Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.
An Oregon court ruled that the First Amendment did not prevent it from resolving a defamation claim brought by a pastor against his former church and denominational officers. A church laid off an associate pastor (the “plaintiff”) due to financial difficulties. A denominational officer offered the plaintiff a position as pastor of a church in a nearby small town. The plaintiff was unenthusiastic about this position and explained that he had concerns about the salary, health insurance coverage, and lack of opportunities to supplement his income in such a small town. The denominational officer offered the plaintiff a monthly salary of $1,500; a subsidy of an additional $1,100 per month for plaintiff’s first three months (totaling $3,300) to match the salary that the outgoing pastor had received; and health care coverage for up to six months.
The plaintiff eventually accepted the position, but emphasized to denominational officers that he wished to be considered an interim pastor. A denominational officer sent the plaintiff a letter stating that he would send him a check for $3,300 to subsidize his first three months of salary, and that these checks would not have to be repaid. A short time later, the plaintiff, with the knowledge of the church board, withdrew $3,000 from the church’s bank account. He discussed the transaction with the board, explaining that the money had been earmarked for him as a gift by a denominational officer. The board accepted that explanation and issued the check in accordance with its normal procedures, including having two individuals (in this instance, plaintiff and a board member) sign the check. The expenditure was further documented in expense reports that were sent to a denominational office. The plaintiff deposited the check into a personal checking account and wrote four checks against that amount to cover health insurance premiums.
A few months later the pastor informed the congregation that he would be leaving. As part of this transition a denominational officer reviewed the church’s accounting records. The church bookkeeper asked the denominational officer to take a look at the $3,000 withdrawal from the church’s bank account. The officer looked at the transaction, and later informed the pastor that he was being charged with “misappropriation of church funds” as a result of the withdrawal since “that money was intended for the subsidy of the church for your salary for the first three months of employment there and not to be taken over and above your salary.” The pastor expressed shock at the accusation. He elected not to pay back the $3,000 because he believed that, by doing so, he would be admitting that he was guilty of misconduct.
A denominational officer drafted a letter that he later read aloud to the congregation. He later testified that he wanted to inform the congregation about the circumstances of plaintiff’s departure because it “had a right to know what was happening” and because he wanted to avoid speculation and rumors regarding plaintiff and the $3,000 transaction. In the letter, the officer explained that “based on a review of the church books and board minutes, it is now evident that there has been, to some extent, a financial misappropriation by [the plaintiff].” Another denominational officer sent an e-mail to his superior’s secretary stating that the plaintiff “has already demonstrated a willingness to lie and steal, and to purposely sow discord and the division.”
After resigning his position, the plaintiff was unable to find employment as a pastor. He sold his home and moved into a trailer with his wife.
The plaintiff sued his former church, along with the denominational officer who composed the letter that was read to the congregation and the other officer who sent the e-mail in which he referred to the plaintiff’s “willingness to lie and steal.” He asserted that these communications defamed him.
A jury returned a verdict in favor of the plaintiff and awarded monetary damages. The trial judge issued a “judgment notwithstanding the verdict,” meaning that he overrode the jury’s decision because he concluded that the First Amendment guaranty of religious freedom deprived the court of jurisdiction to resolve an internal church dispute over the status of a pastor. The plaintiff appealed.
A state appeals court defined defamation as “a false statement that would subject the plaintiff to hatred, contempt or ridicule or tend to diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the plaintiff].”
The defendants insisted that the letter and e-mail could not be defamatory since they were protected by a qualified privilege. The court noted that a qualified privilege generally “exists to protect statements made on a subject of mutual concern to the defendant and the persons to whom the statement was made.” Such statements generally cannot be defamatory (they are “privileged”). However, the privilege is not absolute. It is “qualified” in the sense that statements concerning matters of mutual concern may be defamatory if the person making them abused the privilege. Abuse occurs and the privilege is lost “if the publisher disbelieves or lacks reasonable grounds to believe that the defamatory statement is true, if the statement is made for purposes outside the scope of the privilege, if the statement is made to someone who is not reasonably believed to be necessary to accomplish the purpose of the privilege, or if the statement includes defamatory matter that is not reasonably believed to be necessary to accomplish the purpose of the privilege.”
The court acknowledged that the First Amendment guaranty of religious freedom “severely restricts the authority of civil courts to adjudicate disputes on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law,” and that the courts have understood this principle “to include church decisions involving the employment of ministers.”
However, “the First Amendment does not completely bar relief sought by a plaintiff against a church in a civil lawsuit.” The court “failed to understand how a defamatory statement accusing a pastor of theft is any more (or less) a matter of church discipline, faith, internal organization, or ecclesiastical rule, custom, or law than is a defamatory statement accusing a pastor of child molestation.” The court laid down the following two rules:
If the organization is of a religious character, and the alleged defamatory statements relate to the organization’s religious beliefs and practices and are of a kind that can only be classified as religious, then the statements are purely religious as a matter of law, and the [First Amendment] bars the plaintiff’s claim. In defamation law terms, those statements enjoy an absolute privilege.
If, however, the statements—although made by a religious organization—do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose—that is, if they would not always and in every context be considered religious in nature—then the First Amendment does not necessarily prevent adjudication of the defamation claim, but the statements may nonetheless be qualifiedly privileged.
The court concluded that in this case, the allegedly defamatory statements—that the pastor had misappropriated money and had demonstrated a willingness to lie—would not “always and in every context” be religious in nature. As a result, even though the statements related to the plaintiff’s conduct as a pastor of the church, that “did not render those statements absolutely privileged as a matter of law under the [First Amendment]. Rather, that fact gives rise to a qualified privilege,” meaning that “the burden falls on the plaintiff to prove that the qualified privilege was abused—that is, that the defendant did not believe the statement to be true or lacked reasonable grounds for believing that it was true, or that the statement was made for a purpose outside the scope of the privilege.” The court concluded that “determining whether defendants had reasonable grounds for believing the defamatory statements or whether the statements were made for purposes outside the purpose of the privilege can be resolved without requiring the court to delve into the ecclesiastical concerns of the church.” As a result, the court rejected the defendants’ claim that the First Amendment provided an absolute bar to plaintiff’s defamation claim and ordered the jury verdict in favor of the plaintiff to be reinstated.
Application. This ruling deviates from the general rule that the First Amendment guaranty of religious freedom bars the civil courts from resolving employment disputes between churches and clergy. While many courts would reject this court’s reasoning, the case will provide ministers with a precedent, making a defamation claim more viable. Tubra v. Cooke, 225 P.3d 862 (Or. App. 2010).
This Recent Development first appeared in Church Law & Tax Report, March/April 2011.