understanding that they will be the targets of more criticism than ordinary individuals. The court noted that the plaintiffs denied being public figures, and there was sufficient evidence that they were not for their defamation claim to survive a motion to dismiss.

    The court rejected the defendant's defense that his postings were protected by the First Amendment:

    The court must balance the defendant's First Amendment right of anonymous free speech against the strength of the case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed. The defendant seeks to couch the posts on the website as legitimate comments on the governance of a religious entity … thereby invoking a cherished First Amendment right. However, accusing individuals of adultery in a public forum is not the kind of robust, publicly-spirited debate entitled to the protections of the First Amendment. Individuals choosing to harm another … through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment.

    The court concluded that the plaintiffs "have presented a valid claim and should be given the opportunity to pursue it."

    What this means for churches

    What recourse do church leaders have when they are potentially defamed by comments posted by anonymous persons on the internet? This case demonstrates that in some cases they may be able to assert defamation claims, and compel the poster's ISP to disclose a poster's identity. However, this court concluded that the identity of anonymous posters in defamation lawsuits can be revealed only if the lawsuit would survive a motion to dismiss. This is an easy requirement to meet, since it only requires a court to determine "if the allegations of the complaint, when construed in the light most favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief may be granted." 2015 WL 10372230 (N.J. App. 2016).

Legal Developments

Pastor’s Letter to Congregation about Former Member’s Lawsuit Was Not Defamatory Due to Factual Nature

Church Law and Tax Report Pastor’s Letter to Congregation about Former Member’s Lawsuit Was Not

Church Law and Tax Report

Pastor’s Letter to Congregation about Former Member’s Lawsuit Was Not Defamatory Due to Factual Nature

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,

Pastor Jim

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.

Related Topics: Posted:

Legal Developments

The Extent of “Qualified Privilege” and the Legal Consequences of Violating Bylaws

Church Law and Tax Report The Extent of “Qualified Privilege” and the Legal Consequences of

Church Law and Tax Report

The Extent of “Qualified Privilege” and the Legal Consequences of Violating Bylaws

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.

Key point 6-02.2. Churches are subject to the provisions of their governing documents, which generally include a charter and a constitution or bylaws (in some cases both). A charter is the state-approved articles of incorporation of an incorporated church. Most rules of internal church administration are contained in a constitution or bylaws. Specific and temporary matters often are addressed in resolutions. If a conflict develops among these documents, the order of priority generally is as follows: charter, constitution, bylaws, and resolutions.

Key point 6-08. State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

A New York court ruled that a Jewish congregation’s board that blocked a congregational vote on the continued employment of its rabbi could be sued for a violation of the congregation’s bylaws, and defamation, and were not protected by either the “qualified privilege” or the qualified immunity from liability accorded by state nonprofit corporation law to uncompensated officers and directors. A Jewish congregation hired a rabbi for a three-year term. Two years into the term, at a meeting of the synagogue’s board, the board’s president, without providing the board members with prior notice that the rabbi’s future status would be considered, proposed that the rabbi’s employment not be continued at the end of his current term. By majority vote, the board agreed with the president’s proposal.

One month later the board held another meeting. At that meeting, members of the congregation objected to the board’s previous vote, claiming that it violated the congregation’s bylaws as well as New York nonprofit corporation law. These members called for a vote by the entire congregation as to whether to extend or renew the rabbi’s agreement to act as spiritual leader of the congregation. The board refused to allow such a vote to go forward.

Some of the board members submitted a petition demanding that the president call a special meeting of the congregation to discuss the continued employment of the rabbi following the expiration of his term, and to conduct a vote of the congregation as to the rabbi’s future status. A special meeting of the congregation was called, and the president indicated that a vote on the rabbi’s future would be held. However, at the meeting, an agenda was distributed that did not indicate that a vote would be taken. Upon realizing that the written agenda did not provide for a vote, many congregation members left the meeting. Nonetheless, at the meeting, a motion was made, and seconded, to approve a new three-year term for the rabbi. However, the board member who had been selected by the president to oversee the meeting, refused to allow a vote on the motion.

The rabbi and his supporters claim that during the meeting, a member defamed the rabbi by stating:

That [the rabbi] did not show up for morning services; that he failed to perform outreach for young families; that he used a different prayer book than the congregation; that he failed to lead Friday services when special evenings were planned for the same day; that he allowed non-kosher foods into the congregation’s kitchen and did not properly control the kosher validation of the kitchen; and, that he did not lead the Jewish High Holiday services.

The rabbi and some of his supporters (the “plaintiffs”) sued the board president and other board members (the “defendants”), claiming that their blocking of the congregational vote violated the congregation’s bylaws, and that statements made about the rabbi in one of the congregational meetings (quoted above) was defamatory. A trial court denied both claims, and the plaintiffs appealed.

Violation of bylaws

The plaintiffs insisted, and the trial court agreed, that the congregation’s bylaws authorized the congregation to vote on the extension of a rabbi’s term of employment, and therefore the defendants had acted unlawfully in blocking such a vote. It cited a section in the bylaws stating that “a rabbi shall be employed, engaged, retained and hired for a period of time and upon terms to be determined by the board of trustees and the congregation, as the rabbi and spiritual leader of this congregation. The members, at a congregational meeting, shall approve the hiring of the rabbi.”

But the defendants countered that this provision only authorized the congregation to vote on the initial selection of a rabbi, and not on the continuation of employment at the expiration of a specified term.

A state appeals court disagreed with the defendants’ position, noting that “the congregation’s bylaws did not limit the congregation’s authority to the hiring of a rabbi only, and exclude from the ambit of the congregation’s authority the power to extend or renew a hired rabbi’s contract.” The court noted that the congregation’s bylaws “broadly authorizes” congregation members to vote on “any question affecting the congregation.” The court concluded that “it cannot reasonably be disputed that the choice of spiritual leader of a congregation, and whether to renew that individual’s appointment, is a question affecting the congregation.”

Defamation

The plaintiffs claimed that the above-quoted statement about the rabbi made by a board member at a congregational meeting was defamatory. The defendants claimed that they were mere expressions of opinion, which cannot be defamatory.

The court noted that defamation consists of false statements about another, that are publicized, and that injure the victim’s reputation. The court noted that “since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.” And this excludes expressions of opinion: “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.”

The court concluded that the board member’s statements about the rabbi, made in a public meeting, pertained to matters of fact, not opinion: “Contrary to the defendants’ contention, these statements have precise meanings which are readily understood, and they are thoroughly capable of being proven true or false. Thus, the defamation cause of action is not subject to dismissal on the ground that the alleged statements constitute non-actionable expressions of opinion.”

Qualified privilege

The court rejected the defendants’ contention that the defamation claim had to be dismissed because the board member’s statements were protected by a qualified privilege. It noted that “courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether.” One example is the “common interest privilege,” which generally insulates from liability otherwise defamatory statements “made by one person to another upon a subject in which both have an interest.” This qualified privilege has been applied to communications carried out “in furtherance of a common interest of a religious organization.” The rationale for applying this qualified privilege in circumstances such as this is that “the flow of information between persons sharing a common interest should not be impeded.”

However, the qualified privilege for statements pertaining to matters of common interest is not absolute. It “may be dissolved if plaintiff can demonstrate that defendant spoke with ‘malice.'” In this regard, “malice” may be (1) “common law malice” consisting of spite or ill will, or (2) actual malice, meaning that the speaker knew that his or her statement was false, or made it with reckless disregard as to its truthfulness.

The court concluded that there was sufficient evidence of malice in this case to overcome the common interest privilege. It noted that some of the statements were demonstrably false, and were made “with common-law malice so as to overcome the common interest qualified privilege.” The statements were made “with the intent to and did undermine the rabbi’s authority as the spiritual leader of the congregation, and also to aid and further the defendants’ goal to interfere with and prevent the efforts by the rabbi and some members of the congregation to secure his continued employment.” The plaintiffs also alleged that the false statements “cast the rabbi in a negative light and reflected adversely on his competence as a rabbi, and harmed his standing and reputation with the congregants and others in the community.”

Qualified immunity of board members

The defendants claimed that they were immune from liability for either defamation or violating the congregation’s bylaws by blocking a congregational vote on extending the rabbi’s employment. They relied on the following provision in the New York Not-for-Profit Corporation Law:

No person serving without compensation as a director, officer or trustee of a corporation, association, organization or trust described in section 501(c)(3) of the United States internal revenue code shall be liable to any person other than such corporation, association, organization or trust based solely on his or her conduct in the execution of such office unless the conduct of such director, officer or trustee with respect to the person asserting liability constituted gross negligence or was intended to cause the resulting harm to the person asserting such liability.

Note the following points regarding the qualified immunity of board members:

• It applies to directors, officers, and trustees;

• Who serve without compensation;

• Of a tax-exempt organization;

• It does not apply to intentional misconduct or gross negligence.

The court conceded that the defendant board members were uncompensated and served on the board of a tax-exempt organization. The remaining question was whether the board members who blocked the congregational vote on extending the rabbi’s employment, or the board member who uttered the defamatory statement, had engaged in either intentional conduct or gross negligence since in either case there would be no qualified immunity from liability.

The court concluded that the defendant board members were not entitled to qualified immunity:

With regard to the remaining causes of action which seek money damages based on the defendants’ conduct in usurping the Congregation’s authority, the gravamen of the plaintiffs’ claims are that the defendants, “in bad faith and with malice,” usurped the congregation’s authority in “refusing to allow the congregation to” vote on the issue of the rabbi’s retention. The plaintiffs have alleged that the defendants refused to allow the congregants to vote on the matter in violation of … the congregation’s bylaws, and notwithstanding several petitions and letters delivered to the defendants requesting that the congregation be permitted to vote on the matter. Additionally, with regard to the defamation cause of action, as concluded above, the plaintiffs alleged malice. In short, essentially all of the plaintiffs’ allegations involve the intentional infliction of harm by the defendants … . Given the nature of the specific allegations as well as certain undisputed circumstances in this case, including the board’s refusal to allow the congregation to vote notwithstanding several demands, on this record, we conclude that there is a reasonable probability that the plaintiffs can establish that the defendants’ actions constituted gross negligence or were intended to cause the resulting harm … . Accordingly, at this stage, the defendants are not entitled to the benefit of the qualified immunity.

What This Means For Churches:

This case is instructive for several reasons.

First, it illustrates that a board’s disregard of a bylaw provision authorizing congregational votes on a minister’s employment may result in liability. The lesson is clear: board members, even by majority or unanimous vote, should not consider blocking a vote by the church’s membership on pastoral employment issues without first reviewing the church’s governing documents to be certain that such authority exists. If in doubt, consult with legal counsel.

Second, most states recognize a “qualified privilege” to defamation claims with regard to statements to church members having a “common interest” in the information communicated. But, as this case illustrates, this exception to liability based on defamation will not apply if the speaker acts with malice, which generally means making a statement the speaker knows to be false, or is made with a reckless disregard as to its truthfulness. So while the qualified privilege is important, and often will apply to statements made in church meetings, it is not absolute. It will not apply to statements that are made with malice. And, while the court did not address this issue, many other courts have limited the qualified privilege to statements made to church members, meaning that the privilege does not apply to meetings in which nonmembers are present.

Third, this is one of the few cases to address the application of a state nonprofit corporation law’s limited immunity provision to uncompensated board members of a religious congregation. The court concluded that the immunity provided by state law is limited or qualified, meaning that it does not apply to intentional misconduct or gross negligence. Kamchi v. Weissman, 1 N.Y.S.3d 169 (N.Y. App. 2014).

Legal Developments

Anonymous Online Posting May Not Safeguard Individuals from Defamation Claims, Disclosure of Identity

Church Law and Tax Report Anonymous Online Posting May Not Safeguard Individuals from Defamation Claims,

Church Law and Tax Report

Anonymous Online Posting May Not Safeguard Individuals from Defamation Claims, Disclosure of Identity

anonymous-online-posting-may-not-safeguard-individuals-from

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.

The Illinois Supreme Court ruled that a person who allegedly was defamed by an anonymous post to an article in an online newspaper could compel the poster’s Internet service provider to disclose his identity so that he could be sued. A newspaper’s online edition published an article describing the decision of a local resident (the “plaintiff”) to seek election to the county board of supervisors. Online readers could post comments in response to the article after completing a basic registration process. A few days later an individual using the name “Fuboy” posted a comment in which he described the plaintiff as “a Jerry Sandusky waiting to be exposed. Check out the view he has of Empire Elementary School.” Fuboy also made a second comment, stating: “Anybody know the tale of [the plaintiff’s] suicide attempt? It is kinda ‘It’s a Wonderful Life’ with Pottersville winning out.”

The plaintiff filed a defamation lawsuit against the newspaper and its parent company (the “defendants”). The plaintiff alleged that the comment made by Fuboy—that the plaintiff was a “Jerry Sandusky waiting to be exposed”—was defamatory because it imputed the commission of a crime (child molestation) to him. The newspaper provided the plaintiff with the Internet Protocol (IP) address acquired from Fuboy’s Internet service provider, Comcast Cable Communications LLC (Comcast). This was the IP address from which the comments had been transmitted in response to the online newspaper article.

The plaintiff issued a subpoena to Comcast, seeking the identity of the subscriber who had been assigned that IP address. A representative from Comcast advised the plaintiff’s counsel that it was preserving the records and information requested; that it had the name and address of only one account holder of the IP address at issue; and that it required a court order directing it to provide the information. The court entered an order directing Comcast to comply with the subpoena and to provide the information requested, with the conditions that Comcast would have to notify the subscriber and the subscriber would be allowed 21 days to contest the subpoena.

The subscriber’s counsel filed a motion to quash the subpoena. A trial court ruled that under Illinois law the identity of a defendant in a lawsuit can be disclosed if the plaintiff demonstrates “the reason the proposed discovery is necessary and the nature of the discovery sought.” The court concluded that to show that the disclosure of a defendant’s identity is necessary, a plaintiff “has the burden of setting forth allegations that would be sufficient to withstand a motion to dismiss … even if such a motion was not filed.” The court noted that this requirement was necessary “in order to protect any First Amendment interest possessed by the online commentator to engage in nondefamatory, anonymous speech.”Having concluded that the plaintiff’s allegation of defamation would survive a motion to dismiss, the court concluded that disclosing the defendant’s identity was “necessary” and therefore appropriate. Fuboy appealed this ruling.

A state appeals court began its ruling by noting that “in ordering the disclosure of a potential defendant’s identity … a court must balance the plaintiff’s right to redress for unprotected defamatory language against the danger of setting a standard for disclosure that is so low that it effectively chills or eliminates the right to speak anonymously and fails to adequately protect the chosen anonymity of those engaging in nondefamatory public discourse.” In defending the definition of “necessary” as surviving a motion to dismiss, the court noted that once a plaintiff demonstrates that his or her defamation claim would survive a motion to dismiss, an anonymous defendant has no First Amendment right to balance against the plaintiff’s right to redress because there is no First Amendment right to defame.”

The court noted:

A motion to dismiss tests the legal sufficiency of a complaint. The question to be answered is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief may be granted… . A court should not dismiss a complaint … unless it is clearly apparent no set of facts can be proved that would entitle the plaintiff to recovery … . To state a cause of action for defamation, a plaintiff must present facts showing “the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. A defamatory statement is one that harms a person’s reputation because it lowers the person in the eyes of others or deters others from associating with her or him. A statement is defamatory per se if its harm is obvious and apparent on its face [such as] words imputing the commission of a crime.”

The court concluded that Fuboy’s statement imputed the commission of a crime to the plaintiff. It noted that at the time Fuboy’s comment was posted, the Jerry Sandusky sexual abuse scandal had dominated the national news for weeks. The court observed:

Sandusky was a football coach for the famed Penn State football program. Over the course of years, Sandusky allegedly sexually abused young boys. The degree to which Sandusky’s coaching colleagues knew of and failed to alert the appropriate authorities of Sandusky’s criminal activities became part of the scandal. In short, at the time of Fuboy’s comment, numerous men were testifying to the abuse they allegedly suffered at the hands of Sandusky when they were young boys. The general public was mindful of the fact Sandusky was accused of sexually abusing young boys. Stating that the plaintiff was “a Sandusky” while the scandal dominated the national news, coupled with the reference to Empire Elementary School, conveyed the idea that he was a pedophile or had engaged in sexual acts with children and, thus, had committed criminal conduct.

What This Means For Churches:

What recourse do church leaders have when they are potentially defamed by comments posted by anonymous persons on the Internet or social media? This case demonstrates that in some cases they may be able to assert defamation claims, and compel the poster’s Internet service provider to disclose his or her identity. However, this court concluded that the identity of anonymous posters in defamation lawsuits can be revealed only if the lawsuit would survive a motion to dismiss. This is an easy requirement to meet, since it only requires a court to determine “if the allegations of the complaint, when construed in the light most favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief may be granted.” To state a cause of action for defamation, a plaintiff must present facts showing “the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages.”

The court further noted that a statement “is defamatory per se if its harm is obvious and apparent on its face [such as] words imputing the commission of a crime.” Hadley v. Doe, 2015 IL 118000 (Ill. 2015).

Legal Developments

Church Board Guilty of Defamation

Pastor able to sue board for false accusations.

Church Law and Tax Report

Church Board Guilty of Defamation

Pastor able to sue board for false accusations.

Key point 4-02.02. Ministers are considered “public figures” and as a result they cannot be defamed unless the person making an otherwise defamatory remark did so with malice. In this context, malice means that the person making the defamatory remark either had actual knowledge that it was false or made it with a reckless disregard as to its truth or falsity.

A Louisiana court ruled that a church and members of the church board were guilty of defaming a former pastor. A church’s treasurer, board chairman, and three church members visited the church’s bank to obtain information on the church’s finances because the church was planning on building a new sanctuary. They were advised by the bank that the church had a $50,000 certificate of deposit (“CD”). At a meeting of the church board, the church’s pastor was unable to identify the source of the CD and was asked to step down as pastor. He repeatedly informed the church board that he did not steal any money from the church and that the CD did not belong to the church.

The pastor sued the church and members of the church board (the “church defendants”). His lawsuit alleged that church board members defamed him by falsely accusing him of having improperly used funds belonging to the church; accused him of embezzlement of church funds by purchasing the CD with church funds for his own use; and called him a thief and a liar before members of the church. A trial court ruled in favor of the pastor, and awarded him $196,228 for back pay, $120,246 for pastoral annual payment loss, $79,795 for fringe benefit loss, plus costs and interest from the date of judicial demand, and general damages of $150,000. The church defendants appealed.

The court noted that three elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another, (2) communicated to a third party (“publication”), and (3) resulting in injury to reputation. The court added that “a statement is defamatory if it tends to harm a person’s reputation, lowers the person in the estimation of the community, deters others from associating with the person, or otherwise exposes the person to contempt or ridicule.”

Words that accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, are deemed “defamation per se,” meaning that they are presumptively defamatory. The court concluded that the church defendants’ statements were defamatory per se. The church defendants “accused the pastor of embezzlement of church funds,” and of being a thief and a liar in front of other members of the church … . These accusations are defamatory per se because they accused the pastor of criminal conduct and because, by their very nature, they tended to injure his professional reputation as a pastor.”

Even if statements constitute defamation per se, they still must be communicated (“published”) to at least one third person in order for defamation to occur. The reason for this requirement is that defamation constitutes an injury to reputation, and this cannot occur unless the defamatory statement is communicated to others. The court observed, “Publication means the communication of non-privileged defamatory words to even one single person besides the party defamed. A defendant who utters a defamatory statement is responsible for all republication that is the natural and probable consequence of the author’s act.”

The court next observed that “a plaintiff claiming defamation must present competent evidence of the injuries suffered,” and that “the defamatory statements were a substantial factor in causing the harm.” There was no question, the court concluded, that the pastor had suffered due to the defamatory statements: “He was unable to pursue his vocation as a pastor of an established church. Further, he lost his health insurance and his pension, which were benefits that the church provided to him … . He was in poor health and unable to find other work.”

What This Means For Churches:

This case illustrates three important points:

First, church leaders should understand that making derogatory comments in public regarding current or former staff members may result in liability for defamation, especially when those comments refer to criminal acts, such as embezzlement or theft. If financial improprieties are detected or suspected, church leaders must be cautious in what they communicate with the membership. Any statement should be written, and approved by legal counsel.

Many courts have recognized a “qualified privilege” for statements made to church members on matters of common interest. This means that such statements ordinarily cannot be defamatory unless made with “malice.” Malice in this context means that the person making the statements knew they were false, or made them with a reckless disregard as to their truthfulness. Malice is very difficult to prove, and this means that churches have significant protection when communicating with members regarding matters of common interest.

Note that this privilege generally is limited to communications made to church members. Church leaders wanting to preserve the qualified privilege defense when communicating matters of common interest to the congregation should take steps to ensure that their statements are directed exclusively to members.

Second, the court ruled that the “publication” requirement in the definition of defamation can be satisfied if a defamatory statement is shared with only one person: “Publication means the communication of non-privileged defamatory words to even one single person besides the party defamed. A defendant who utters a defamatory statement is responsible for all republication that is the natural and probable consequence of the author’s act.”

Third, note that some members of the church board were sued as well as the church, and were found personally liable for their actions. Thompson v. Bank One of Louisiana, NA, 134 So.3d 653 (La. App. 2014).

Legal Developments

First Amendment Doesn’t Keep Court from Resolving Defamation Claims

Ohio court not barred on grounds that resolution won’t change church doctrine or governance.


Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

Key point 6-10.2. According to the minority view, the civil courts may engage in "marginal review" of disputes involving the discipline of a church member, in a few limited circumstances if they can do so without inquiring into religious doctrine or polity. For example, a few courts have been willing to review membership dismissals in one or more of the following limited circumstances: (1) the church interfered with a member's civil, contract, or property rights; (2) the disciplining body lacked authority to act; (3) the church failed to comply with its governing documents; (4) the church's decision was based on fraud or collusion; or (5) interpretation of contested terminology in the church's governing documents.

An Ohio court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a former member's claims of defamation and emotional distress since a resolution of these claims would not implicate church doctrine or governance. A woman in her eighties (the "plaintiff") was a 50-year member of a church. In 2010, following the church's selection of a new pastor, the plaintiff began to disagree with the direction of the church. She communicated her disagreement over various matters, including church doctrine, governance, and finances, with other church members, administrative staff, and the pastor.

After several months of discord, the pastor gave the plaintiff a letter maintaining that she had committed offenses against him and the church, including a statement that she had attempted to steal church property (a picture of the former pastor). The plaintiff claimed that the pastor informed her that her membership had been revoked and that she would not be permitted back in the church.

Nevertheless, the plaintiff attended worship services the following week, and, at the direction of the pastor, the police were notified and removed her from church property. The pastor later read the letter he had previously sent to the plaintiff to the congregation, which contained the charges against her, including the fact that she had attempted to steal church property.

The plaintiff sued the pastor, alleging "defamation per se" and intentional infliction of emotional distress. Defamation per se occurs when a statement is defamatory on its face, consisting of words which import a criminal offense involving moral turpitude, such as theft of church property. The pastor asked the court to dismiss the lawsuit on the grounds that the plaintiff's claims stemmed from her church membership and that his allegedly wrongful acts related to ecclesiastical matters that were outside of the court's jurisdiction. The court granted the pastor's motion to dismiss the case, concluding that it had no jurisdiction to determine the claims of defamation and emotional distress because the pastor's actions were ecclesiastical matters.

A state appeals court reversed the trial court's ruling, and ordered the case to proceed to trial. The court concluded:

Courts properly decline jurisdiction on "purely ecclesiastical" grounds such as appointing or removing pastors and inquiring into church finances … . The First Amendment has been generally interpreted to mean that courts are barred from inquiring into purely ecclesiastical questions and from resolving disputes over church doctrines and practices. On the other hand, courts retain jurisdiction on "purely secular" matters, i.e., non-doctrinal disputes which can be resolved by employing neutral principles of law. Defamation per se is a legal issue that is purely secular in nature and can be resolved by applying neutral principles of law … . Thus, defamation per se is a clearly delineated set of statements that secular courts have determined are intrinsically defamatory.

Upon review, we find the plaintiff's two claims, defamation per se (based upon an indictable criminal offense involving moral turpitude) and intentional infliction of emotional distress (based upon the defamation), are secular. Therefore, basic tort principles apply. Simply because one of the parties includes a religious figure does not necessarily make the matter ecclesiastical. The record in this case establishes that the plaintiff's claims are governed by clearly defined principles of secular law and do not require an interpretation or decision involving church doctrinal matters. Accordingly, her claims are not "purely ecclesiastical" and are within the jurisdiction of the trial court. Therefore, since the issues here are secular, the trial court erred in [dismissing the case].

What This Means For Churches:

This demonstrates that not all internal church disputes are beyond the reach of the civil courts. If a dispute can be resolved on the basis of "neutral principles of law" not requiring any interpretation of church doctrine, some courts are willing to resolve them. But many other courts disagree, especially when a dispute involves the status of church membership. Most, if not all, courts would agree that a church's decision to revoke a person's church membership implicates doctrine and church governance and therefore could not be reviewed by the civil courts. Many courts have expanded this principle to include other bases of liability, such as defamation and invasion of privacy, that are collateral to the decision to revoke the person's membership. Ciganik v. York, 2013 WL 6881611 (Ohio App. 2013).

Legal Developments

Ministerial Exception Prevents Courts from Making Defamation Charges

Pastor accused by church leaders of producing pornography is unable to claim defamation in the courts

Church Law and Tax Report

Ministerial Exception Prevents Courts from Making Defamation Charges

Pastor accused by church leaders of producing pornography is unable to claim defamation in the courts

Defamation

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

Key point 10-15. The First Amendment limits, but does not eliminate, a church’s liability for defamation.

A Texas court ruled that the “ministerial exception,” which bars civil courts from resolving employment disputes between churches and pastors, prevented it from resolving an associate pastor’s claim that he had been defamed by church leaders who accused him of producing and accessing pornography. A church’s associate pastor (the “plaintiff”) alleged that church officials sought his resignation because he revealed to them that the church had financial problems. In particular, he claimed that he informed church officials “that the church’s financial condition was deteriorating and that they might have to hold a membership meeting of the church to discuss the financial options available.” The plaintiff claimed that the lead pastor did not like this financial news because it “reflected on his ability to run the church and it prevented him from making an overseas trip using church funds.” According to the plaintiff, the lead pastor “began a campaign to solicit negative comments in the form of letters from various members to be used as a reason to embarrass him into resigning from his position.”

The plaintiff asserted that church leaders “falsely accused him of producing and disseminating pornography.” The allegedly false accusations were based on an e-mail that the plaintiff sent to the lead pastor in which he attached a proposed announcement to be made during an upcoming church service that depicted a couple lying in bed with the caption “Ignite Your Marriage at [our church]. Mattress not included.” The plaintiff insisted that the couple depicted in the image were fully clothed, and therefore the accusation of pornography was false and defamatory.

The plaintiff sued the lead pastor, and church for defamation, conspiracy, interference with contract and prospective contract, negligence, and intentional infliction of emotional distress. He asked for injunctive relief and monetary damages. The trial court dismissed the lawsuit, and the plaintiff appealed.

A state appeals court began its opinion by noting that “the ecclesiastical abstention doctrine prevents secular courts from reviewing many types of disputes that would require an analysis of theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” The doctrine provides that “civil courts are to accept as final, and as binding on them the decisions of an ecclesiastical institution on such matters.”

The related “ministerial exception” refers to the application of the ecclesiastical abstention doctrine in the employment context. It provides that “civil courts lack subject matter jurisdiction to decide cases concerning employment decisions by religious institutions concerning a member of the clergy or an employee in a ministerial position … . Although wrongs may exist in the ecclesiastical setting, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle that it overshadows the inequities that may result from its application.”

The court concluded that the ecclesiastical abstention doctrine and ministerial exception required the dismissal of the plaintiff’s claims against the lead pastor and church:

Each of his causes of action are based on [the church defendants] allegedly taking action against him for conduct that they viewed as inappropriate for an associate pastor. There was no evidence adduced that his reputation was harmed outside of the church community, nor was there evidence that the church defendants took any action outside the context of their deliberations regarding the plaintiff’s fitness for service as an associate pastor with the church. Instead, the evidence demonstrated that “the individual defendants did not publish the alleged defamatory statements to third parties outside of the church membership” and that “the substance and nature of his claims is to recover for an intangible injury to his reputation and for emotional distress allegedly caused by the church defendants’ statements and actions in connection with the employment dispute.” The evidence established that the actions underlying the plaintiff’s claims—specifically, the lead pastor’s assertions that the plaintiff distributed pornography—took place entirely within the context of church officials’ internal efforts to remove him from his position. Thus, trial on the plaintiff’s claims would require an analysis of “church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” The ecclesiastical abstention doctrine precludes subject matter jurisdiction over those causes of action.

What This Means For Churches:

This case demonstrates the important principle that the ministerial exception not only bars civil court review of wrongful dismissal claims by clergy, but also any claims collateral to adverse employment decisions including defamation, conspiracy, and emotional distress.

The case is also important because the court concluded that the ministerial exception required dismissal of the plaintiff’s interference with contract claim. Such a claim arises when one party shares information with an employer that leads to the termination of an employee. This basis of liability is sometimes asserted against churches and denominational agencies that share negative information about a minister that leads to the termination of his or her employment by another church. The plaintiff insisted that his interference with a prospective contract claim was based on an allegation that “he was removed from consideration for a job at another church” based on the false charge of using pornography. In rejecting this basis of liabliity, the court observed that “this allegation is also based on acts allegedly taken within the context of the church’s internal employment procedures. It is barred by the ministerial exception.” 399 S.W.3d 690 (Tex. App. 2013).

Legal Developments

Church Member Sues Pastor for Defamation

Pastor sued for making widespread allegations that a church member was homosexual.

Richard R. Hammar, Attorney, CPA
Bio


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.

Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more of the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.

Key point 10-13.1. A few courts have found churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, the church or agency is found to be vicariously liable for the minister's breach of a fiduciary duty, but in others the church or agency is found to have breached a fiduciary duty that it had with the victim.

A Florida court ruled that a church member could sue his pastor for defamation for publicly alleging that he was a homosexual.

A church member (the "plaintiff") and his pastor formed both a business and personal relationship outside the church. Later, the pastor sponsored the plaintiff to obtain a license to minister in the denomination with which the church was affiliated.

As their relationship developed, the plaintiff confided in the pastor that he had been called a homosexual as a teenager by an authority figure. This ultimately led to the plaintiff's installation of a religious internet filtration and accountability system on his personal computer that reports suspect internet usage, or attempted usage, to third parties. The pastor served as the plaintiff's "accountability partner" under the system, and one report prompted the pastor to ask the plaintiff if he was "gay." The plaintiff denied that he was a homosexual. At some point thereafter, the relationship between the two men deteriorated.

The plaintiff alleged that on several occasions the pastor falsely accused him of being a homosexual and asserted that his upcoming marriage was a sham designed to conceal his homosexuality. These allegations were disseminated to members of the church, including the father of the plaintiff's fiancé. Later, the pastor urged the plaintiff to call off his upcoming marriage and move out of state, which he did. After the move, when the plaintiff attempted to transfer his pastor's license from Florida to Michigan, the pastor falsely reported to church officials that he was a homosexual. He also called the plaintiff's new pastor to repeat the same accusation.

The plaintiff sued the pastor for defamation, breach of fiduciary duty, and emotional distress. The trial court dismissed all claims against the pastor on the ground that they were barred by the so-called "church autonomy" doctrine, which generally bars the civil courts from interfering in internal church disputes involving doctrine or polity. The plaintiff appealed.

Defamation

A state appeals court began its opinion by defining the church autonomy doctrine:

The church autonomy doctrine stems from the First Amendment to the United States Constitution which provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The doctrine, known also as the "religious autonomy principle," and the "ecclesiastical abstention doctrine" … gives a special, protected status to religious disputes by shielding them from intervention by the courts. The doctrine prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine ….

Two distinct viewpoints have evolved with respect to the doctrine in the context of such claims. Some state and federal courts have taken an expansive view of the protections afforded by the doctrine and refuse to adjudicate most tort claims against religious institutions, finding such claims barred because the conduct giving rise to the claim is inextricably entangled with church polity and administration. Most courts, however, have adopted a narrower view of the doctrine and hold that the rights guaranteed by the First Amendment are not violated if the tort claims can be resolved through the application of "neutral principles" of tort law, particularly where there is no allegation that the conduct in question was part of a sincerely held religious belief or practice.

The court noted that the Florida Supreme Court had adopted the "neutral principles" approach, and it concluded that the neutral principles approach did not require a dismissal of the plaintiff's defamation and fiduciary duty claims. It concluded:

His defamation claims were based on a series of statements made by the pastor, who expressly or implicitly inferred that he was a homosexual and asserted that his upcoming marriage was a sham to hide his homosexuality. These statements were made during a meeting in the pastor's office, to which the pastor called the plaintiff and three others; in a sermon two weeks after the meeting; when the plaintiff sought to have his ministerial license transferred from Florida to Michigan; and when the pastor called the plaintiff's pastor in Michigan. The First Amendment does not grant the pastor carte blanche to defame church members and ex-members. If untrue, the statement that a person is a homosexual has long been recognized as potentially defamatory outside the context of any religious doctrine or practice. This claim can be adjudicated without implicating the First Amendment and was improperly dismissed on the basis of the church autonomy doctrine.

Breach of Fiduciary Duty

The court also ruled that the trial court erred in dismissing the plaintiff's breach of fiduciary duty claim:

As to the plaintiff's claim for breach of fiduciary duty—based on allegations that the pastor had a fiduciary duty to him because of the pastor/church member relationship and the internet filtration and accountability program—the First Amendment does not necessarily bar such claims.

Emotional Distress

The court affirmed the trial court's dismissal of the plaintiff's emotional distress claim, noting that the pastor's conduct over an almost two-year period repeatedly telling various people that the plaintiff was a homosexual and of immoral character, and attempting to terminate his relationship with his fiancé, "while deplorable, did not rise to the level of outrageousness required" to prove emotional distress.

Invasion of Privacy

Invasion of privacy includes public disclosure of private facts about another in a manner that a reasonable person would find outrageous. In rejecting this claim the court observed: "The plaintiff's allegations did not establish enough publicity to make the pastor's conduct actionable for public disclosure of private facts. The publicity given to private facts must be to the public at large or to so many persons that the matter must be regarded as substantially certain to become public knowledge." 91 So.3d 887 (Fla. App. 2012).

Legal Developments

Defamation in Church Business Meetings

Courts can resolve defamation claims that do not involve interpretation of religious doctrine.

Richard R. Hammar, Attorney, CPA
Bio

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.

A Georgia court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving the defamation claim of a deacon who was falsely accused of adultery and theft of church assets by a member at a church business meeting. At the close of a church business meeting, a member (the "defendant"), who was not on the agenda, stood up and demanded to read a written declaration that he had prepared. In front of all those present, he read aloud from the document, accusing a deacon (the "plaintiff") of having committed adultery on various occasions and of having attempted to steal money from the church. In fact, the accusations were false, and the defendant acknowledged that he did not have any facts to support the accusations. The plaintiff sued the defendant for defamation, and a jury found in his favor and awarded him $125,000 in damages.

On appeal, the defendant claimed that the court lacked jurisdiction to hear the case because it involved church governance, faith, and procedure. The appeals court acknowledged that "civil courts have no power or authority to interfere in the internal affairs of a religious organization concerning doctrines, faith, or belief." However, this does not mean "that our courts are prohibited from addressing all disputes that arise in an ecclesiastical context," and that when a dispute "does not involve inquiry into church doctrine, faith or other ecclesiastical matters, the civil courts are not prohibited from adjudicating the dispute."

The court noted that this case involved a defamation claim based on accusations of adultery and attempted theft, and that "such conduct is not protected by the doctrine of separation of church and state [merely] by utterance [of the accusations] during the course of a church meeting …. Because this case does not require an impermissible inquiry into ecclesiastical matters, and instead involves resolution of a slander claim, the trial court properly exercised its jurisdiction over the dispute."

What This Means For Churches:
This case is important for the following reasons:

(1) The courts. The case illustrates that some communications by church members regarding other members may be defamatory. The court acknowledged that the civil courts cannot resolve such disputes if doing so would require an inquiry into religious doctrine. On the other hand, the courts can resolve defamation claims involving statements accusing church members of other wrongs requiring no interpretation of religious doctrine.

(2) Personal liability of members. The case demonstrates the substantial personal liability that church members face when they accuse other members of criminal behavior, even in the course of a church business meeting. Giles v. Heyward, 726 S.E.2d 434 (Ga. App. 2012).

This article first appeared in Church Law & Tax Report, March/April 2013.

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2013 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Defamation and Proof of Injury to Reputation

Injury to reputation is not always presumed in cases of false accusations.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax

Defamation and Proof of Injury to Reputation

Injury to reputation is not always presumed in cases of false accusations.

Richard R. Hammar, J.D., LL.M., CPA

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 4-02.02. Ministers are considered “public figures” and as a result they cannot be defamed unless the person making an otherwise defamatory remark did so with malice. In this context, malice means that the person making the defamatory remark either had actual knowledge that it was false or made it with a reckless disregard as to its truth or falsity.

The New Mexico Supreme Court ruled that defamation requires proof of actual injury to reputation, and that injury to reputation will not be presumed even in cases of false accusations of pedophilia, and as a result a pastor who was falsely accused of pedophilia could not sue the perpetrators for defamation without proof of actual damage to his reputation. A church board member compiled a packet of documents for presentation to a denominational agency (the “regional church”) pertaining to misconduct by the pastor. The packet included documentation related to financial problems at the church, an alleged lack of leadership shown by the pastor, and personal attacks against the pastor. One of the documents was an anonymous letter accusing the pastor of several acts of pedophilia. After the presentation of this information to the regional church, and at its recommendation, the pastor disclosed a summary of the allegations to the congregation during a Sunday service.

At some point after the pastor’s disclosure to the congregation, one or more board members offered to make copies of the packet for inquiring parishioners. The pastor later sued the board members who disclosed the full contents of the packets (the “defendants”), claiming that their actions amounted to defamation.

The defendants asked the court to dismiss the lawsuit on the ground that the pastor failed to establish a cause of action for defamation because he was unable to demonstrate that he had suffered any actual injury to his reputation as a result of the distribution of the material. The pastor insisted that falsely accusing a religious leader of pedophilia is always defamatory and that personal humiliation and mental anguish qualified as the necessary injury.

The trial court dismissed the case, finding that the pastor was unable to demonstrate actual injury to his reputation because he was never suspended from his position, nor did he suffer any “adverse employment consequences” or other related losses from distribution of the anonymous letter. It rejected the pastor’s argument that evidence of mental anguish and humiliation is sufficient to establish actual injury for liability purposes.

The state supreme court ruled that to prevail in a defamation lawsuit a plaintiff must prove actual injury to reputation, and it stressed that injury to reputation could not be “presumed” even in cases involving unfounded accusations of pedophilia.

The court concluded, “It is undoubtedly the case that a system that restricts recovery to actual loss will be imperfect, but so is any system that attempts to compensate human injury with money …. The interest served by allowing recovery for defamation, however, is the interest of compensating individuals for injury to reputation. Recovery for a mere tendency to injure reputation, or only upon a showing of mental anguish, is not only too speculative where the tort action for defamation has existed to redress injury to the plaintiff’s reputation.”

The court added the following observation regarding proof of actual injury to reputation:

A showing of actual injury to reputation is not so high a barrier to surmount that it limits recovery only to monetary loss and employment termination, however. Injury to reputation may manifest itself in any number of ways. Events indicating an injury to reputation in the present case might include a decline in [church] membership, an unwillingness for parishioners to allow children to participate in parish-related activities, or a decline in general social invitations from fellow parishioners—assuming such evidence could be proved and linked to the defamatory communication. There is no indication that plaintiff came forward with evidence of any kind to support an argument that his reputation was actually injured by the publication of the anonymous letter.

What This Means For Churches:
While many courts in other states have rejected presumed injury in defamation cases, this view is not unanimous. Other courts have been willing to accept the concept of presumed injury to reputation in egregious cases. Smith v. Durden, 276 P.3d 943 (N.M. 2012).

This article first appeared in Church Law & Tax Report, March/April 2013.

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840.© 2013 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Defamation Claim Against Church

Courts may resolve church disputes if they can do so without inquiring into church doctrine.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Defamation Claim Against a Church

Courts may resolve church disputes if they can do so without inquiring into church doctrine.

Richard R. Hammar, J.D., LL.M., CPA

Key point 6-06.4. Church officers and directors can be removed from office in the manner authorized by the church’s governing documents. It is common for church bylaws to give the membership the authority to remove officers and directors who engage in specified misconduct or change their doctrinal position.

A South Carolina court ruled that it could resolve a defamation claim brought by dismissed church board members against their church since it could do so solely on the basis of neutral principles of law without any inquiry into church doctrine. A church relocated to a new facility. The congregation thereafter approved the church board’s request to borrow funds to purchase and improve a nearby apartment building. After the purchase, the apartment building caught fire and the church learned it did not have insurance on the building. The church also learned that church property was serving as collateral for the loan used to purchase the apartment building. At a congregational meeting, the pastor made a presentation to the congregation providing the reasons he believed the board members should be removed from office.

The dismissed board members (the “plaintiffs”) sued the pastor and church for negligence, and the pastor for defamation and emotional distress. The plaintiffs alleged that at the congregational meeting, the pastor told the congregation that the plaintiffs had placed a $300,000 mortgage on the church property to purchase some nearby apartments without his knowledge and failed to insure them. They asserted that the pastor also informed the congregation that they had mismanaged money and money was missing from the church. They further alleged that the pastor informed the congregation that he had been constantly deceived by the plaintiffs and that they should be removed from the board. A trial court dismissed the lawsuit, and the plaintiffs appealed.

The appeals court began its opinion by noting that when resolving church disputes, most courts apply the “neutral principles of law approach.” Under this approach: “(1) courts may not engage in resolving disputes as to religious law, principle, doctrine, discipline, custom, or administration; (2) courts cannot avoid adjudicating rights growing out of civil law; [and] (3) in resolving such civil law disputes, courts must accept as final and binding the decisions of the highest religious judicatories as to religious law, principle, doctrine, discipline, custom, and administration.”

The court concluded that the plaintiffs’ defamation claim could be resolved using legal principles without examining any religious questions, and, “because the trial court can completely resolve a church dispute on neutral principles of law, the First Amendment commands it to do so.” It stressed that the trial court “would not need to look at the church’s beliefs to determine if the statements constitute defamation. Accordingly, the trial court erred in dismissing the defamation cause of action. Therefore, the dismissal of the defamation action should be reversed and the action remanded for trial.” The court noted that courts in other states had refused to resolve defamation claims involving church leaders, but concluded that those courts “could not determine if the claim was defamation without looking into the churches’ beliefs.”

The court agreed with the pastor and church that the plaintiffs’ negligence claim had to be dismissed since it could not be resolved without delving into church doctrine. It noted that the plaintiffs alleged that the church had been negligent in hiring the pastor and not conducting its own investigation into the facts before the congregational meeting was held. The negligence claim against the pastor alleged that he was negligent in asking the congregation to remove the members of the board and in not conducting his own investigation of the facts before the meeting was held. The court concluded: “All of these allegations involve the administrative procedures of the church which … courts cannot examine.”

What This Means for Churches:

This case illustrates the view of some courts that the First Amendment does not prohibit the civil courts from resolving defamation claims against churches and church leaders so long as such claims can be resolved solely on the basis of neutral principle of law without reference to church doctrine or polity.

There is another interesting aspect of this case that should be noted. The plaintiffs relied upon the minutes of the congregational meeting in supporting their claim of defamation. The minutes taken at the congregational meeting reflect that the pastor stated “the church had been mortgaged and there was no insurance on the buildings that had been purchased,” a $300,000 mortgage he did not know about had been placed on the church building, and he had been “constantly deceived throughout.” This illustrates the importance of using care in drafting minutes of membership or board meetings to ensure that statements are not being recorded that can be used against the church in subsequent litigation. Banks v. St. Matthew Baptist Church, 706 S.E.2d 30 (S.C. App. 2011).

This Recent Development first appeared in Church Law and Tax Report, March/April 2012.

Legal Developments

Employee Injured While Commuting to Work

Does workers’ compensation apply?

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Employee Injured While Commuting to Work

Does workers’ compensation apply?

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-07.2. All states have enacted workers compensation laws to provide benefits to employees who are injured or become ill in the course of their employment. Benefits generally are financed through insurance premiums paid by employers. Churches are subject to workers compensation laws in most states.

A federal appeals court ruled that an employee was not engaged in work-related activities while commuting, even though she was taking her employer’s computer backup computer disks home for safekeeping, and therefore she was not eligible for workers’ compensation benefits as a result of injuries she sustained in an accident. Workers’ compensation laws have been enacted in all 50 states. These laws provide compensation to employees as a result of job-related injuries and illnesses. The amount of compensation is determined by law and generally is based upon the nature and extent of the employee’s disability. In exchange for such benefits, employees give up the right to sue an employer directly. Fault is irrelevant under workers’ compensation laws. The only inquiries are (1) did an employment relationship exist; (2) did the injury occur during the course of employment; and (3) what were the nature and extent of the injuries? Typically, employers purchase insurance to cover the costs of workers’ compensation benefits.

A question that sometimes arises is the application of workers’ compensation laws to employee injuries that occur when an employee is commuting to or from work. Consider a recent case. An employee of a law firm was responsible for taking the firm’s backup computer disk home each workday for safekeeping. She also regularly did some work at home for the firm. One evening, after working a full day on the job, the employee was severely injured in an auto accident. She later filed for benefits under the firm’s workers’ compensation insurance policy.

The insurer initially denied the employee’s workers’ compensation claim on the ground that her injury did not occur during the course of employment. The employee thereafter sued the insurer for its “bad faith” in rejecting her claim.

A federal appeals court dismissed the employee’s bad faith claim on the basis of the so-called “dual purpose” test, which it defined as follows: “If the work assignment made the travel necessary, the worker is in the scope of employment, but if the trip would have occurred anyway, the travel is personal and not in the scope of employment. The fact that the employee had finished her normal workday, and was heading home, provided an arguable basis for the application of the dual purpose test,” precluding the employee’s bad faith claim.

What This Means For Churches:

A number of legal and tax issues are associated with commuting. These include: (1) is an injury to an employee compensable under workers’ compensation; (2) is the church liable for injuries caused by an employee in the process of commuting to or from work; (3) is a church required to compensate employees (including overtime pay, if applicable), for time spent commuting; (4) are transportation expenses incurred while commuting a business expense that is deductible on the employee’s income tax return, or is that reimbursable by the church under an accountable reimbursement plan? The answer to these questions may depend on whether the employee is engaged in work-related activities while commuting.

This case illustrates an important point. Church employees who are asked to perform a work-related task while commuting to or from work, and who are injured during their commute, are not necessarily in the “course of employment”—and as a result may not be covered by the church’s workers’ compensation policy. Work-related tasks include taking items home for safekeeping, but may also include using a cell phone for work-related business if allowed by law. This case suggests that employees are not engaged in their employment when commuting, regardless of what work related duties they may be performing, since they would have to commute whether engaged in work-related activities or not. Hill v. State Farm Insurance, 2011 WL 1304908 (5th Cir. 2011).

This Recent Development first appeared in Church Law and Tax Report, March/April 2012.

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