Key point 4-02.03. Several 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.
There are a number of defenses to defamation. The more common examples are summarized below.
The maxim that truth is an “absolute defense” to defamation is correct in most states. If an allegedly defamatory remark is true, it is simply not regarded as defamatory by most courts. This defense is based on the principle that the dissemination of truth should not be restricted by the fear of defamation lawsuits. In recent years, courts have devised a new tort (“invasion of privacy”) to punish statements which, though true, disclose private facts about another person in a way that would be highly offensive to a reasonable person. As a result, while truth is a defense to defamation, it does not necessarily insulate one from all legal liability.
- A New York court ruled that a church did not defame a former music director by informing the staff and congregation that he had been dismissed as a result of a false statement in his resume that he had an earned doctorate from the Eastman School of Music. The court concluded: “Plaintiff faces several insurmountable obstacles that required a dismissal of his claims. The “largest obstacle by far, is that the statements made by defendants with respect to plaintiff’s apparent misrepresentation of his academic credentials are true.”31 2008 WL 5781051 (N.Y. App. 2008).
- A Louisiana court ruled that a minister did not defame a church member in an article he wrote for the church bulletin since the article did not contain a false statement concerning the member.32 2008 WL 2065938 (La. App. 2008).
2. JUDICIAL PROCEEDINGS
Remarks uttered during the course of judicial proceedings generally cannot be defamatory.
Persons who consent to defamatory communications generally cannot later claim that they were defamed. For example, persons who consent to a current or former employer providing a letter of reference to a prospective employer generally cannot claim that the letter of reference was defamatory. The consent, to be effective, must of course be voluntary and knowing. Similarly, if a minister agrees to submit an issue to binding arbitration, he or she cannot later assert that the arbiter’s decision is defamatory.
Many courts have allowed victims of defamation to respond to the defamation in a manner which, if viewed independently, might constitute defamation. The victim must be careful to confine his or her remarks to the defamatory statements.
5. MATTERS OF “COMMON INTEREST” AND THE QUALIFIED PRIVILEGE
Many courts have concluded that the law should encourage members of churches and other organizations to share with each other about matters of mutual concern without undue concern about being sued for defamation. As a result, these courts have ruled that church members are protected by a qualified privilege when sharing with other 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 church members will be defamatory only in exceptional cases. The same rule has been applied by a number of courts to statements made in the course of church disciplinary proceedings.
One court explained the qualified privilege as follows:
A privilege will be granted to statements that occur under circumstances wherein any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist that another, sharing that common interest, is entitled to know. … This privilege is termed conditional or qualified because a person availing himself of it must use it in a lawful manner and for a lawful purpose. The effect of the privilege is to justify the communication when it is made without actual malice. Thus, when a statement is privileged, Texas law requires a showing of actual malice to overcome that privilege. Actual malice means with knowledge that the statement was false or with reckless disregard of whether it was false. Reckless disregard requires proof that a false defamatory statement was made with a high degree of awareness of its probable falsity. Generally, when publication is made under circumstances creating a qualified privilege, the plaintiff has the burden to prove malice. … Malice exists when the evidence shows that the speaker entertained serious doubts as to the truth of his statements.33 Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex. App. 1997).
Sharing Negative Information with Church Members
Church leaders occasionally communicate potentially defamatory statements to their congregations. Examples include statements concerning suspected embezzlement by a church employee, allegations of sexual misconduct by a staff member or volunteer, or explanations of why a church employee was dismissed. Before making any statements to the congregation in such cases, church leaders should consider the following points:
- Such statements may be defamatory.
- Such statements will not be protected by the qualified privilege if nonmembers are present when they are made.
- Such statements may be protected by a qualified privilege if they are made to members only. This means that church leaders take steps to ensure that only members are present when the statements are made. This can be accomplished in a number of ways. For example, a special meeting of members is called and only persons whose names are on the church’s current list of active voting members are admitted. As an additional precaution, members present at such a meeting should be asked to adopt a resolution of confidentiality, agreeing not to discuss the information with any non-member under any circumstances. Persons dissenting from this vote should be excused from the meeting. Alternatively, the statements are set forth in a letter that is sent to active voting members (with the notation “privileged and confidential” on both the letter and envelope).
- Consult with an attorney before making any potentially defamatory statement to the congregation (in a meeting or through correspondence).
To illustrate, statements made under the following circumstances have been held not to be defamatory: a communication made between officers of a church or denomination on any subject in which they both have an interest;34 Church of Scientology v. Green, 354 F. Supp. 800 (S.D.N.Y. 1973).communications between members of a religious organization concerning the conduct of other members or officers;35 Willenbucher v. McCormick, 229 F. Supp. 659 (D. Colo. 1964).charges made against a church member during a church investigation into his character;36 Cimijotti v. Paulsen, 219 F. Supp. 621 (N.D. Iowa 1963), appeal dismissed, 323 F.2d 716 (8th Cir. 1963).reading a sentence of excommunication of a church member in the presence of a church congregation;37 Id.an article in a publication produced by a religious denomination describing difficulties in missions work in an area under the control of a particular minister;38 Herndon v. Melton, 105 S.E.2d 531 (N.C. 1958).charges made by an officer of a church against the church’s minister;39 Browning v. Gomez, 332 S.W.2d 588 (Tex. 1960).and disparaging statements made by several church members concerning their minister during a church disciplinary proceeding.40 Joiner v. Weeks, 383 So.2d 101 (La. App. 1980).
- A Mississippi court ruled that a church was not guilty of defamation as a result of information shared during a disciplinary hearing that was conducted pursuant to the church’s bylaws. The court concluded: “The disciplining of a minister is church-related and the doctrine of ecclesiastical abstention requires us to abstain from questioning the manner of a pastor’s discipline. … [The national church] requires that a pastor’s misdeeds be handled in accordance with Matthew 18:15-17. It restricted dissemination of the information contained in the letter to those present at the [church hearing] composed of church officials, witnesses, and people whose presence the pastor requested. … The reading of the letter was clearly sanctioned by national church procedure. There has been no proof that the information contained in the letter was disseminated outside the confines of the closed hearing, despite the pastor’s insinuation that the letter was read to his entire congregation.”41Mallette v. Church of God International, 789 So.2d 120 (Miss. App. 2001).
- Church board members who wrote a letter asking their pastor to resign on account of his failing health were not guilty of defamation. A state appeals court ruled that even if the letter signed by the deacons was defamatory, it was protected by a “qualified privilege” since it “concerned various church interests” including the pastor’s perceived inability to perform his pastoral duties, it was written by members of the congregation (the deacons), and communicated exclusively to other members of the church.42 Mosley v. Evans, 630 N.E.2d 75 (Ohio App. 11 Dist. 1993).
- The Massachusetts Supreme Judicial Court ruled that a pastor could not sue his denomination for publishing a statement informing other pastors and the media that he had been suspended from all pastoral duties because of “formal charges of sexual misconduct.” The court, in dismissing a defamation claim, concluded: “The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in a civil court.” The court cautioned that “the absolute First Amendment protection for statements made by a church member in an internal church disciplinary proceeding would not apply to statements made or repeated outside that context.”43 Hiles v. Episcopal Diocese, 773 N.E.2d 929 (Mass. 2002).
- An Ohio appeals court ruled that a former teacher at a church operated school could not sue school officials for defamation since the allegedly defamatory statements made by the school officials concerned a matter of “common interest” and accordingly were privileged.44 McCartney v. Oblates of St. Francis de Sales, 609 N.E.2d 216 (Ohio App. 6 Dist. 1992).
- A Texas court ruled that a church was not liable for defaming a former secretary as a result of statements made to church members claiming that she had misappropriated church funds. The court concluded that the secretary had not been defamed because the church was protected by a qualified privilege and she failed to prove malice: “All of the members of [the church] have a common interest in the church’s use of their financial contributions to the church; thus, the members have a common interest in information about those funds. The members who made the statements in question reasonably believed that the misappropriation took place and that the board, the members, and the parents shared a common interest in the use of the funds and information about those funds. [The church] reasonably believed that these people were entitled to know of the misappropriation. [It] had a duty to perform for the board, the members, and the parents. [It] made the communications without actual malice.”45 Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex. App. 1997).
Caution. In many states the “qualified privilege” is an “affirmative defense” that may be lost if it is not asserted in an answer to a lawsuit. If your church is sued for defamation as a result of statements shared with members, be sure that your attorney is aware of this rule and raises the qualified privilege as an affirmative defense in the answer to the lawsuit.
6. MITIGATING FACTORS
Although technically not defenses to a charge of defamation, public retraction of a defamatory statement or proof that the allegedly defamed individual provoked a defamatory statement will be admissible for the purpose of mitigating or minimizing damages.