Key point 10-15. The First Amendment limits, but does not eliminate, a church's liability for defamation.
Defamation consists of the following elements:
(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
If the words are oral, the defamation is sometimes called slander. If the words are written, the defamation may be referred to as libel. Although this terminology is still widely used, there is a tendency to refer to both slander and libel as defamation.
The courts have been reluctant to subject churches to civil liability on the basis of defamation. In many cases, this reluctance is rooted in the fact that allegedly defamatory statements made by church officials orally or in church publications involve pervasively religious concerns such as the discipline of members or clergy. The courts have responded to defamation claims against churches in the following five ways:
1. No Civil Court Jurisdiction
Some courts have concluded that the First Amendment deprives them of jurisdiction to resolve defamation claims against churches, at least if doctrinal or other pervasively religious issues are involved.
• A federal appeals court ruled that civil courts lack authority to resolve disputes between dismissed clergy and their former church or denomination. Natal v. Christian and Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989). Accord Pierce v. Iowa-Missouri Conference of Seventh-Day Adventists, 534 N.W.2d 425 (Iowa 1995). A minister was dismissed by his denomination. He later sued the denomination, claiming that his dismissal violated established procedures set forth in the denomination's bylaws. He alleged that his dismissal violated various "contract and property rights," and was defamatory. The court concluded that the First Amendment guaranty of religious freedom prevents the civil courts from resolving lawsuits brought by dismissed ministers against former churches or denominations "however a lawsuit may be labeled." In other words, the fact that a dismissed minister alleges breach of contract, defamation, emotional distress, or similar "secular" theories of liability will not enable the civil courts to resolve what in essence is a dispute between a minister and his or her church or denomination. The court observed, "However a suit may be labeled, once a court is called upon to probe into a religious body's selection and retention of clergymen, the First Amendment [guaranty of religious freedom] is implicated. … The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern."
• A federal appeals court ruled that it was barred by the First Amendment from resolving a lawsuit brought against a denomination by a dismissed minister. The court noted that the allegedly defamatory statements occurred in the course of a church disciplinary proceeding that led to the minister's dismissal. The court concluded: "It is clear that regardless of how the claims set forth in the plaintiffs' complaint may be labeled, resolving the claims would require this court to enter into areas implicating the First Amendment. The claims of breach of contract, interference with business relationships, conspiracy, invasion of privacy, and defamation, as well as his request for a declaratory judgment that the charging body within the [national church] lacked the legal or other proper authority to bring charges against him, all implicate the [national church's] internal disciplinary proceedings. As a result, this court cannot have jurisdiction over them." Church of God, 153 Fed.Appx. 371 (6th Cir. 2005).
• A federal appeals court refused to allow a "disfellowshiped" Jehovah's Witness to sue her former church for defamation, invasion of privacy, fraud, and outrageous conduct. Paul v. Watchtower Bible and Tract Society of New York, 819 F. 2d 875 (9th Cir. 1987). The disfellowshiped member claimed that she had been aggrieved by the Jehovah's Witness practice of "shunning," which requires members to avoid all social contacts with disfellowshiped members. The court, acknowledging that the harm suffered by disfellowshiped members is "real and not insubstantial," nevertheless concluded that permitting disfellowshiped members to sue their church for emotional injuries "would unconstitutionally restrict the Jehovah's Witness free exercise of religion." The constitutional guaranty of freedom of religion, observed the court, "requires that society tolerate the type of harm suffered by [disfellowshiped members] as a price well worth paying to safeguard the right of religious difference that all citizens enjoy."
• A Minnesota court ruled that a female associate pastor could sue her senior pastor for sexual harassment on account of his repeated sexual advances toward her and the "hostile work environment" that he created, but the woman's allegations of breach of contract, defamation, and wrongful dismissal were barred by the First Amendment. Black v. Snyder, 471 N.W.2d 715 (Minn. App. 1991). The court concluded that the woman's defamation claim "is based on the church's stated reason for her discharge as 'inability to conduct her ministry efficiently.' This claim would require a … review of the church's reasons for discharging her, an essentially ecclesiastical concern. … The impermissible entanglement of doctrinal and disciplinary issues is sufficient to support the dismissal of this claim." The court concluded that "the prohibition against litigating matters at the core of a church's religious practice requires dismissal of [the woman's] discharge-related claims."
• An Ohio court dismissed a lawsuit brought by two former ministers against their church and denomination. Salzgaber v. First Christian Church, 583 N.E.2d 1361 (Ohio App. 1991). A church hired a husband and wife as "co-pastors." A few years later, the couple were dismissed. They sued their former church on the basis of several theories of liability, including defamation. In particular, they asserted that the church defamed them by publishing negative comments regarding their ministry and alleged financial misconduct. In rejecting the claim of defamation, the court concluded, "One who falsely and without a privilege to do so publishes a slander which ascribes to another conduct, characteristics, or a condition incompatible with the proper conduct of his lawful business, trade, or profession is liable to the other. However, inquiry by a civil court into the truth or falsity of the statements by [church officials] would require review of subjective judgments made by religious officers and bodies concerning [the co-pastors'] conduct of the pastorate and financial misdealings. Inquiry would be ecclesiastical in nature and constitutionally prohibited."
• The Oklahoma Supreme Court ruled that a church could not be sued for defamation by two church members who had been disciplined because of sexual misconduct. Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992). See also Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006). A church convened a disciplinary hearing to determine the membership status of two sisters accused of fornication. Neither sister attended, and neither sister withdrew her membership in the church. Following the hearing, both sisters received letters from the church informing them that their membership had been terminated. The sisters sued the church and its leaders, claiming that the church's actions in delivering the termination letters and disclosing their contents "to the public" constituted defamation, intentional infliction of emotional distress, and invasion of privacy. A trial court dismissed the lawsuit, and the sisters appealed directly to the state supreme court which upheld the dismissal of the case. The court began its opinion by rejecting the sisters' claim that the contents of the termination letters had been disclosed improperly to the public. This allegation was based entirely on a conversation between a church board member and another member of the church. The member asked the board member why the board was "going after" the sisters, and the board member replied that it was on account of "fornication." The court concluded that this comment did not constitute a disclosure of the contents of the letters "to the public," and accordingly there had been no defamation or invasion of privacy. The court recognized an absolute constitutional protection for the membership determinations of religious organizations (assuming that the disciplined member has not effectively withdrawn his or her membership): "[The relationship between a church and its members] may be severed freely by a member's positive act at any time. Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state. The First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline. Within the context of church discipline, churches enjoy an absolute privilege from scrutiny by the secular authority."
• A Texas court ruled that a bishop and diocese could not be liable on the basis of defamation for statements made about a priest's status within the church. Tran v. Fiorenza, 934 S.W.2d 740 (Tex. App. 1996). A priest had a history of conflict with his diocese culminating in his association with a dissident Catholic sect. A parishioner asked the priest's bishop about the priest's standing in the Catholic Church, and was informed that "he is not in good standing with his diocese and does not enjoy the [authority] to function as a priest in [this] or any other diocese." The bishop advised another person that the priest was excommunicated, and not in good standing, and "says mass to a small number of people, including elderly women who have been deceived by him." The bishop later sent a memorandum to "all pastors" advising them to refrain from advertising or encouraging a mass being offered by the priest who was described as an "excommunicated priest who has left the Catholic Church." The priest sued the bishop and diocese, claiming that these communications were defamatory. A state appeals court disagreed. The court observed that the First Amendment "forbids the government from interfering with the right of hierarchical religious bodies to establish their own internal rules and regulations." As a result the civil courts cannot "intrude into the church's governance or religious or ecclesiastical matters, such as theological controversy, church discipline, ecclesiastical government, or the conformity of members to standards of morality." Furthermore, the court noted, "[C]ourts will not attempt to right wrongs related to the hiring, firing, discipline or administration of clergy. Although such wrongs may exist and may be severe, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle it overshadows the inequities which may result from its liberal application." The court rejected the priest's claim that the dispute did not involve ecclesiastical considerations: "[The priest's] claims arise from his divestiture of priestly authority; thus, his [legal] claims are inseparable from the privileged aura of ecclesiastical exemption. [The bishop's] administrative duties include informing members of the Catholic Church of the status of its clergy. We believe that statements made by a bishop in carrying out his administrative duties concerning an excommunication made before, during or after an excommunication, are all part of an ecclesiastical transaction—the divestiture of priestly authority." The court acknowledged that "there may be circumstances where a bishop or other church authority makes statements which overstep the bounds of [his or her] administrative duties." For example, "when statements are made by a church authority which are clearly intended to defame or inflict emotional distress, the authority has overstepped the bounds of his administrative duties and the statements may fall outside ecclesiastical protection." This was not true in this case, however, since the bishop's statements all related to the priest's standing in the Catholic Church.
2. Common Interest Privilege
Many courts have concluded that the law should encourage churches to communicate matters of "common interest" to members without fear of being sued for defamation. These courts have ruled that churches are protected by a qualified privilege when communicating with church members about matters of mutual concern or common interest. This means that such communications cannot be defamatory unless made with malice. Malice in this context means that the person who made the allegedly defamatory remark knew that it was false, or made it with a reckless disregard as to its truth or falsity. This is a difficult standard to prove, which means that communications between churches and church members will be defamatory only in exceptional cases.
Tip. The common interest privilege is addressed in section 4-02.03 in the context of clergy who are sued for defamation.
• A California court ruled that a national church could not be sued for allegedly defamatory statements made in the course of a doctrinal explanation in one of its publications. McNair v. Worldwide Church of God, 242 Cal. Rptr. 823 (2d App. Dist. 1987). A minister of the Worldwide Church of God wrote an article in a church publication that addressed the Church's newly developed and misunderstood doctrine on divorce and remarriage. The article contained statements that allegedly defamed the former spouse of a prominent Church official. The court concluded that "our accommodation of the competing interests of our society —one protecting reputation, the other, the free exercise of religion —requires that we hold that in order for a plaintiff to recover damages for defamatory remarks made during the course of a doctrinal explanation by a duly authorized minister, he or she must show, by clear and convincing evidence, that the defamation was made with 'constitutional malice,' that is with knowledge that it was false or with reckless disregard of whether it was false or not." Such a rule, observed the court, "strikes an appropriate balance between our citizens' reputational interests and our society's interest in protecting the right to free exercise of religion." The court rejected the Church's claim that the constitutional guaranty of religious freedom prevents ministers from ever being sued for defamatory statements made in the course of doctrinal explanations. Such suits are constitutionally permissible, concluded the court, but a plaintiff has the difficult burden of proving "malice" by "clear and convincing evidence."
• A Minnesota court ruled that the First Amendment's "nonestablishment of religion" clause prevented it from resolving a dismissed minister's lawsuit against his former church. Singleton v. Christ the Servant Evangelical Lutheran Church, 541 N.W.2d 606 (Minn. App. 1996). A church installed a new pastor. From the beginning, the pastor's relationship with the congregation was strained. When the church council reduced the pastor's salary to less than $4,000, the pastor sued the church and a denominational agency. He alleged several theories of liability, including defamation. Specifically, he claimed that members of the church defamed him by making the following statements about him in public meetings that harmed his reputation and his ability to obtain another call: he did not attend a wedding rehearsal; he made a false statement regarding a church member's attendance at a retirement party; he insisted that his salary should be paid before the church's mortgage; he failed to visit in the hospital a woman with cancer; he failed to respond to a member's telephone call regarding an infant's death; he breached his duty of confidentiality by telling others of a member's abusive father and by stating that the member had a problem with authority; he charged $500 for conducting a wedding; he received eleven weeks of vacation; he had jeopardized the church's insurance policy by taking the church bus to camp; and while out of town, he returned only for the funerals of friends. The court concluded that these statements did not defame the pastor, since they were protected by a "conditional privilege." The court explained that "a communication is conditionally privileged … if it is made upon a proper occasion, from a proper motive, and … based upon reasonable or probable cause." This principle rests upon the courts' determination that "statements made in particular contexts or on certain occasions should be encouraged despite the risk that the statements might be defamatory." The court concluded that the members' alleged statements about the pastor qualified for this privilege since they all were communicated "at task force meetings or church council meetings and dealt with [the pastor's] actions as a pastor." Further, there was no evidence that the members were acting "out of the kind of malice or ill will that defeats the privilege." The pastor also claimed that he was defamed when a bishop's assistant told a church official that he was "paranoid." This statement was made during a phone conversation in which the church official and the bishop's assistant discussed conflicts in the church, the pastor's position at the church, and the pastor's compensation. The court found these comments to be "within the conditional privilege." Further, there was no evidence that the bishop's assistant made the statement out of malice or ill will.
3. Statements Made at Ecclesiastical Disciplinary Hearings
Some courts have ruled that statements made at church disciplinary hearings are protected by a qualified privilege. This means that such communications cannot be defamatory unless made with malice. Malice in this context means that the person who made the allegedly defamatory remark knew that it was false, or made it with a reckless disregard as to its truth or falsity. This is a difficult standard to prove, which means that communications made in the course of church disciplinary hearings will be defamatory only in exceptional cases.
4. Defamation Claims Not Involving Doctrinal Inquiries
A few courts have concluded that the First Amendment does not prevent them from resolving defamation claims by ministers against churches and denominational agencies to the extent such claims can be resolved without any inquiry into religious doctrine or polity.
• A federal appeals court ruled that a minister could not sue his denomination for allegedly failing to follow its bylaws in suspending him, but he could sue the denomination for defamation. Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468 (8th Cir. 1993). As one of its services for member churches, a denomination prepares and circulates personal information files on its ministers to churches interested in hiring pastors and advises them on the background and suitability of individual ministers. The denomination placed a document in a minister's file stating that his spouse had previously been married. The minister claimed that the denomination took this action without consulting him or verifying the accuracy of the information, and that the information in fact was untrue. The minister alleged that because churches within the denomination automatically disqualify a minister if his personal file shows that his spouse has been divorced, the denomination effectively excluded him from consideration for employment as a pastor by circulating this false information. At the time the denomination was circulating the erroneous statement about his spouse, the minister was actively, and unsuccessfully, seeking employment in a local church. Even though he was established in his profession and over three hundred churches were in need of a pastor, the minister did not obtain a position with any church. He sued the denomination, seeking monetary damages for his loss of income during the time that it circulated the false information about his spouse. The court concluded that the First Amendment did not bar the minister's defamation claim: "The First Amendment proscribes intervention by secular courts into many employment decisions made by religious organizations based on religious doctrine or beliefs. Personnel decisions are protected from civil court interference where review by civil courts would require the courts to interpret and apply religious doctrine or ecclesiastical law. The First Amendment does not shield employment decisions made by religious organizations from civil court review, however, where the employment decisions do not implicate religious beliefs, procedures, or law. At the present stage of this litigation we are unable to predict that the evidence offered at trial will definitely involve the district court in an impermissible inquiry into the [denomination's] bylaws or religious beliefs. [The minister] has alleged that although over three hundred congregations were in need of a pastor he did not receive an offer of employment from any congregation while the [denomination] was circulating false information about his spouse. [His] fitness as a minister is not in dispute because his name was on the [denomination's] roster of eligible ministers during the relevant period. … The [denomination] has not offered any religious explanation for its actions which might entangle the court in a religious controversy in violation of the First Amendment. [The minister] is entitled to an opportunity to prove his secular allegations at trial."
• The Alaska Supreme Court ruled that a denominational official could be sued on the basis of defamation and interference with contract for making disparaging comments about another minister who recently had been hired by a local church. Marshall v. Munro, 845 P.2d 424 (Alaska 1993). A 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 defamation, interference with contract, and breach of contract. A trial court dismissed the lawsuit on the ground that it was without jurisdiction to decide matters of internal church discipline. The minister appealed to the state supreme court. The supreme court ruled that while the civil courts lacked jurisdiction to resolve the breach of contract claim, they could resolve the defamation and interference with contract claims. With regard to the defamation claim the court observed, "The questions raised by the defamation claim concern only the statements made by [the presbyter]. There is no need for the court to involve itself in [the pastor's] qualifications. The court needs to determine only if [the presbyter] actually said: (1) [the pastor] was divorced; (2) [the pastor] was dishonest; (3) [the pastor] had throat surgery disabling him as a pastor; and (4) [the pastor] made improper advances to a member of the congregation. If [the presbyter] raises the defenses of truth and of privilege, the court need only determine if the facts stated were true and if [the presbyter] made the statements with malice (a reckless disregard for the truth or falsity). There is no need to determine if [the pastor] was qualified to be a pastor or what those qualifications may be." The court rejected the presbyter's claim that this dispute is ecclesiastical in nature because his comments were made in the course of his official duties. The court did acknowledge, however, that "civil common law has long protected this exact type of communication by granting a conditional privilege." The court quoted the general rule as follows, "The common interest of members of religious … associations … is recognized as sufficient to support a privilege for communications among themselves concerning the qualifications of the officers and members and their participation in the activities of the society. This is true whether the defamatory matter related to alleged misconduct of some other member that makes him undesirable for continued membership, or the conduct of a prospective member. So too, the rule is applicable to communications between members and officers of the organization concerning the legitimate conduct of the activities for which it was organized." That is, the presbyter's statements concerning the fitness of the pastor for the Tennessee church relate to a matter of common interest among members of the church. Accordingly, the presbyter's statements were protected by a qualified or conditional privilege. This means that such statements cannot be defamatory unless they are made with legal malice. In this context, legal malice means either a knowledge that the statements were false, or a reckless disregard as to their truth or falsity. The court noted that "determining whether [the presbyter] acted with actual malice will not require the court to delve into ecclesiastical concerns. Rather, the issue is whether [he] had reasonable grounds for believing the defamatory statements and whether they were motivated by actual malice. This question can be resolved without considering [the pastor's] church related duties and is within the court's jurisdiction."
5. Defenses to Defamation
There are several defenses available to churches that are sued for defamation. These are reviewed in section 4-02.03 in the context of clergy who are sued for defamation.
• A Georgia court ruled that it could not resolve a lawsuit brought by church members against their church as a result of defamatory statements made by other church members. First United Church v. Udofia, 479 S.E.2d 146 (Ga. App. 1996). A church and several of its members were sued by other members who claimed that they had been defamed by several statements made about them. The lawsuit alleged that in the course of a New Year's Eve church service, certain members intentionally and maliciously announced to the congregation that each of the plaintiffs "was a witch and had practiced evil deeds upon family and fellow church members," and that these statements were later repeated to a wider audience at another church service. The "evil deeds" allegedly practiced by the plaintiffs included witchcraft, acts of bodily harm, thievery, causing infertility, stealing United States government files to harm a fellow member, and child abuse. The court concluded that the church could not be liable for defamation: "Although plaintiffs alleged that the church conspired with its members to slander them, the doctrine of respondeat superior [that is, that an organization is responsible for the acts of its agents] does not apply in slander cases. Plaintiffs did not allege or show by any record evidence that the church expressly ordered and directed [its members] to say those very words. … [A] corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff. The same would apply to utterances of a church member. Moreover, the complaint does not state an actionable claim against the church. Allegations of slander by individuals and other leaders of the church do not express a claim against the church itself as a separate entity." The court allowed the members to sue those who had uttered the defamatory words. It rejected the defendant members' claim that they were protected by a qualified privilege. Specifically, the members asserted that their remarks concerning the plaintiffs "were made as testimony or confession during a worship service and thus were a church activity." As a result, the remarks could not be defamatory unless they were made with legal malice, meaning that the members who uttered the remarks either knew that they were false or did so with a reckless disregard as to their truth or falsity. The court disagreed, noting that the statements "were not made in a church tribunal in the course of an investigation of alleged misconduct of church members."
• A Georgia court ruled that a $3 million judgment against certain church members for defaming other members of the congregation was not excessive. However, the court ruled that the church was not liable for the defamatory statements made by the members: "Although plaintiffs alleged that the church conspired with its members to slander them, the doctrine of respondeat superior [that is, that an organization is responsible for the acts of its agents] does not apply in slander cases. Plaintiffs did not allege or show by any record evidence that the church expressly ordered and directed [its members] to say those words. … [A] corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff. The same would apply to utterances of a church member." Esenyie v. Udofia, 511 S.E.2d 260 (Ga. App. 1999).
• An Ohio appeals court ruled that a church could be responsible for defamation as a result of information published in a congregational newsletter about a dismissed secretary. However, the court concluded that a denominational agency could not be liable for the defamation, even though an official had suggested to the church that it publish the defamatory statement. A church secretary claimed that a minister sexually harassed her. A denominational official investigated the charges, but took no action because the minister denied any wrongdoing and there was no other evidence supporting the woman's charges. The minister later dismissed the secretary and published in the parish newsletter a statement that the secretary had been engaging in an open malicious endeavor to discredit him. Following her dismissal, the secretary filed a lawsuit against the church and denomination. She asserted several bases of liability, including defamation. The court allowed the secretary to sue the church for defamation, but not the denomination. It concluded, "However, as to the defamation claim, [the former secretary] contends that the diocese, acting through an archdeacon of the diocese, advised [the minister] what to write in the allegedly defamatory newsletter. Nevertheless, that did not make the publication that of the diocese. The publication was that of [the minister and local church]."