Defamation and Church Newsletters

Can a church be sued for publishing derogatory statements in its newsletter?

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Defamation

Church Law and Tax 1992-05-01 Recent Developments

Libel and Slander – Defamation

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

• Can a church be guilty of defamation if it publishes derogatory statements in a church newsletter? No, concluded a Louisiana appeals court. A Catholic priest became upset when he suspected that a monument company that did work at a church cemetery was guilty of using church utilities without paying for them. He wrote a letter to the owner of the monument company which stated, in part: “Stated simply, your workers entered our property, and used [church] utilities without permission, and that is theft. I could have them arrested for and charged, for your information.” A copy of the letter was sent to the diocese. A week later, the priest published the following statement in a church newsletter (that was mailed to 362 families): “For your information, I have been obliged [to inform the monument company] that it is forbidden … to perform work of any kind in [the cemetery]. The company has persisted in ignoring my cemetery policies, and has a ‘come as you please, go as you please’ attitude and uses our electrical utilities without permission. The utilities come out of cemetery funds (e.g., your pocket).” The monument company sued the priest, the local church, and the diocese, when it learned of the statement in the newsletter. A trial court ruled in favor of the defendants, and the company appealed. A state appeals court also rejected the claim of defamation. The court observed: “The elements of a defamation action are: (1) a defamatory statement, (2) publication, (3) falsity, (4) actual or implied malice, and (5) resulting injury. A statement which imputes the commission of a crime to another is defamatory per se and as a result, falsity and malice are presumed, but not eliminated as requirements.” The court concluded that the statements by the priest in the letter and church newsletter were false, but that they were not defamatory since the priest made them with a reasonable belief that they were true and accordingly they were not made with “malice.” Redmond v. McCool, 582 So.2d 262 (La. App. 1991).

Defamation and Employer References

Talk with an attorney before making potentially defamatory statements about former employees.

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1991-11-01 Recent Developments

Employee Relations

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

• A federal court in the District of Columbia threw out a lawsuit brought by a worker against his former employer for allegedly defamatory references given to prospective employers. The worker was employed as a bookkeeper for a secular company. His employment was marked by difficulties with fellow employees. On one occasion, a disagreement escalated into a fist fight. Without explanation or advance notice, the worker quit his job. He later applied for another job, and the prospective employer sought references from the former employer. One supervisor stated that the worker was “wholly incompetent” and “not eligible for rehire.” Another supervisor stated that the worker was “undesirable as a candidate for rehire,” and that he had “personality conflicts” with co-workers. The worker sued his former employer, and these supervisors, for defamation on the basis of these statements. The defendants asked the court to dismiss the case, and the court did so. It emphasized that all of the allegedly defamatory statements were protected by a “qualified privilege” which it defined as follows:

One who in the regular course of business is asked by a prospective employer … for information concerning a person, is entitled to the defense of qualified privilege if his reply would otherwise be regarded as defamatory …. The qualified privilege serves an important public function in the employment context. Without the privilege, references would be even more hesitant than they are to provide candid evaluations of former employees. In order to overcome the qualified privilege, the plaintiff must show that the statements were made with malice. Once a communication is deemed privileged, the burden of proof to demonstrate malice rests with the plaintiff. To show malice, the plaintiff must show either that the statements were made with knowing falsity, in bad faith, or with reckless disregard of the truth.

Applying this standard, the court concluded that the former employer and supervisors were protected by the qualified privilege with regard to information they shared in their references, and that the former worker had the burden of proving that the reference statements were made with malice. The court concluded that the former worker had produced no evidence to demonstrate that any of the statements had been made with malice. With regard to the supervisor who stated that the worker was “wholly incompetent” and “ineligible for rehire,” the court observed:

[The supervisor’s] statement was made on the basis of her knowledge of plaintiff’s work and the circumstances surrounding his departure. She believed her statements to be true. Therefore, her statements were not knowingly false nor made in bad faith or reckless disregard of the truth. Moreover, [her] evaluation of plaintiff as “wholly incompetent” is a non-actionable statement of opinion. Accordingly, plaintiff cannot overcome the qualified privilege ….

The court reached the same conclusion with respect to the statements made by the other supervisor. It noted that the worker walked off the job without any advance notice or warning, and that he had documented problems with co-workers. Accordingly, the statements that he was “undesirable as a candidate for hire” and had “personality conflicts” with co-workers were true. Further, they were statements of opinion and as such could not be the basis for defamation. Finally, the court rejected the worker’s claim that his former employer’s evaluation of his performance as “OK” contradicted the supervisors’ statements that he would not be eligible for rehire. The court observed: “The circumstances of his departure from [his former employer] surely make him an undesirable candidate for rehire. Contrary to [his] contention that [his former employer’s] seemingly contradictory statements are evidence of bad faith, the record indicates that [the former employer and its supervisors] were simply trying to be charitable in evaluating [his] performance as ‘OK.'” This case illustrates three important principles that are of relevance to church leaders. First, truth is a defense to defamation. The statements made by the former supervisors were true, and could be documented to be true. Second, statements of opinion (as opposed to statements of fact) ordinarily cannot be defamatory. And third, in many states, employers are protected by a qualified privilege when giving references on former employees. This qualified privilege, where applicable, generally prohibits the employer from being guilty of defamation unless the former employee can prove that statements of fact given by the employer in a reference were false, and made with malice. Malice generally is interpreted to mean that the employer either knew the statements were false, or that it made them with a reckless disregard as to their truth or falsity. Note that not all states recognize the qualified privilege. As a result, employers should not make potentially defamatory statements about former employees without the advice of a local attorney. Hargrow v. Long, 760 F. Supp. 1 (D.D.C. 1991).

Termination of Employees

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided 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. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m42 m61 m53 c0691

Legal Developments

Personal Injuries – Part 4

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Defamation, Invasion of Privacy, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1990-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a youth pastor be sued for publicizing information regarding an alleged illicit affair between an associate minister and a church employee? Yes, concluded a Maryland state court. The employee had been raised in the church, and had been active in church work. When she became old enough, she volunteered to work with the church youth group, and with a traveling drama group. The drama group was under the direction of the associate pastor, with whom the employee worked very closely. She accompanied the group for four months each year as a counselor. When she graduated from college, she was hired by the church as the associate director of youth ministry (a salaried position). Because she continued to work with the drama group on a volunteer basis, the employee worked for both the associate minister and youth minister. While she was on a church-sponsored trip to the Holy Land (led by the associate minister), the youth minister entered her office to look for a file he needed. While there, he discovered a file containing personal notes from the associate minister to the employee. The notes confirmed the youth minister’s growing suspicion that the two were engaged in a sexual relationship. He immediately shared the notes with the associate minister’s wife, and offered specific details of when and where he believed the two had met privately. A few days later, the youth minister shared his allegations with the employee’s mother, and suggested to her that her daughter and the associate minister may not return from their trip overseas. The associate minister’s wife discussed the allegations with her husband, and concluded that the relationship was not sexual in nature. The youth minister accepted the wife’s decision, and retracted his allegations. He apologized to the associate minister and the female employee for the pain he had caused them, and promised never to repeat his suspicions again. Despite his promise, the youth minister soon repeated his suspicions to members of the drama group, and in very little time the entire congregation was aware of the allegations. Soon the employee began receiving unsettling telephone calls and mail from church members. Eventually, the church convened a special committee that investigated the matter and dismissed the employee. Subjected to scorn in her church and neighborhood, and unable to find a job commensurate with her skills, the former employee sued the youth pastor for defamation of character and invasion of privacy. She also sued the church, claiming that by dismissing her it had “ratified” the youth pastor’s allegations. A jury awarded the former employee $230,000 in general damages, and an additional $105,000 in “punitive damages”. Both the youth pastor and church appealed, and a state appeals court upheld the jury’s verdict. The court acknowledged that a plaintiff suing a “public figure” (such as a pastor) for defamation of character must prove not only that the pastor publicized false statements that injured the plaintiff’s reputation, but also that the defendant acted with “malice”. Malice in this context means that the defendant either knew that the statements he uttered were false, or that he uttered them with a reckless disregard as to their truth or falsity. The court concluded that the former employee had established that the youth pastor acted with malice—since he had repeated statements that he had acknowledged were not true. St. Luke Evangelical Lutheran Church v. Smith, 568 A.2d 35 (Md. 1990).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided 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. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m29 c0390

Legal Developments

Clergy – Part 2

Removal

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1990-05-01 Recent Developments

Clergy – Removal

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

• Can two dismissed co-pastors sue their church and denomination for breach of contract, defamation, and emotional distress? No, concluded an Ohio state appeals court. The co-pastors (who were husband and wife) were hired by a Christian Church (Disciples of Christ) pursuant to a contract specifying that their “ministry shall be terminated upon ninety days notice by either party.” The co-pastors filed a lawsuit following their termination. They alleged that (1) the church had assured them both orally and in writing that they would be retained as co-pastors for “seven to ten years,” and that their termination violated this assurance; (2) the denomination published defamatory remarks concerning their ministerial conduct and financial misdealings; and (3) the church caused them severe emotional distress by having them removed from before the congregation be police officers. The church and denomination filed a “motion to dismiss,” claiming that the court had no legal authority to resolve a purely internal church dispute. A trial court granted the motion to dismiss the case, and the fired co-pastors appealed. The appeals court acknowledged that a dismissal of a lawsuit is an extraordinary action that is appropriate only if it appears beyond a reasonable doubt that a plaintiff has alleged no facts which would entitle him or her to relief. The court concluded that this standard was satisfied in the present case. It began its opinion by noting that the United States Supreme Court “has established the general rule that religious controversies are not a proper subject of civil court inquiry, and that a civil court must accept ecclesiastical decisions of church tribunals as it finds them.” Applying this test, the court concluded that all of the former co-pastors’ claims involved “internal church discipline governed by ecclesiastical rule, custom, and law” since “review of subjective judgments by religious officers and bodies, such as involuntary termination of co-pastors, necessarily requires inquiry into ecclesiastical matters.” Civil courts “cannot constitutionally intervene in such a dispute.” The same logic applied to the claim of defamation, since such a claim would require the courts to “inquire into the truth or falsity of the statements made” by church and denominational officers and would “require review of subjective judgments made by religious officers and bodies concerning [the former co-pastors’] conduct of the pastorate and financial misdealings. Inquiry would be ecclesiastical in nature and constitutionally prohibited.” Finally, the court rejected the former co-pastors’ claim of emotional distress resulting from their removal from the congregation by police officers. It noted that the civil courts could not inquire into the propriety of the co-pastors’ dismissal, and therefore their church “could use any legal means to prevent them from gaining access to church property” (including use of police officers). Salzgaber v. First Christian Church (Ohio App. unpublished opinion 1989).

Legal Developments

Clergy – Part 2

Removal

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Defamation

Church Law and Tax 1990-03-01 Recent Developments

Clergy – Removal

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

• A federal appeals court ruled that civil courts lack authority to resolve disputes between dismissed clergy and their former church or denomination. A minister who had served for 40 years within the Christian and Missionary Alliance (CMA) was dismissed. He sued the CMA, claiming that his dismissal violated established procedures set forth in the CMA bylaws. He alleged that his dismissal violated various “contract and property rights,” injured his reputation, and ruined his emotional health. He demanded $1 million in damages (his wife sought an additional $200,000). A federal district court granted the CMA’s motion to dismiss, and the ex-minister appealed. A federal appeals court upheld the lower court’s dismissal of the lawsuit. The court rejected the ex-minister’s claims that (1) his “due process rights” had been violated by the CMA’s alleged failure to abide by its own bylaws, and (2) his dismissal violated various state and federal labor laws. The court concluded that the first amendment guaranty of religious freedom prevents the civil courts from resolving lawsuits brought by dismissed ministers against former churches or denominations “however a lawsuit may be labelled.” In other words, the fact that a dismissed minister alleges breach of contract, defamation, emotional distress, or similar “secular” theories of liability will not enable the civil courts to resolve what in essence is a dispute between a minister and his or her church or denomination. The court observed: “However a suit may be labelled, once a court is called upon to probe into a religious body’s selection and retention of clergymen, the first amendment [guaranty of religious freedom] is implicated …. The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.” The court concluded: “At bottom, [the ex-minister’s] complaint directly involves, and would require judicial intrusion into, rules, policies, and decisions which are unmistakably of ecclesiastical cognizance. They are, therefore, not the federal courts’ concern …. The [church’s] own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention. It is well-settled that religious controversies are not the proper subject of civil court inquiry. Religious bodies must be free to decide for themselves, free from state interference, matters which pertain to church government, faith, and doctrine.” Quoting a decision of the United States Supreme Court, the court observed that it was obligated to accept a church’s decisions “on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” The court’s decision is reinforced by the fact that it was upholding the lower court’s order dismissing the lawsuit. Under federal law, a motion to dismiss may be granted only if the allegations in the plaintiff’s complaint, accepted as true, state “no set of facts which might entitle the plaintiff to relief.” The court’s dismissal of this lawsuit under this minimal standard of review adds force to its conclusions. Natal v. Christian and Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989).

See also Constitutions, bylaws, and charters, Frankel v. Kissena Jewish Center, 544 N.Y.S.2d 955 (1989); Personal injuries—on church property or during church activities, Erickson v. Christenson, 781 P.2d 383 (Or. App. 1989).

Legal Developments

Clergy – Part 7

Discipline and Dismissal

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Defamation, Invasion of Privacy

Church Law and Tax 1990-01-01 Recent Developments

Clergy – Discipline and Dismissal

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

• In a significant decision, a California appeals court ruled that a priest could not sue his bishop and diocese for firing him in violation of church procedures. The priest had been appointed by his bishop as an administrator of a local church. He alleged that his bishop had (1) falsely accused him of “social misconduct,” (2) suspended him from his duties as a priest in violation of canon law, and (3) assisted in disclosing his psychiatric records (which revealed that he had received electrical shock treatments for schizophrenia) to other persons in a concerted effort “to discredit him and destroy his ability to obtain employment within the church.” The priest sued his bishop and diocese, alleging invasion of privacy, defamation, infliction of emotional distress, and wrongful termination. The court began its opinion by observing that “the civil courts will not intrude into the church’s governance of religious or ecclesiastical matters, such as theological controversy, church discipline, ecclesiastical government, or the conformity of members to standards of morality.” However, it also observed that churches “are as amenable as other [organizations] to rules governing property rights, torts and criminal conduct.” The difficulty of course comes in deciding whether a particular dispute is “ecclesiastical” in nature or is simply an ordinary lawsuit involving property matters or torts in which church officials happen to be involved.

Legal Developments

Civil Court Could Resolve a Lawsuit Brought by One Minister Against Another Minister Alleging Defamation

Can the civil courts resolve a lawsuit brought by one minister against another minister alleging

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Defamation, Invasion of Privacy

Can the civil courts resolve a lawsuit brought by one minister against another minister alleging defamation, invasion of privacy, and intentional infliction of emotional distress? That was the difficult question before a Louisiana state appeals court.

In July of 1986, televangelist Jimmy Swaggart allegedly accused another minister, Marvin Gorman, of committing immoral acts with several women over a period of years. On July, 16, 1986, Gorman resigned his church, and in August he was formally dismissed as minister by his denomination. Despite the dismissal of Gorman as a minister by both his local church and denomination, Swaggart and other defendants allegedly continued to make statements casting doubt on the moral character of Gorman, and these statements were circulated to pastors and churches of other denominations as well as to the public at large.

Gorman sued Swaggart and a number of other defendants, charging them with defamation, invasion of privacy, and intentional infliction of emotional distress. Swaggart responded by arguing that the civil courts had no power to resolve internal church disputes. A trial court agreed with Swaggart, and then Gorman appealed the case to a state appeals court.

The appeals court ruled that the trial court had erred in dismissing the lawsuit. It acknowledged that the constitutional guaranty of religious freedom forbids the civil courts from interfering "in matters of religious discipline, faith, or custom, as well as to the appointment and removal of ministers." However, it noted that "there are limits to this prohibition, and in those cases where religious doctrine is not involved … civil courts retain the power to resolve disputes."

This was just such a case, the court concluded, since "Gorman clearly is not disputing his dismissal as a minister. How could he, when his voluntary resignation predated his formal dismissal?" But eve more important, observed the court, was the fact that "Gorman's suit alleged defamatory acts which occurred outside" his church and denomination after he had been formally dismissed as a minister. "Even were we to find that the defendants' post-dismissal statements were legitimately part of the internal church discipline, there is a serious question as to whether the first amendment's protection would extend to those statements allegedly made to the press, the general public, and pastors of other denominations."

The court concluded that the statements made to persons outside of Gorman's church and denomination took the case beyond the scope of an internal religious matter: "This court may be powerless to interpret the religious doctrine which defendants claim compelled them to publicize their accusations to other members of their church, however, this does not mean they can make those accusations outside their church and not face the legal consequences." The court rejected the claim that Swaggart and the other defendants were entitled to publicize statements regarding Gorman to the "church at large" (referring to all Christians of whatever persuasion).

This case demonstrates the caution that should be employed when disseminating the causes of disciplinary action. If disciplinary action is taken against a minister or church member, extreme care must be taken not only in the content of any explanatory statements, but also in the audience to whom such statements are made. Clearly, statements to persons outside the church or denomination involved must be avoided, and protections should be used even in disseminating information to these restricted audiences to insure that the information is not circulated beyond those with a legitimate right to know.

Gorman v. Swaggart, 524 So.2d 915 (La. App. 4th Cir. 1988)

Legal Developments

Court Rejected Church’s Claim that the Guaranty of Religious Freedom Prevents Ministers from Being Sued for Defamatory Statements

A minister of the Worldwide Church of God wrote an article in a church publication

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Defamation, Freedom of Religion

A minister of the Worldwide Church of God wrote an article in a church publication that addressed the Church's newly developed and misunderstood doctrine on divorce and remarriage. The article contained statements that allegedly defamed the former spouse of a prominent Church official.

The court concluded that "our accommodation of the competing interests of our society—one protecting reputation, the other, the free exercise of religion—requires that we hold that in order for a plaintiff to recover damages for defamatory remarks made during the course of a doctrinal explanation by a duly authorized minister, he or she must show, by clear and convincing evidence, that the defamation was made with `constitutional malice,' that is with knowledge that it was false or with reckless disregard of whether it was false or not." Such a rule, observed the court, "strikes an appropriate balance between our citizens' reputational interests and our society's interest in protecting the right to free exercise of religion."

The court rejected the Church's claim that the constitutional guaranty of religious freedom prevents ministers from ever being sued for defamatory statements made in the course of doctrinal explanations. Such suits are constitutionally permissible, concluded the court, but a plaintiff has the difficult burden of proving "malice" by "clear and convincing evidence."

The court's ruling does not address the related issue of liability for allegedly defamatory nondoctrinal articles contained in church or denominational publications. For example, is it defamatory for religious denominations to state in a denominational publication that a particular minister has been disciplined or dismissed? This significant issue has been addressed by other courts . McNair v. Worldwide Church of God, 242 Cal. Rptr. 823 (2d App. Dist. 1987)

Legal Developments

Jehovah’s Witness congregation could not sue the church for defamation

The Montana Supreme Court ruled that a husband and wife who had been "disfellowshipped" from

Richard R. Hammar, Attorney, CPA

Bio

State: Montana
Categories: Defamation, First Amendment

The Montana Supreme Court ruled that a husband and wife who had been "disfellowshipped" from a Jehovah's Witness congregation could not sue the church for defamation.

The couple had been disfellowshipped for marrying contrary to church doctrine. In announcing the decision to the congregation, the overseer remarked that the couple had been living in adultery according to church teachings and had been disfellowshipped for "conduct unbecoming Christians." The overseer added that "we got the filth cleaned out of the congregation, now we have God's spirit."

The court concluded that such comments were not defamatory since they were privileged and protected by the constitutional guaranty of religious freedom. As to the defense of privilege, the court remarked that "it is firmly established that statements of church members made in the course of disciplinary or expulsion proceedings, in the absence of malice, are protected by a qualified privilege." The remarks of the overseer were privileged, concluded the court, and did not involve malice since "malice is defined as reckless disregard for the truth [and] does not include hatred, personal spite, ill-will, or a desire to injure."

The court added that it "would be violating the [church's] right to free exercise of religion if [it] were to find [the church's] statements actionable under state defamation law." Rasmussen v. Bennett, 741 P.2d 755 (Mont. 1987).