Church School Not Liable for Alerting Parents of Fired Coach’s Ban from Campus

Invasion of privacy claim failed because of how the school handled public messages about former employee.

Bio

State: Michigan
Categories: Invasion of Privacy

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.

A Michigan court ruled that a church school did not commit “false-light” invasion of privacy by its disclosure to parents that a coach had been terminated because of unprofessional conduct.

An errant photo leads to investigation, termination, and forced retirement

The plaintiff held two jobs: one in ministry with a Michigan Diocese and one at a Catholic high school as the boys’ varsity tennis coach.

One day after taking a shower, the plaintiff texted one of his players to bring “a pair of shoes belonging to another player” to that day’s practice. The plaintiff later alleged that, soon after sending the initial text, he went to check to see if the player responded and instead accidentally sent a nude picture of himself to the player. The plaintiff then attempted to call and text the player to explain what had happened.

One of the plaintiff’s text messages stated: “… Delete and disregard the prior pic!! I took it accidentally after getting out of the shower and texting you about the players shoes. Again, please delete and ignore!!! A complete accident!”

The plaintiff followed this message with another asking, “Please acknowledge!!”. The plaintiff received no response from the player but still hoped to speak with him before that afternoon’s tennis practice.

Later that day, the plaintiff received a phone call from the Diocese’s human resources director telling him he’d been placed on administrative leave and should avoid coming to his office.

The plaintiff later surrendered his phone to the police and was later told by his supervisor that he “had 24 hours to either resign or be terminated.”

The plaintiff was never charged by police and retired from his position with the Diocese effective October 16, 2017.

The next day, the school’s athletic director emailed the plaintiff to tell him the school would not be bringing him back as a tennis coach for the remainder of the tennis season and that plaintiff’s contract would not be renewed.

About six months later, the plaintiff “stopped by” the school’s tennis courts. Several players witnessed his presence, and he encountered a former student who asked him why he was there and remarked that she thought he was banned from the campus. A few days later, the plaintiff received a text message from the school asking him to not come to the school or attend any tennis matches.

The next day, the school’s principal alerted tennis team parents via email that the plaintiff had shown up at tennis practice, that he had been fired for inappropriate behavior, and that he had agreed to stay off of school grounds, not interact with students nor attend any boys or girls tennis matches, whether at home or away.

In April 2019, the plaintiff sued the diocese, high school, and bishop (the “defendants”) for “invasion of privacy false light.” The trial court dismissed the plaintiff’s claim, and the plaintiff appealed.

“False-light invasion of privacy” not in play

The Michigan Court of Appeals began its opinion by observing:

The tort of invasion of privacy is based on a common-law right to privacy, which is said to protect against four types of invasion of privacy: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

In order to maintain an action for false-light invasion of privacy, a plaintiff must show that the defendant broadcast to the public in general, or to a large number of people, information that was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position.

Further, the defendant must have known of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. A plaintiff claiming false-light invasion of privacy must prove that the defendant acted with malice.

The appeals court rejected the plaintiff’s claim of false-light invasion of privacy because (1) the defendants said nothing that was false regarding the plaintiff, and (2) the defendants did not act with malice. In this context, malice means that the defendants knew that what they said about the plaintiff was false or they acted with a reckless disregard as to its truthfulness.

What this means for churches

Church leaders should be familiar with the concept of invasion of privacy. According to many courts, invasion of privacy consists of four distinct violations of a person’s privacy:

(1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs;

(2) public disclosure of embarrassing private facts about the plaintiff;

(3) publicity that places the plaintiff in a false light in the public eye; and

(4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

This case addressed the third variant of invasion of privacy—publicity that places the plaintiff in a false light in the public eye.

Under this variant, the court noted false-light invasion of privacy consists of the following elements:

dissemination to a large number of persons,

of information that was unreasonable and highly objectionable,

by attributing to the plaintiff characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position, and

the defendant acted with malice, meaning that the defendant must have known of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.

Church leaders should become familiar with these elements and carefully word any public messages about current or former pastors, employees, or members. For instance, in a 1997 case, a court found a minister placed a female member of the congregation in “false light,” based on the way the minister described a sexual relationship the woman had with another pastor.

Landfair v. Catholic Diocese, 2022 WL 413623 (Mich. App. 2022)

Legal Developments

Pastor Who Revealed Child’s Suicide During a Funeral Sermon Can’t Be Sued

Court: Ecclesiastical abstention doctrine bars lawsuit from the mother of deceased son.

Richard R. Hammar, Attorney, CPA

Bio

State: Michigan
Categories: Invasion of Privacy, Judicial Resolution of Church Disputes

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 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.

A Michigan appellate court affirmed a lower court’s ruling that the mother (the “plaintiff”) of a suicide victim was barred by the ecclesiastical abstention doctrine from suing a pastor who, contrary to her insistence upon confidentiality, still disclosed the suicide during the victim’s funeral homily.

Background

In early December 2018, a young man committed suicide. This fact was not publicly disclosed or known to anyone but close family and friends.

The day after their son’s death, the decedent’s parents went to their church and spoke with the pastor to plan their son’s funeral. The pastor informed them that he could conduct a funeral service just a few days later and discussed the format of the service with them.

The parents advised the pastor that they “wanted to celebrate their son’s life and asked that the homily be positive, uplifting, and focused on the importance of kindness.” The pastor agreed to conduct the service in the manner the parents requested.

At no point did the parents inform the pastor that their son had committed suicide, nor did the pastor state he was aware of their son’s cause of death.

On the day of the funeral, “numerous family members, friends, classmates, and community members were in attendance.” The service began and continued as expected until the pastor gave his homily. At that point, the pastor informed those in attendance that the deceased had committed suicide.

According to the plaintiff, “[m]any in attendance . . . immediately became upset and burst out crying.” The pastor’s discussion of suicide stated that it was “condemned by the Church,” a “secular crime,” and “a sin against God with dire eternal consequences.”

As the pastor’s sermon progressed, the deceased’s father approached the pulpit and “pleaded” with the pastor to stop his discussion of suicide. But the pastor did not relent and “openly questioned the eternal fate” of the deceased.

The ecclesiastical abstention doctrine

The plaintiff sued the pastor, church, and archdiocese (the “church defendants”) alleging five bases of liability: (1) intentional infliction of emotional distress; (2) misrepresentation; (3) invasion of privacy; (4) vicarious liability; and (5) negligent hiring, supervision, or retention.

The church defendants asked the court to dismiss the case, arguing that the plaintiff’s claims were barred by the ecclesiastical abstention doctrine because they involved questions of ecclesiastical polity. The church defendants also argued that the pastor’s homily constituted protected speech and, even if the plaintiff’s claims could be adjudicated, they failed as a matter of law.

The plaintiff insisted that the ecclesiastical abstention doctrine did not apply because this case concerned the pastor’s conduct, “not the Church’s creed,” his speech was not protected, and the plaintiff sufficiently stated valid claims against each defendant. The trial court concluded the ecclesiastical abstention doctrine “clearly” applied to the pastor’s sermon and dismissed the lawsuit. The plaintiff appealed.

The appeals court noted this about the ecclesiastical abstention doctrine:

Our Supreme Court has stated that the applicability of the ecclesiastical abstention doctrine in Michigan

reflects [the] Court’s longstanding recognition that it would be “inconsistent with complete and untrammeled religious liberty” for civil courts to “enter into a consideration of church doctrine or church discipline,” to “inquire into the regularity of the proceedings of church tribunals having cognizance of such matters,” or “to determine whether a resolution was passed in accordance with the canon law of the church, except insofar as it may be necessary to do so, in determining whether or not it was the church that acted therein.”

Under the ecclesiastical abstention doctrine, a civil court cannot “substitute its opinion in lieu of that of the authorized tribunals of the church in ecclesiastical matters.” Therefore, the ecclesiastical abstention doctrine “operates to ensure that, in adjudicating a particular case, a civil court does not infringe the religious freedoms and protections guaranteed under the First Amendment.” But the doctrine does not “purport to deprive civil courts of the right to exercise judicial power over any given class of cases.” . . . “What matters instead is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions; if so, the court must abstain from resolving those questions itself, defer to the religious entity’s resolution of such questions, and adjudicate the claim accordingly.” Thus, the ecclesiastical abstention doctrine “requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place” [citations omitted].

The appeals court concluded that the trial court did not err when it decided the ecclesiastical abstention doctrine barred the plaintiff’s claims. Any attempt to resolve the plaintiff’s claims would require decisions regarding matters of church doctrine and polity, which the doctrine prohibits.

The plaintiff had argued that her lawsuit did not seek resolution of religious issues. Rather, she asserted her claims “concern an agreement by [the pastor] to preside over the funeral service for her son—for which [the pastor] was compensated through a donation—in accordance with requests from the family regarding the content of the funeral service.”

But the actual adjudication of each of the plaintiff’s claims “would require an inquiry into religious doctrine and practices regarding sermons and funeral services, suicide, as well as why [the pastor] chose the words that he did, and personnel issues regarding hiring practices of the Catholic Church,” the appeals court said.

The appeals court addresses each claim

The appeals court still briefly addressed each of the plaintiff’s claims.

Infliction of emotional distress

In the trial court, the plaintiff had argued that the pastor’s behavior at the funeral amounted to an “intentional infliction of emotional distress.”

To establish a claim for intentional infliction of emotional distress, a plaintiff must prove that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.

The defendant’s conduct must be “so extreme in degree,” as to go “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The trial court concluded that the church’s conduct did not meet this strict standard. It also ruled that this claim was barred by the ecclesiastical abstention doctrine.

The appeals court concluded that the trial court properly applied the ecclesiastical abstention doctrine to bar the plaintiff’s claim for intentional infliction of emotional distress.

It stressed that “to find that the content of [the pastor’s] homily at the funeral regarding the suicide of the plaintiff’s son was ‘extreme’ or ‘outrageous’ would require the trial court to evaluate Catholic philosophy and doctrine regarding suicide, and whether [the pastor] complied with it.” It would also require “evaluation of procedures for developing and providing religious sermons, which are unequivocally ecclesiastical in nature.”

Misrepresentation and invasion of privacy

The appeals court said the trial court had not erred “when it concluded the ecclesiastical abstention doctrine barred plaintiff’s claims of misrepresentation and invasion of privacy.”

The plaintiff’s claim alleged, in part, that the pastor agreed to deliver a positive, uplifting sermon but, instead, spoke about “the nature of her son’s death,” and how it constituted a sinful act that brought into question “her son’s eternal salvation.”

Further, the plaintiff asserted the pastor “should have known that the cause of death ‘was a personal matter and not of public concern,’ and disclosure of the cause of death ‘was not consistent with any legitimate pastoral duty and/or concern to the public.’”

In rejecting both the misrepresentation and invasion of privacy claims, the appeals court stated:

[A]s with plaintiff’s claim of intentional infliction of emotional distress, evaluation of her misrepresentation and invasion-of-privacy claims requires an inquiry into the decision-making process behind drafting and giving religious sermons, as well as into Catholic doctrine and teachings regarding suicide. . . . [T]he trial court properly concluded that resolution of these claims would require evaluating religious doctrines and, by extension, trigger the ecclesiastical abstention doctrine.

Additionally, regarding the invasion of privacy claim, the appeals court referenced a 1991 Michigan Supreme Court opinion that cited this passage from the Restatement Torts, 2d:

The right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. The cause of action is not assignable, and it cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his.

The appeals court then stated it agreed with the trial court’s conclusion:

Consequently, the trial court was correct in concluding that the plaintiff had no cognizable privacy interest in the fact that her son committed suicide.

Vicarious liability and negligent hiring, supervision, or retention

The appeals court concluded that the ecclesiastical abstention doctrine also precluded the plaintiff’s claims for vicarious liability and negligent hiring, supervision, or retention.

Under the claim of vicarious liability, the plaintiff alleged, in part, that the pastor was under the supervision and control of the archdiocese and he “act[ed] in his special role of priest and adviser, using the premises of the Archdiocese’s parish,” and the “trust, power and the authority his position granted him.”

And, under the claim for negligent hiring, supervision, and retention, the plaintiff alleged that the pastor was “unfit and/or incompetent to perform” his pastoral duties and that the archdiocese “knew, or should have known, that he previously engaged in similar conduct as that alleged [by the plaintiff].” The plaintiff alleged that despite the archdiocese’s knowledge of the pastor’s incompetence, it still “hired, supervised, and retained him as the pastor of [the church].”

In response, the appeals court stated:

As [the church] defendants point out, however, “[t]he Roman Catholic Church is an hierarchical organization and the Bishop’s power to make assignments of ministers to a parish is certainly a matter of ecclesiastical polity in which the courts may not interfere.” . . . This point has been repeatedly reaffirmed by other Courts. . . . [T]he “authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.”

As a result, the appeals court said, the trial court properly dismissed the plaintiff’s claim involving the hiring, supervision, and retention of the pastor “as those decisions by the Church are constitutionally protected.”

The appeals court also rejected the vicarious liability claim, noting the pastor’s “actions were constitutionally protected, and there can be no liability for a principal if the agent has committed no actionable wrong.”

Final conclusion

In sum, the appeals court concluded:

[The pastor’s] conduct was protected by the ecclesiastical abstention doctrine. As such, we cannot pass judgment on the content of his sermon. Consequently, all of plaintiff’s claims necessarily fail.

What this means for churches

Pastors sometimes say things in a sermon that offend some listeners. This case demonstrates that such offenses generally will not expose the pastor or church to liability because of the ecclesiastical abstention doctrine, which bars the civil courts from resolving internal church disputes involving doctrinal issues.

It is also important to note, as this appeals court observed, that “invasion of privacy” is a personal right, “peculiar to the individual whose privacy is invaded,” and therefore “cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his.”

Hullibarger v. Archdiocese, 2021 WL 2877973 (Mich. App. 2021)

Legal Developments

Publishing Others’ Information

Case suggests a church may be liable on the basis of invasion of privacy for publishing a “prayer list”

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Invasion of Privacy

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.

A federal district court in Virginia ruled that an insurance company that posted confidential medical records online without security restriction gave "unreasonable publicity" to, and "disclosure" of information about, patients' private lives.

This case suggests that a church may be liable on the basis of invasion of privacy to publishing a "prayer list" in a church bulletin, newsletter, website, or some other resource that contains the names and medical conditions of church members who are either hospitalized or ill.

To illustrate, in another case, a church music director was hospitalized for severe depression. During the period of his hospitalization, the church placed him on a medical leave of absence, and an acting music director was appointed. A few months later, the music director was again hospitalized following a suicide attempt.

A few days after the music director was discharged from the hospital, the church posted an article on its website that contained the following statements: "We have good news for you! Our music director is returning to the church after a long medical leave of absence. Since the summer of last year, he has been treated for bi-polar illness, a condition which at times has resulted in serious depression for him. Various therapies and medications have been tried, and finally, after much experimentation, his health has improved considerably. For that we are all very happy."

The music director was dismissed by the church, and he filed a lawsuit claiming that his dismissal amounted to wrongful discrimination based on disability. He also claimed that the church "invaded his privacy" by printing the notice on the church website regarding his hospitalization and medical condition. A trial court dismissed the privacy claim, but a state appeals court reversed this ruling and ordered the case to proceed to trial. It observed, "The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned." The court concluded:

The comments made on the church's website were based purely on the music director's private affairs, i.e. his hospitalization for depression. While he did inform those necessary persons about his condition—the pastor and a few close friends who belonged to the church—this cannot be seen as a waiver to enter his private life … . While the church's publication could be based upon informing the congregation of the music director's return to the church, the inclusion of the additional personal information about his bi-polar illness could be viewed as offensive or objectionable to a reasonable person. Therefore … the trial court erred by granting summary judgment based on this claim. Mitnaul v. Fairmount Presbyterian Church, 778 N.E.2d 1093 (Ohio App. 2002).

What this means for churches

These cases demonstrate the potential liability churches face when they publish information on their websites, or in church bulletins or newsletters, concerning the health condition of employees or church members. In order to eliminate this risk, these kinds of disclosures should not be made without consent, even if the purpose is to call the congregation to pray for the individuals. Consent may be obtained in various ways. It can be "express," meaning that no information about the health condition of a member or employee is published by the church in any form without that person's signed consent.

Obviously, larger churches would find it difficult to obtain the express written consent of every member or employee who is ill or hospitalized.

A second type of consent is "implied" consent. This can be obtained by publishing occasional notices in church publications (newsletters, bulletins, websites, and so on) advising members that prayer lists are compiled by the church that contain the names and medical conditions of persons who are known to be hospitalized or ill, and advising members who do not want their name and medical condition published on church prayer lists to so inform the pastor or church office. A list should be made of persons who object to being included on such lists. The same kind of notice can be published in an employee handbook or policy manual. Implied consent is not as effective as express consent, since a member can always claim that he or she did not see any of the notices printed by the church. But, implied consent is obviously easier to obtain. Travelers Indemnity Company v. Portal Healthcare Solutions, 35 F.Supp.3d 765 (E.D. Va. 2014).

Legal Developments

Privacy on Church Devices

Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Invasion of Privacy

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 8-29. Employees may have a limited right of privacy in their workspace that may extend to the contents of their desk and cabinet drawers, and employer-provided computers. This right of privacy can be superseded by a policy that clearly authorizes the employer to inspect these items.

A federal district court in California ruled that an employer did not commit an invasion of privacy by reading text messages and email that were accessible on a former employee's employer-provided cell phone following his dismissal.

An employee ("Gary") of a for-profit business (the "defendant") informed his employer that he had taken a job with one of its competitors. Upon learning of Gary's intent to pursue other employment, the defendant immediately dismissed him.

While employed with the defendant, Gary was assigned a company-owned iPhone and iPad for both work and personal purposes. Thereafter, Gary created and paid for a personal Apple account that was linked to both devices. He returned both devices to the defendant after his termination.

Gary's new employer provided him a new iPhone. At some point thereafter, Gary registered or linked his new iPhone to the same personal Apple account he had previously used while working for the defendant. This process "synced" the new iPhone with Gary's personal Apple account.

Several weeks later, when he received a new iPad from his new employer, Gary linked the new iPad to his personal Apple account. In the process of registering the iPad, he discovered the telephone number associated with his former iPhone was still linked to his personal Apple account. Because he had failed to unlink the former iPhone from his account, his private electronic data and electronic messages, including text messages sent to and from his new iPhone, also were transmitted to the previous iPhone which he had returned to the defendant. Gary then deleted the old iPhone number from his account to ensure that his new Apple products were not in any way linked to the old account.

Gary claimed that after his departure, the defendant began actively investigating his post-employment acts, conduct, and communications. In the course of its investigation, the defendant allegedly invaded his privacy by accessing, intercepting, monitoring, reviewing, storing and using his post-employment private electronic data and electronic communications (including but not limited to text messages sent and received from his new iPhone) without consent.

Based on its investigation, the defendant sued Gary for breach of contract, misappropriation of trade secrets, and breach of the fiduciary duty of loyalty. Gary responded by counter-suing the defendant for invasion of privacy. The gist of the counterclaim was that the defendant improperly read the text messages that were inadvertently transmitted to his prior iPhone. The defendant asked the court to dismiss Gary's counterclaim.

Invasion of privacy for accessing Gary's personal text messages

The court began its opinion by noting that an invasion of privacy claim based on intruding upon another's seclusion has two elements: "First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person." The court added that invasion of privacy can occur "only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source."

Gary claimed that, as a matter of law, an employee has a reasonable expectation of privacy with respect to text messages contained on employer-owned mobile telephones, and he cited two cases in support of this conclusion.

(1) In City of Ontario v. Quon, 560 U.S. 746 (2010), a police officer was issued a pager by his police department which was subject to a limit on the number of characters that could be sent and received each month. After becoming concerned that the officer was repeatedly exceeding his character limit, the police department obtained transcripts of the text messages from the wireless carrier to ascertain whether the texts were work-related or personal. After finding that most of the text messages were not work-related, the police department took disciplinary action against the officer. The officer then sued the city and its police department alleging that the department's review of his text messages invaded his privacy. The United States Supreme Court assumed, without deciding, that the plaintiff had a reasonable expectation of privacy in text messages sent to him on an employer-provided pager. However, the Court ultimately upheld the police department's review of those messages as reasonable.

In summary, the Court ruled that employees have a legitimate expectation of privacy in employer-provided computer equipment, but that employer searches of such equipment are legally permissible so long as the employer (1) has a legitimate work-related reason for the search, and (2) the search was not excessively intrusive in light of that justification.

The district court concluded that the Quon case did not support Gary's claim that employees always have a legitimate expectation of privacy in their work-related computer equipment and cell phones that is violated whenever an employer examines the devices without consent.

(2) In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), a criminal defendant challenged the denial of his motion to suppress text messages and call records which law enforcement officials had obtained through a warrantless search of his employer-issued cell phone. A federal appeals court ruled that the mere fact that the employer owned the phone and had access to its contents did not demonstrate that defendant had no expectation of privacy in his call records and text messages. In reaching its decision, the court specifically noted that the defendant had undertaken precautions to maintain the privacy of data stored on his phone and that "he had a right to exclude others from using the phone." However, unlike the defendant in Finley, Gary was no longer an employee of the company which owned the cell phone to which the text messages had been sent. In addition, he had no right to exclude others from accessing [his old] iPhone—which he did not own or possess and no longer had any right to access. Moreover, rather than undertake precautions to maintain the privacy of his text messages, he did just the opposite by failing to unlink his old iPhone from his Apple account, which, in turn, facilitated the transmission of those messages to an iPhone exclusively owned, controlled, and possessed by his former employer.

The district court also noted that Gary's privacy claim failed because he did not show any intrusion into a "place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy":

He cannot legitimately claim an expectation of privacy in [his old iPhone] which belongs to his former employer and to which he has no right to access. Nor can he claim a reasonable expectation of privacy with respect to his text messages, in general. The pleadings do not identify the contents of any particular text messages, and instead, refer generally to "private electronic data and electronic communications." This and other courts have concluded that there is no "legally protected privacy interest and reasonable expectation of privacy" in electronic messages, in general. Rather, a privacy interest can exist, if at all, only with respect to the content of those communications. In any event, even if Gary were claiming an expectation of privacy with respect to the specific content of his text messages (which he has not specified), the facts alleged demonstrate that he failed to comport himself in a manner consistent with an objectively reasonable expectation of privacy. By his own admission, he personally caused the transmission of his text messages to the [old] iPhone by syncing his new devices to his Apple account without first unlinking his [old] iPhone. As such, even if he subjectively harbored an expectation of privacy in his text messages, such expectation cannot be characterized as objectively reasonable, since it was Gary's conduct that directly caused the transmission of his text messages to the defendant in the first instance … .

Gary also does not specify whether his claim is predicated upon text messages sent by him, received by him, or both. With respect to messages he transmitted, there is authority finding that a plaintiff has no reasonable expectation of privacy in messages sent to third parties … because he relinquished control of them once they were transmitted … .

The facts alleged in Gary's counterclaim are insufficient to show that the defendant intruded into his privacy in a manner highly offensive to a reasonable person. Invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. In addition, the plaintiff must show that the use of his information was highly offensive … . Here, Gary alleges only that the defendant acted in a "highly offensive" manner by "accessing, intercepting, monitoring, reviewing, storing and using [his] post-employment private electronic data and electronic communications without [his] knowledge, authorization or consent as part of an unreasonably intrusive and unauthorized investigation into his post-employment conduct." He offers no factual support for these conclusory assertions. In particular, he provides no details regarding the specific conduct by the defendant that amounts to "accessing, intercepting, monitoring, reviewing, storing and using [his] post-employment private electronic data and electronic communications." He also fails to offer any facts to establish that the defendant's use of the intercepted communications was highly offensive. The possibility that the defendant may have reviewed text messages sent to a cell phone which it owned and controlled—without more—is insufficient to establish an offensive use.

What this means for churches

This case illustrates the following points:

1. Employees have a legitimate expectation of privacy in employer-provided computers and cell phones, meaning that an employer may be liable on the basis of invasion of privacy for nonconsensual searches of such equipment.

2. But this expectation may be superseded in a couple of situations: First, the employer has a legitimate work-related reason for the search, and the search was not excessively intrusive in light of that justification. This was the conclusion reached by the United States Supreme Court in the Quon decision. Second, an employee's expectation of privacy in an employer-provided computer or cell phone is diminished, if not lost, when the employee's employment relationship is terminated.

3. An employee's expectation of privacy in employer-provided computers and cell phones ordinarily is lost if the employee consents to a search. Consent may occur in two ways. The Supreme Court noted in the Quon case that the city's computer policy was evidence that its inspection of pager messages was "not excessively intrusive." This is an important reason for churches to adopt a computer policy that informs employees that computers, pagers, and cell phones provided by the church are subject to inspection, and that clarifies that employees have no expectation of privacy with respect to the content of such devices.

The Supreme Court did not say that the mere existence of such a policy will be conclusive evidence that an employer's inspection of such devices will be reasonable. The contents of the policy, and the circumstances of each case, must be considered. But, churches will be in a better legal position with such a policy than without one.

Note that a computer policy authorizing employer searches of its equipment may not be legally enforceable if the policy is applied to employees hired prior to the creation of the policy. This is due to the contractual requirement of consideration. In order for a new policy to be enforceable, each party must receive something of value ("consideration") in exchange for his or her commitment to be bound by the policy. The requirement of consideration is what distinguishes contracts from gifts. In a gift, the recipient receives the benefit of the donated property without any value provided in return to the donor.

In the employment context, the commitment by employees to be bound by an employer's employment policies, including a computer policy, requires that they receive something of value ("consideration") in exchange for their commitment. When employees are hired, the fact of employment can constitute valid consideration for their commitment to be bound by the employer's employment policies, especially if this is properly articulated in documentation signed by the employees. Ideally, employees will sign a statement at the time of hire affirming that, in consideration of being hired, they agree to be bound by the current employee policy manual and any changes thereto. Before using this technique, be sure to consult with legal counsel in your state.

4. Some church employees own a laptop computer that they use, either occasionally or regularly, in their church office. The expectation of privacy is even higher for such computers, since they are owned by the employees. Sunbelt Rentals, Inc. v. Victor, 2014 WL 4274313 (N.D. Cal. 2014).

Legal Developments

Church Deacon Secretly Records Teenage Girls in His Bathroom

A 10-year sentence at hard labor stands up in court.

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

Key point. The use of hidden cameras to secretly record minors undressing in a restroom or locker room may result in criminal liability for the felony of video voyeurism.

A Louisiana court affirmed a sentence of 10 years at hard labor for a church deacon who made video recordings of teenage girls with a camera hidden in a bathroom in his home during a church youth retreat.

The deacon (the "defendant") hosted a weekend church retreat at his home. The retreat was for young female church members. Seven girls attended, all under the age of 17. Prior to their arrival, the defendant installed hidden video cameras in the bathroom the girls would be using during the weekend. During their stay, one of the girls discovered the camera and removed it. She alerted her parents. Several images of the girls had been recorded in various stages of undress and nudity. The authorities were notified.

A search warrant was issued for the residence, revealing pornographic material involving juveniles and adults. These images had been transferred to the defendant's personal computer, which had internet access.

The defendant was ultimately charged with a total of 21 counts. He pled guilty to two counts of video voyeurism in exchange for dismissal of the remaining charges. A pre-sentence investigation was ordered and a sentencing hearing was held in which impact statements were presented to the court on behalf of the defendant and the victims. A report by a psychologist stated that the defendant had been in treatment following discovery of the offenses, and that he suffered from severe depression. The defendant was sentenced to 10 years at hard labor. He appealed, claiming that his sentence was excessive and unreasonable.

In support of his appeal, the defendant noted that he was 55 years old at the time of the offenses and had no criminal history; he was active in his church, and gainfully employed; and, he was a full-time husband and father. The defendant claimed that the sentences placed undue hardship on his wife and family, who have forgiven him and have chosen to support him through this traumatic time. He also noted that he never had possession of or viewed the videos because the cameras were confiscated by one of the victims, and therefore the crime of video voyeurism was not completed.

A state appeals court rejected the defendant's claims, and affirmed the 10-year sentence at hard labor. It concluded: "The trial judge carefully considered the defendant's circumstances and mitigating factors presented by his family, including their statements regarding his good character and church leadership activities, as well as the statements from other church members and victims and their families. Considering the position of trust this defendant enjoyed with his fellow church families and their children and the betrayal of that trust as evidenced by statements from the victims' families during sentencing, [the sentence] was well within the trial judge's discretion. These sentences do not shock our sense of justice in this case, nor are they disproportionate to the severity of the offenses. The court noted that "statements made during sentencing referenced other atrocious activities of the defendant. For example, he taped a camera to his shoe at church to photograph up the girls' skirts." State v. Holmes, 130 So.3d 999 (La.App. 2014).

Legal Developments

Federal Court Rules Invasion of Privacy

Employer viewing employee’s Facebook page without permission is sued by employee.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Invasion of Privacy

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.

A federal court in New Jersey ruled that an employer may have invaded the privacy of an employee by accessing her Facebook account without permission.

A registered nurse and paramedic (the "plaintiff") worked for an emergency response company. She alleged that her employer retaliated against her as a result of her union activities. She maintained an account on Facebook, a social networking website. If someone was not invited to be her Facebook "friend," he or she could not access and view postings on her Facebook "wall." Many of her coworkers were invited to be her Facebook friends. She did not invite any members of her employer's management team as friends.

The plaintiff alleged that her employer "gained access to her Facebook account by having a supervisor summon an employee, who was also one of the plaintiff's Facebook friends, into an office" and "coercing and threatening the employee into accessing his Facebook account on the work computer in the supervisor's presence." The plaintiff claimed that the supervisor viewed and copied her Facebook postings accessed through the coworker's account. One such posting contained a highly offensive and derogatory comment that the supervisor forwarded to the state board of nursing. The supervisor alleged that the company was concerned that the plaintiff's Facebook posting showed a disregard for patient safety.

The plaintiff sued her former employer on the basis of several grounds, including a violation of a state wiretapping law, and invasion of privacy.

State wiretapping law

The plaintiff claimed that the employer violated the New Jersey Wiretapping and Electronic Surveillance Control Act ("NJ Wiretap Act") "by accessing without permission and improperly monitoring the electronic communications being stored on the plaintiff's Facebook account."

The NJ Wiretap Act provides that: "A person is guilty of a crime of the fourth degree if he (1) knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and (2) thereby obtains, alters, or prevents authorized access to a wire or electronic communication while that communication is in electronic storage." "Electronic storage," as used in the NJ Wiretap Act, is defined as: "(1) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (2) Any storage of such communication by an electronic communication service for purpose of backup protection of the communication."

Based on the definition of "electronic storage," New Jersey courts have held that the NJ Wiretap Act "protects only those electronic communications, which are in the course of transmission" and does not apply to electronic communications received by the recipient, placed in post-transmission storage, and then accessed by another without authorization because "the strong expectation of privacy with respect to communication in the course of transmission significantly diminishes once transmission is complete."

This is consistent with federal courts' interpretation of similar provisions of the federal Wiretap Act.

The court concluded: "In this case, plaintiff clearly failed to state a claim under the NJ Wiretap Act. She does not allege that her Facebook posting was in the course of transmission when the supervisor viewed it. To the contrary, her complaint clearly states that the posting was live on the Facebook website for all of plaintiff's Facebook friends to "access and view." Because the posting was in post-transmission storage when the supervisor accessed it, "this communication does not fall under the purview of the NJ Wiretap Act."

Invasion of privacy

The plaintiff also claimed that her employer's unauthorized "accessing of her private Facebook postings" amounted to an invasion of her privacy. The court rejected the employer's request to dismiss the claim. The court noted that "to state a claim for intrusion upon one's seclusion or private affairs, a plaintiff must allege sufficient facts to demonstrate that (1) her solitude, seclusion, or private affairs were intentionally infringed upon, and that (2) this infringement would highly offend a reasonable person." The court continued:

Privacy in social networking is an emerging, but underdeveloped, area of law. There appears to be some consistency in the case law on the two ends of the privacy spectrum. On one end of the spectrum, there are cases holding that there is no reasonable expectation of privacy for material posted to an unprotected website that anyone can view …. On the other end of the spectrum, there are cases holding that there is a reasonable expectation of privacy for individual, password-protected online communications …. Courts, however, have not yet developed a coherent approach to communications falling between these two extremes. Although most courts hold that a communication is not necessarily public just because it is accessible to a number of people, courts differ dramatically in how far they think this theory extends …. Most courts have adopted the concept of "limited privacy," which is "the idea that when an individual reveals private information about herself to one or more persons, she may retain a reasonable expectation that the recipients of the information will not disseminate it further."

In this case, plaintiff argued that she had a reasonable expectation of privacy in her Facebook posting because her comment was disclosed to a limited number of people who she had individually invited to view a restricted access webpage. The employer claimed that plaintiff cannot have a reasonable expectation of privacy because the comment was disclosed to dozens, if not hundreds, of people.

The court concluded: "Plaintiff has stated a plausible claim for invasion of privacy, especially given the open-ended nature of the case law. Plaintiff may have had a reasonable expectation that her Facebook posting would remain private, considering that she actively took steps to protect her Facebook page from public viewing."

What this means for churches

Church leaders should assume that employees' Facebook accounts are private, and that any unauthorized access may constitute an invasion of privacy for which monetary damages may be available. Such inspections or access should never be undertaken without legal advice. Ehling v. Monmouth-Ocean Hosp. Service Corporation, 872 F.Supp.2d 369 (D.N.J. 2012).

Legal Developments

Inspection of Church Membership Lists

When is a church required to turn over its membership list for inspection?

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Church Members, Invasion of Privacy

Key point 6-03.4. Church donor and membership lists are subject to government inspection, so long as the government has a compelling interest in obtaining this information.

A federal bankruptcy court ruled that a creditor was not entitled to obtain the names of the members of a church that was in bankruptcy. A financial institution (the "creditor") loaned money to a church that later filed for bankruptcy. The creditor asked the court to compel the church to disclose the identities and residential addresses of all of its members. A court declined to order the church to turn over its membership list, for two reasons.

Relevancy

The court concluded that the church's membership list was irrelevant to the creditor's desire to assess the church's ability to pay its debts:

At the core, discovery must focus on relevant information. The court fails to see how a membership list is relevant to [the creditor's] purposes. There may be members included on the list who have not stepped foot in the door in a decade, while there may be faithful attendees who are not members. While the court would not challenge that numbers relating to the congregants may be material, including the number of members on the roll, the number of people attending services, the number of those people who are financially supporting the church, the court cannot conclude that the actual membership list is relevant.

First Amendment

The court also ruled that the First Amendment guaranty of religious freedom prevented the creditor from obtaining personally identifiable information about church members:

Fear of the consequences of the disclosure of one's religious affiliation may be palpable and real at a certain point in history. There is, therefore, in my view, implicit in the First Amendment's guarantee of religious freedom, the right to choose whether or not to disclose one's religious affiliation lest forced disclosure inhibit the free exercise of one's faith. I have to believe that, when a person provides her name and address to a church that has asked her to become a member, she reasonably expects that her name and address will be disclosed to other church members, used by the church to invite her to church functions, and used to solicit her contributions to the church's financial welfare. There is nothing I know of in the American experience that suggests to me that by giving one's name and address to a church one thereby agrees to the publication of one's religious affiliation to the whole world.

What this means for churches

This case will serve as a useful precedent to any church that is asked, in the course of litigation, to turn over information about its members. Doing so impinges not only on a church's constitutional right to the free exercise of religion, but also on church members' constitutional right to free association. As the court noted, "membership lists are generally subject to heightened protection by courts because of the potential chilling effect on the First Amendment right to freedom of association." In re Deliverance Church, 2011 WL 6019359 (N.D. Ohio 2012).

Legal Developments

Invasion of Privacy Lawsuit

The dangers of communicating potentially damaging information about employees.

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Invasion of Privacy

Key point 2-04.1. 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.

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.

An Illinois court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a pastor's "invasion of privacy" lawsuit against a church that had sent out a letter containing information that damaged his reputation and led to his unemployment as a minister.

A pastor (the "plaintiff") was ordained by a local church (Church A) in 1989. A few years later he became pastor of Church B. He thereafter resigned this position and became senior pastor of Church C, a nondenominational church. While serving as pastor of Church C, he received a letter from the board of Church A requesting that he respond to "disturbing reports" they received about his conduct and informing him that if he did not respond they would rescind his ordination. The letter listed six charges against him, including the following:

You have had an improper relationship with a divorced single woman, violating the biblical teaching that an elder be above reproach.
Your decision to file a divorce petition against your wife violates the Biblical admonition that husbands are to love their wives as Christ loves the church.
Your misuse of alcohol violates the biblical admonition that an elder be temperate, self-controlled.
Your misuse of your personal funds as well as the deceitful means used to obtain the [Church C] Bank account violates biblical admonition that an elder should not be a lover of money.

The plaintiff called a member of the board at Church A and informed him that the allegations had been investigated by Church C and determined to be false. He further informed the board member that Church A no longer had authority over him because he had resigned his membership and his ministry with Church A many years before. In response, Church A sent the plaintiff a second letter requesting him to appear before the church board on a specified date to respond to the charges set forth in their earlier letter. This later letter also informed him that if he did not appear his ordination would be revoked.

The plaintiff did not appear before the board, and he received a letter a short time later informing him that his ordination had been revoked. Copies of the letter were sent to some of the board members of Church C. The letter also stated:

Effective immediately, in light of our decision to revoke your licensing and ordination, we now request the following: (1) That you no longer function in the role as minister. (2) That you no longer accept the title 'Reverend' or 'Pastor' or any other such title that would imply that you have credentials for spiritual leadership and ministry. (3) That you inform the leadership and membership of [Church C] of our action …. We will continue to pray for you asking that God will graciously change your heart so that you may be restored to your wife and those whose trust you have betrayed.

The plaintiff sued Church A, and its pastor and a board member, for "invading his privacy" by sending false and misleading letters stating that he could no longer act as a minister and could no longer accept the title of "Reverend," "Pastor," or any other title that would imply that he had credentials for spiritual leadership and ministry.

The lawsuit claimed that, as a result of Church A's second letter, more than 200 people withdrew their membership and attendance from Church C under the belief that he no longer could be a minister, and that the church no longer could pay his salary or conduct services because of the diminished membership. The complaint further alleged that the plaintiff could not obtain employment elsewhere as a minister because the letters were disseminated and discussed widely in the evangelical protestant Christian community.

The trial court dismissed the lawsuit on the basis of the "ecclesiastical abstention" doctrine which generally bars the civil courts from resolving internal church disputes. The plaintiff appealed. Church A made several arguments on appeal, which are summarized below along with the court's response.

First Amendment

Church A insisted that its letters were based upon its biblical authority over the ordination that it bestowed upon the plaintiff and that the First Amendment to the United States Constitution prohibits a state court from examining the religious tenets underlying its authority. The court disagreed:

We determine that we do not need to inquire into or interpret religious matters to decide whether the [second] letter was an invasion of privacy. We are not required to look at religious doctrine or biblical underpinnings of [Church A's] right to revoke an ordination to determine whether defendants' conduct invaded [plaintiff's] privacy by publishing false information …. The harm alleged in the complaint resulted from the alleged conduct of defendants in placing [plaintiff] in a false light when revoking that ordination …. We may review defendants' conduct in carrying out the revocation …. Deciding whether defendants published a letter placing [plaintiff] in a false light, by appearing to revoke [plaintiff's] ability to be a minister and pastor … does not require extensive inquiry into religious law and polity.

Invasion of privacy

Church A claimed that even if the plaintiff's claims were not barred by the First Amendment, he could not prove an invasion of privacy and therefore his lawsuit had to be dismissed. The court noted that there are four kinds of invasion of privacy, and that the one the plaintiff was alleging was "publicity placing another person in a false light."

The court noted that to state a case for the "false light" invasion of privacy, a plaintiff must allege that: (1) the defendant's actions placed the plaintiff in a false light before the public; (2) the false light would be highly offensive to a reasonable person; and (3) the defendant acted with actual malice (that is, with knowledge that the statements were false or with reckless disregard for whether the statements were true or false). The plaintiff claimed that the second letter sent out by Church A was false and misleading as it stated that he no longer could be a minister and could no longer be the pastor of Church C.

Church A insisted that the invasion of privacy claim failed because the letters only expressed "religious opinions" that could not be proven "false" and therefore could not support a false light invasion of privacy claim. The court disagreed, noting that all of the accusations contained in the letters were stated as fact, not opinion. The letter stated, "You have had an improper relationship with a divorced single woman," "Your decision to file a divorce petition against your wife," "Your misuse of alcohol," and "Your misuse of personal funds." The court noted that some of these "factual allegations" were falsehoods, such as that the plaintiff filed a divorce petition against his wife, and the other allegations were stated without any investigation, such as that plaintiff misused alcohol and personal funds.

The court also rejected Church A's argument that there could be no invasion of privacy since it did not act maliciously:

For a finding of malice, the jury needed to find that the statements were made with knowledge that they were false or with reckless disregard for whether they were true or false. Here [Church A] testified that it did not investigate the charges in the letters; did not check the public record regarding the circumstances surrounding plaintiff's dissolution proceedings; and did not question those who accused plaintiff of the behaviors stated in the letters …. Thus, we determine that the jury could have found that defendant acted with actual malice.

What this means for churches

Many states recognize "false light" invasion of privacy. This case is instructive because it represents one of the only cases to apply this basis of liability to a church. While the court's analysis of "false light" invasion of privacy is helpful, its conclusion that the ecclesiastical abstention doctrine did not apply is problematic. Most courts have concluded that the First Amendment bars them from resolving employment disputes between ministers and churches, and this rule has often been extended to collateral forms of liability, such as defamation and violation of civil or contract rights. It is likely that courts in many other jurisdictions would have dismissed the plaintiff's invasion of privacy claim.

There is one additional point that should be noted. The plaintiff's attorney did not sue Church A for "interference with contract." This is surprising, since this would have been a much more likely basis of liability than invasion of privacy. In order to establish an action for intentional interference with contract, a plaintiff must prove: (1) the existence of a valid, enforceable contract between the plaintiff and a third party; (2) defendant's knowledge of that contract; (3) defendant's intentional and unjustified inducement of the third party to breach the contract; (4) a subsequent breach by the third party resulting from defendant's wrongful conduct; and (5) damages suffered by the plaintiff as a result of the breach.

Interference with contract may occur when someone shares information with an employer about a current employee that leads to the employee's termination. This is very different from pre-employment references, which cannot "interfere" with an employment contract since none exists. Consider the following example. A Presbyterian minister left a pastoral position in Alaska and accepted a call as minister of a church in Tennessee. When he presented himself to the church to begin his duties, he was informed by church officials that, because of derogatory information the church had received from a denominational official in Alaska, the church would not hire him. The presbyter had informed church leaders that the minister was divorced, dishonest, unable to perform pastoral duties because of throat surgery, and that he had made an improper sexual advance to a church member in Alaska. The minister sued the presbyter for interference with contract. A state supreme court ruled that the interference with contract claim could be resolved by the civil courts.

The takeaway point is this—church leaders should never communicate potentially damaging information to another church or employer concerning a current employee without first seeking legal counsel. Duncan v. Peterson, 947 N.E.2d 305 (Ill. App. 2010).

Legal Developments

Church Officials Violate of Freedom of Speech

Court rules that seeking identity anonymous blogger critiquing the church and forcing him out was unconstitutional.

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Invasion of Privacy

Church Law and Tax Report

Church Officials Violate of Freedom of Speech

Court rules that seeking identity anonymous blogger critiquing the church and forcing him out was unconstitutional.

Richard R. Hammar

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.

* A federal court in Florida ruled that the disclosure of the identity of a church member who started an anonymous blog critical of the pastor and various church practices violated his constitutional right of free speech. A man (the “plaintiff”) had been a member of a church for 20 years. The church’s lead pastor retired, and the church eventually called a new pastor. Almost immediately after the new pastor began his duties, the plaintiff noticed changes in the preaching style, fundraising, and administration of the church. He disapproved of these changes, believing them to be a departure from long-standing church practices and a serious threat to the integrity of the church. As a result, the plaintiff began an “online chat forum” (blog) to discuss issues related to church doctrine, church funding, and church administration. The blog included the plaintiff’s religious viewpoints, information and opinions pertaining to the church and the pastor’s leadership. The plaintiff encouraged others to contribute to the blog as well. Although the blog was critical of the pastor, the plaintiff insisted that it did not condone, incite, threaten, or describe violence against church leaders, and that he did not engage in any type of criminal conduct against the church or its leaders. Nevertheless, the plaintiff chose to maintain the blog anonymously, due to the critical, controversial nature of the topic and his fear of retaliation from the church. In addition, the plaintiff believed that anonymity would encourage an open and honest dialogue and thereby increase the power and effectiveness of the blog.

A member of the church worked as a law enforcement officer and served on the church’s security detail. The church asked this member if he could obtain the identity of the blog’s anonymous blogger. As part of his investigation the member sought and obtained subpoenas from an assistant state attorney compelling Comcast and Google to disclose the identity of the blogger. Both companies did so, and the plaintiff’s identity was revealed to church leaders. The church thereafter obtained trespass warnings against the plaintiff, forcing him and his family to seek a new church.

The plaintiff filed a lawsuit against the assistant state attorney, claiming that despite the absence of “any legitimate evidence of related criminal conduct” he had issued subpoenas to Comcast and Google requesting the identity of the blogger, along with all other records pertaining to the blog. The plaintiff asserted that issuing the subpoenas under these circumstances violated his First Amendment right of free speech by destroying his ability to speak anonymously on church matters.

The court noted the right of free speech is not limited to written or oral statements and other forms of expression, but also extends to the right of an individual to speak anonymously. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” The Court explained that an author may choose to speak anonymously out of fear of retaliation or social ostracism, or merely out of the desire to preserve one’s privacy. Additionally, the Court noted the “honorable tradition” of anonymous pamphleteering in our society, stating that it “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”

The court concluded: “Here [the plaintiff] has alleged sufficient facts to establish that exposing his identity impinged on his First Amendment rights by subjecting him to some level of reprisal. Specifically, he has alleged that after his identity was revealed to the church, a trespass warning was issued against him and his wife, he and his family were forced to seek another church, and his ability to speak anonymously on issues concerning the church was destroyed. As such, use of the subpoena power invaded his First Amendment rights and deterred him from what he argues were ‘perfectly peaceful discussions of public matters of importance.'”

‘Here [the plaintiff] has alleged sufficient facts to establish that exposing his identity impinged on his First Amendment rights by subjecting him to some level of reprisal.’

Application. Many persons have created blogs that are critical of a particular church and its leaders and practices. In some cases, the blogger chooses to remain anonymous. Church leaders may seek to learn the blogger’s identity in order to respond directly to complaints and limit the annoyance and collateral damage to the church. As this case illustrates, obtaining the blogger’s identity is difficult, and if it involves a subpoena, this may result in a violation of the blogger’s free speech rights. In some cases the church also may be liable on the basis of an invasion of privacy. Rich v. City of Jacksonville, 2010 WL 4403095 (M.D. Fla. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 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.

Parnigoni, 681 F.Supp.2d 1 (D.D.C. 2010).009)

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 4-02.03. 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 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.

A federal court in the District of Columbia ruled that a former church employee could sue the church for defamation and invasion of privacy as a result of the church's disclosure to its members that the employee had married a registered sex offender.

The facts of the case, as alleged by the employee in her lawsuit, are as follows. A woman was employed as a teacher at a church preschool for seven years. During her employment her fiancé was charged with, and ultimately convicted of, indecently exposing himself to a minor. The teacher informed the preschool director of her fiancé's conviction, and the director informed the church board. The church took no action at that time, and the teacher continued her employment without any further discussion of the matter. In time, the teacher and her fiancé were married. At no time did anyone associated with the church or preschool indicate that the teacher's marriage would be cause for concern or place her job in jeopardy.

A few years later the couple enrolled their son at the preschool. At this time the preschool director met with the teacher and inquired into the details of her husband's prior conviction.

The director stated that the teacher was required to disclose the details of her husband's conviction so that the director would be able to explain the circumstances to any parent who might inquire about the situation. The director later informed the teacher that the church board was "nervous" about her husband because "he might now have reason to be on the school property to pick up his son." The teacher explained that she planned to walk her son a block away from the school to rendezvous with her husband on days that he was responsible for driving him home.

A few weeks later, the teacher met with the church's senior pastor, who announced her decision to make a full public disclosure of the husband's prior conviction "to all parents of students attending the preschool and the entire parish." The pastor also indicated that the church planned to announce the fact that she, a teacher at the school, was married to a convicted sex offender.

The teacher insisted that the church had not indicated any concerns regarding her husband, and so she surmised that the new concern was related to her son's enrollment in the school. As a result, she offered to withdraw her son from the school to avoid any "embarrassment to her and her family." She eventually did so after the church's attorney informed her that this would be helpful. She also offered to terminate her employment "in order to avert public disclosure" of her husband's conviction, but the school rejected her offer.

A few days later the pastor met with the school staff and informed them of the prior conviction. She insisted that the sole reason for making the disclosure was the teacher's "poor judgment" in marrying a sex offender and not the enrollment of her son in the preschool. Following this meeting the pastor sent a letter to all members of the church informing them of the husband's registration with the state sex offender registry as a result of his prior conviction for indecent exposure to a minor. The letter went on to state that it had been sent to "enable parents to make informed decisions as to whom they should entrust the care and supervision of their children." It further stated that because the church lacked the ability "to anticipate every possible future scenario [the church's leadership] believed their best course of action was to give the parents the information they needed to protect their children."

The teacher and her husband (the "plaintiffs") sued the church, preschool, pastor, and preschool director (the "defendants") alleging several theories of liability, including defamation and invasion of privacy. The court declined the defendants' request to dismiss all of the plaintiffs' claims.

A Viable Claim

The court noted that a viable defamation claim requires (1) a false and defamatory statement concerning another; (2) publication or dissemination of the statement without privilege to a third party; (3) the defendant's fault in publishing the statement amounted to at least negligence; and (4) the statement was defamatory as a matter of law or its publication caused the victim special harm. The court concluded that the teacher's defamation claim met these requirements, but not her husband's.

Remarkably, the court concluded that the statements in the pastor's letter to church members could be defamatory even though they were true. While this seems to contradict the first element of defamation (a false statement), the court reasoned that the contents of the letter amounted to "defamation by implication" since a reasonable person reading the letter could "draw a defamatory inference." The court explained: "If a communication, by the particular manner or language in which true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning."

The court rejected the defendants' argument that the pastor's letter was privileged since her objective was to protect children from a registered sex offender. It observed:

Assuming for the sake of argument that the defendants acted solely for the purpose of protecting the children at the school … the defendants should have sent the letters only to the parents of the school's children …. However, the defendants did not limit the scope of their dissemination to that audience, but also sent the letters to all members of the parish …. The dissemination was therefore much more extensive than necessary. And the fact that the defendants delayed the disclosure of the information for approximately three years after [the teacher] advised them of her husband's conviction, coupled with the decision to make the disclosure only after she married [him] undermines the defendants' stated reason for making the disclosure and supports the plaintiffs' position that the disclosure was made to chastise [the teacher] for exercising what the defendants consider to be her poor judgment in marrying [a sex offender] …. In addition, the defendants also ignored [the teacher's] several attempts to avoid the release of this information, including removal of her child from the school and her offer to resign as an alternative to the disclosures. The defendants' actions, coupled with their disapproval of [the teacher's] marriage … support the plaintiffs' contentions that it was the defendants' desire to condemn [the teacher] for her marital decision, thus rendering their publication of the information not only negligent, but malicious.

First Amendment defense

The court, in rejecting the defendants' argument that the plaintiffs' claims were barred by the First Amendment guaranty of free speech, observed: "The defendants contend that their statements qualify as opinions that are protected by the First Amendment. This Court does not agree. An opinion which asserts provably false and defamatory facts is not deserving of the protections of the Constitution."

Invasion of privacy—false light

"Invasion of privacy" comprises several separate wrongful acts, including placing someone in a "false light" and the public disclosure of private facts. The plaintiffs asserted that the defendants were liable for both of these kinds of invasion of privacy as a result of the letter the pastor sent to members of the church which mentioned the husband's registered sex offender status and insinuated that both spouses were potential child molesters.

The court noted the following four requirements of a false light-invasion of privacy claim: "(1) publicity; (2) about a false statement; (3) understood to be of and concerning the plaintiff; and (4) which places the plaintiff in a false light that would be offensive to a reasonable person." The court concluded that the teacher had a viable false light claim, and so it rejected the defendants' request that it dismiss this claim. It observed: "The defendants' release of information about [the husband's] conviction as a sex offender and statements about whom parents should trust with the care of their children reasonably created the false impression that [his wife] was a threat to the students simply because of her association with [him] and placed her in a highly offensive light …. In fact, the defendants received letters expressing outrage at their actions and their implication that she presented a risk to the safety of the students at the school."

Invasion of privacy—publication of private facts

Invasion of privacy also includes the publication of private facts about another in a manner that would be highly offensive to a reasonable person. The defendants insisted that the pastor's letter to church members did not involve the publication of private facts since, though embarrassing, this information was a matter of public knowledge. The court agreed, and dismissed this claim.

Application. This case is significant for the following reasons:

1. It is one of a few cases to hold that a statement need not be false to be defamatory.

2. The pastor's letter, sent to all church members, was not privileged since not all members had a legitimate need to know that the husband was a registered sex offender. In most states, statements shared with church members on matters of common interest are privileged, meaning that they cannot be defamatory or an invasion of privacy unless made maliciously (i.e., with a knowledge the statement was false, or with a reckless disregard as to its truthfulness). However, this court cautioned that statements may not be privileged if disseminated to members not having a legitimate need to know.

The court observed: "Assuming for the sake of argument that the defendants acted solely for the purpose of protecting the children at the school … the defendants should have sent the letters only to the parents of the school's children …. However, the defendants did not limit the scope of their dissemination to that audience, but also sent the letters to all members of the parish …. The dissemination was therefore much more extensive than necessary." This principle is often implicated when church leaders seek to inform the congregation about the dismissal of a staff member for misconduct.

Church leaders should understand that statements made to nonmembers, or even to members not having a legitimate "need to know," are not privileged and therefore expose the church to potential liability for defamation or invasion of privacy. This risk can be mitigated by limiting the disclosure to those members having a need to know.

3. This case illustrates that a church may be liable on the basis of "false light" invasion of privacy for disseminating statements that place someone in a false light. However, the false light in which the person was placed must be highly offensive to a reasonable person, and it must have been publicized either with a knowledge that it was false or with a reckless disregard concerning its truthfulness.

An errant photo leads to investigation, termination, and forced retirement

“False-light invasion of privacy” not in play

What this means for churches

Background

The ecclesiastical abstention doctrine

The appeals court addresses each claim

Infliction of emotional distress

Misrepresentation and invasion of privacy

Vicarious liability and negligent hiring, supervision, or retention

Final conclusion

What this means for churches

What this means for churches

Invasion of privacy for accessing Gary's personal text messages

What this means for churches

State wiretapping law

Invasion of privacy

What this means for churches

Relevancy

First Amendment

What this means for churches

First Amendment

Invasion of privacy

What this means for churches

Church Officials Violate of Freedom of Speech

A Viable Claim

First Amendment defense

Invasion of privacy—false light

Invasion of privacy—publication of private facts

Pastor Sues Former Church for Defamation

Qualified Privilege

Appropriation of another's likeness for commercial gain

"Incidental" use of another's image

What this means for churches

Civil court intervention in internal church disputes

Malpractice for disclosing confidential information

What this means for churches

Confidential and Privileged Communications

Personal Injuries – On Church Property or During Church Activities

Clergy – Discipline and Dismissal