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 10-15. The First Amendment limits, but does not eliminate, a church’s liability for defamation.
* An Oklahoma court ruled that the First Amendment guaranty of religious liberty, as well as the concept of “qualified privilege,” protected a church from being sued for defamation as a result of the senior pastor’s statement to a church member that a former youth pastor had been dismissed because he had been “questioning his sexuality.” A church board voted to dismiss the church’s youth pastor (Pastor Eric). Pastor Eric later sued the senior pastor of the church, and the church and a regional church, for defamation based on the senior pastor’s statement to members of the church and local community that Pastor Eric had been dismissed because he was “questioning his sexuality.” Pastor Eric claimed that these statements constituted slander, and he asked the court to award him both actual and punitive damages. The church defendants insisted that the pastor’s alleged statement was made to only one person (a church member), and concerned the discipline of a youth pastor, and therefore was shielded from liability by the First Amendment guaranty of religious freedom as well as the “qualified privilege” that protects statements of “common interest” that are shared between church members.
Pastor Eric pointed to minutes of a church board meeting indicating that he had been fired for violating church policy in the conduct and financing of youth activities, and therefore the pastor’s subsequent statements regarding his sexuality did not concern the imposition of discipline for violation of any ecclesiastical doctrine of the church and were not protected by the First Amendment. In addition, Pastor Eric alleged that the senior pastor’s statement regarding his sexuality was made to a church member in the presence of two other church members. A trial court dismissed the lawsuit, concluding that the senior pastor’s statement was made “to a church member about a terminated staff member, who was also a church member; accordingly, the alleged statement is constitutionally protected.” Pastor Eric appealed.
A state appeals court began its opinion by defining defamation as a false statement about another that is communicated to other persons. It noted that the First Amendment to the United States Constitution “guarantees a church the right, without fear of judicial interference, to impose on its members discipline for breach of ecclesiastical doctrine so long as the member remains a member of the church.” Consequently, “the First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline,” and “within the context of ecclesiastical discipline, churches enjoy an absolute privilege from scrutiny by the secular authority.”
The court rejected Pastor Eric’s claim that the First Amendment offers no protection to defamatory statements unrelated to church discipline. It observed, “The statement of which plaintiff complained related to the ostensible reason for his termination, conveyed from the pastor to a member of the congregation concerning the conduct of another member. At least one court has specifically held that statements by and between church members relating to the church’s reasons and motives for terminating a person’s membership require an impermissible inquiry into church disciplinary matters,” and that the First Amendment “precludes a member’s defamation claim which clearly involves an internal conflict within the church. We are persuaded that examination of [the senior pastor’s] statement in the present case likewise requires an impermissible inquiry into church disciplinary matters, barred by the First Amendment.”
The court concluded that the church defendants also were protected by a qualified privilege, which it defined as follows:
A church or other religious organization ordinarily bears no tort liability for statements by or between church officers or members concerning the conduct of other officers or members, because communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged as matters affecting a common interest or purpose. This is especially so where the publication is made in response to a request rather than volunteered by the publisher. So, where the alleged defamatory statements are exchanged by or between members of the congregation during or as result of either a church’s decision to employ, retain or terminate a clergyman or lay employee, or a church’s review of the performance of a clergyman or lay employee, the conditional privilege shields the church from liability for defamation.
A qualified privilege is “qualified” in the sense that it will not apply if the person making an allegedly defamatory statement does so with “malice.” In this context, malice means either a knowledge that the statement was false, or a reckless disregard as to its truthfulness.
The court quoted with approval from a 1929 decision by the New Hampshire Supreme Court:
The idea that the conduct of a minister should be mentioned unfavorably only at church meetings, or before tribunals having authority in the premises, suggests an undesirable departure from the usual course of events …. Individual church members are not accustomed to bring the various items of gossip which may be in circulation about the minister to the attention of the governing boards of the church, nor is it desirable that they should do so …. Instances in which charges are presented and heard by the constituted church authorities evidence the culmination of considerable periods of private discussion amongst the members of the congregations involved. Any rule designed to penalize the formation of public sentiment in such cases by arresting the preliminary sifting of reports through private discussion, free from the taint of malice and for a proper purpose, is without justification and would be foredoomed to practical failure as an attempt to decree that men and women shall not act like human beings. Slocinski v. Radwan, 144 A. 787 (1929)
The court noted that a church member had asked the senior pastor why Pastor Eric had been terminated, which amounted to a request for information “concerning [his] conduct or qualifications for office.” The allegedly defamatory statement occurred in the course of the pastor’s response to this inquiry, that is, “during an exchange between one member of the congregation and another member of the congregation concerning the acts of a third member of the congregation.” The court concluded that “the unconverted evidence thus demonstrates publication of the complained-of statement occurred on a conditionally privileged occasion, and the record contains no evidence even remotely suggesting the destruction of the conditional or qualified privilege by abuse or malice.”
Application. This case contains an excellent description of the qualified privilege. Church leaders should be familiar with this concept. Note, however, that in recent years some courts have limited the First Amendment and qualified privilege defenses to statements made about a staff member prior to his or her termination. This is an important qualification to bear in mind.
Also note that the minutes of the church board were cited by Pastor Eric as proof that he had been terminated for non-doctrinal reasons. This illustrates an important point. Church board members should recognize that the minutes of their meetings are accessible in the event of future litigation, and as a result they should be prepared with this possibility in mind. If in doubt, have a local attorney review minutes before they are formally approved. Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006).
* See (1) “Defamation,” Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006); (2) “Sexual misconduct by clergy, lay employees, and volunteers,” 2006 WL 1009283 (W.D. Wash. 2006), in the recent developments section of this newsletter.