Defamation

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided 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. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m53

Defamation may be defined simply as words that tend to injure the reputation of another. If the words are oral, the defamation generally is referred to as slander. If the words are written, the defamation generally is referred to as libel. Although this terminology is still frequently employed, there is a tendency to refer to slander and libel collectively as defamation. The words must also be communicated to another individual or group, and in fact diminish the esteem, respect, goodwill, or confidence in which the defamed person is held.

It is important to observe that defamation is injury to one's reputation, not to one's feelings. To illustrate, the courts have held that it is defamatory to say of another that he refuses to pay his just debts, that he is immoral, about to be divorced, a hypocrite, a liar, a scoundrel, a crook, or a swindler.¹ In each instance, a court concluded that the victim's esteem or reputation had in fact been adversely affected. Not every derogatory statement will constitute defamation. For example, one court held that it was not defamatory for a religious official to tell a minister that she should have consulted with her religious superiors before choosing a particular minister as her co--pastor since the denomination had “been after [him] for a long time.” The court found these remarks to be “wholly lacking in defamatory content” and not capable of a defamatory meaning.² Other statements that have been held not to be defamatory are the following: newspaper articles describing ex--members' criticisms of a church;³  derogatory statements contained in a letter to a minister when the person who sent the letter had no reason to believe that the minister would share it with others;⁴ and a newspaper article referring to a minister as the “former pastor” of a church.⁵

It is clear from the preceding definition that ministers will be liable for defamation if, in the presence of one or more persons, they make unprivileged statements that adversely affect the reputation of another. In a famous case, a minister publicly charged a member of his congregation with a “vile spirit and utter disrespect for leadership,” and declared that another member had associated himself with a pastor who “under the role of minister of Jesus, is one of Satan's choicest tools.” The court found such remarks to be defamatory.⁶ In another notable case, a Roman Catholic archbishop was found guilty of defaming a priest by publicly referring to him as an “irresponsible and insane” person who was “morally blind” and “disobedient to the laws of the church.”⁷

One minister was found guilty of defaming a former member by publicly referring to him as a “lost sheep” who had attempted to put the minister “out of the church.”⁸ In another case, one minister wrote a letter to another minister, recommending that a particular foreign missionary's endorsement be withdrawn. In the letter, the minister stated that the missionary in question was a liar; that he failed to pay his debts; that he was engaged in a program of destruction, hatred, and “tyrancy”; that his nature was to rule as a dictator; that his aim was to divide and split the churches; and that he was carrying out Satan's plan of division and destruction. The court concluded that such allegations standing alone would be defamatory. The court held, however, that communications made by one minister to another minister involving matters of common concern enjoy a “qualified privilege.” This means that they will not be considered defamatory unless they are made with legal malice. The court defined legal malice as either knowledge that a statement is false or a reckless disregard concerning the truth or falsity of a statement. Since the court could not say that the statements concerning the missionary were known by the minister to be false or were made with a reckless disregard concerning their truth or falsity, it denied the missionary's motion for a verdict in his behalf.¹

Under what circumstances may a minister be sued for allegedly defamatory statements made in the course of a doctrinal explanation in a denominational publication? That was the question before a California state appeals court in an important case.² 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 youth pastor who made statements to members of the congregation about the alleged moral improprieties of the church's associate pastor was found guilty of defamation by a Maryland court. The youth pastor was sued for publicizing information regarding an alleged illicit affair between an associate minister and a church employee. The employee had been raised in the church, and had been active in church work. When she became old enough, she volunteered to work with the church youth group, and with a traveling drama group. The drama group was under the direction of the associate pastor, with whom the employee worked very closely. She accompanied the group for four months each year as a counselor. When she graduated from college, she was hired by the church as the associate director of youth ministry (a salaried position). Because she continued to work with the drama group on a volunteer basis, the employee worked for both the associate minister and youth minister.

While she was on a church--sponsored trip to the Holy Land (led by the associate minister), the youth minister entered her office to look for a file he needed. While there, he discovered a file containing personal notes from the associate minister to the employee. The notes confirmed the youth minister's growing suspicion that the two were engaged in a sexual relationship. He immediately shared the notes with the associate minister's wife, and offered specific details of when and where he believed the two had met privately. A few days later, the youth minister shared his allegations with the employee's mother, and suggested to her that her daughter and the associate minister might not return from their trip overseas. The associate minister's wife discussed the allegations with her husband, and concluded that the relationship was not sexual in nature. The youth minister accepted the wife's decision, and retracted his allegations. He apologized to the associate minister and the female employee for the pain he had caused them, and promised never to repeat his suspicions again. Despite his promise, the youth minister soon repeated his suspicions to members of the drama group, and in very little time the entire congregation was aware of the allegations. Soon the employee began receiving unsettling telephone calls and mail from church members. Eventually, the church convened a special committee that investigated the matter and dismissed the employee. Subjected to scorn in her church and neighborhood, and unable to find a job commensurate with her skills, the former employee sued the youth pastor for defamation of character and invasion of privacy. She also sued the church, claiming that by dismissing her it had “ratified” the youth pastor's allegations.

A jury awarded the former employee $230,000 in general damages, and an additional $105,000 in “punitive damages.” Both the youth pastor and church appealed, and a state appeals court upheld the jury's verdict. The court acknowledged that a plaintiff suing a “public figure” (such as a pastor) for defamation of character must prove not only that the pastor publicized false statements that injured the plaintiff's reputation, but also that the defendant acted with “malice.” Malice, as noted previously, means that the defendant either knew that the statements he uttered were false, or that he uttered them with a reckless disregard as to their truth or falsity. The court concluded that the former employee had established that the youth pastor acted with malice—since he had repeated statements that he had acknowledged were not true.³

The above--cited cases suggest that ministers should refrain from making public remarks that might diminish the reputation, respect, goodwill, or esteem of other persons. However, if a minister does communicate a disparaging remark about another, he or she may be able to assert one or more defenses to a charge of defamation. These defenses are described later in this section.

In recent years, the law has made it increasingly difficult for public figures to successfully sue others for defamatory remarks. The courts reason that when people voluntarily thrust themselves into the public eye, they must expect to be the target of some criticism. Although few reported cases have addressed the question, it is likely that the courts will consider ministers to be public figures. Accordingly, they will be required to show more than a mere impairment of reputation in order to win a defamation suit. They must also demonstrate that the allegedly defamatory remark was uttered with malice—malice in this context meaning either actual knowledge that the remark was false or a reckless disregard concerning its truth or falsity. Malice also must be proven when allegedly defamatory statements relate to a matter of public interest. In one case, a minister who sued a weekly news magazine for publishing an allegedly defamatory article on religious diploma mill racketeering was denied recovery on the grounds that religious racketeering is a matter of public interest and the minister had failed to prove that the magazine published the statements maliciously.⁴ The requirement of proving malice in cases involving public figures on matters of public interest in known as the “New York Times standard.”⁵

The courts have found that it is defamatory to publicly accuse a minister of willful deceit, a greatly confused mind, and the grossest type of moral misconduct;⁶ heresy and disturbing the peace of the church;⁷ low moral character and scandalous and evil conduct that was so bad that it could not be described publicly;⁸ lying, hatred, “tyrancy,” failure to pay debts, and satanic motives;⁹ adultery or fornication;¹⁰ improper handling of church finances;¹¹ ineptness in administrative ability;¹² and being unable to keep his word for 24 hours.¹³

Similarly, the courts have held that it is defamatory to say of a minister that “there has not to our knowledge appeared in public within the memory of the present generation of North Carolinians a more ignorant man,”¹⁴ or that “I would not have anything to do with him or touch him with a ten foot pole.”¹⁵ In most of such cases, the minister was able to demonstrate that the person who uttered the defamatory remarks did so either with the knowledge that they were false or with a reckless disregard concerning their truth or falsity. In the future, it should be assumed that ministers will be required to make such a showing as a precondition to winning a defamation suit.¹⁶

Ministers will be barred from recovering monetary damages for alleged defamation if one of the elements of defamation is absent. For example, a statement, no matter how derogatory, cannot be defamatory if it does not injure the reputation of a minister, or if it in fact is true.

The courts generally have rejected allegations of dismissed clergy that their dismissals caused them to be “defamed.” To illustrate, in one case, a minister who was dismissed after serving 40 years with the Christian and Missionary Alliance (CMA), sued the CMA claiming that his dismissal violated established procedures as well as various “contract and property rights,” injured his reputation, and ruined his emotional health. He demanded $1 million in damages (his wife sought an additional $200,000). A federal appeals 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 labelled.” 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 labelled, 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.” The court concluded:

At bottom, [the ex--minister's] complaint directly involves, and would require judicial intrusion into, rules, policies, and decisions which are unmistakably of ecclesiastical cognizance. They are, therefore, not the federal courts' concern. . . . The [church's] own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention. It is well--settled that religious controversies are not the proper subject of civil court inquiry. Religious bodies must be free to decide for themselves, free from state interference, matters which pertain to church government, faith, and doctrine.¹⁷

Similarly, in rejecting a dismissed minister's claim that his dismissal constituted defamation, an Ohio court observed that such a claim would require the court to “inquire into the truth  or falsity of the statements made” by church and denominational officers and would “require review of subjective judgments made by religious officers and bodies concerning [the former pastor's] conduct of the pastorate and financial misdealings. Inquiry would be ecclesiastical in nature and constitutionally prohibited.”¹⁸

Dismissed church members also have had difficulty persuading civil courts to resolve their claims of defamation. To illustrate, one 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. 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.”¹⁹  

Is it defamatory for religious denominations to state in a denominational publication that a particular minister has been disciplined or dismissed? Many denominations have procedures for disciplining clergy. Often, they publicize the results of such discipline in denominational periodicals. The few courts that have addressed this issue have concluded that such publications are not defamatory. One court ruled that a denomination's publication of a resolution of “disfellowship” announcing the dismissal of a minister was not defamatory.²⁰ The court concluded that denominational publications regarding the discipline or dismissal of clergy cannot be defamatory without a finding “by clear and convincing evidence that the board or its members acted or spoke with [legal] malice.” As noted above, this not only requires that the published statements were in fact false, but also that the denominational officials knew that they were false or made them with a reckless disregard as to their truth or falsity. This is a standard that is rarely proven. Certainly, clergy and churches have a “common interest” in learning of the discipline or dismissal of fellow ministers, and this interest should be preserved by prohibiting defamation suits against denominational publications absent a showing of “legal malice” by clear and convincing evidence. A number of other courts have reached this conclusion.²¹ This is not surprising inasmuch as the same rule applies to lawyers themselves, whose discipline and dismissal are routinely reported in publications of the various state bar associations.

However, statements to “outsiders” may not enjoy the same privileged status. In July of 1986, televangelist Jimmy Swaggart allegedly accused another minister, Marvin Gorman, of committing immoral acts with several women over a period of years.  On July, 16, 1986, Gorman resigned his church, and in August he was formally dismissed as minister by his denomination.  Despite the dismissal of Gorman as a minister by both his local church and denomination, Swaggart and other defendants allegedly continued to make statements casting doubt on the moral character of Gorman, and these statements were circulated to pastors and churches of other denominations as well as to the public at large.  Gorman sued Swaggart and a number of other defendants, charging them with defamation, invasion of privacy, and intentional infliction of emotional distress.  Swaggart responded by arguing that the civil courts had no power to resolve internal church disputes.  

A Louisiana state appeals court acknowledged that the constitutional guaranty of religious freedom forbids the civil courts from interfering “in matters of religious discipline, faith, or custom, as well as to the appointment and removal of ministers.”²²  However, it noted that “there are limits to this prohibition, and in those cases where religious doctrine is not involved . . . civil courts retain the power to resolve disputes.” This was just such a case, the court concluded, since “Gorman clearly is not disputing his dismissal as a minister.  How could he, when his voluntary resignation predated his formal dismissal?” But even more important, observed the court, was the fact that “Gorman's suit alleged defamatory acts which occurred outside” his church and denomination after he had been formally dismissed as a minister.  “Even were we to find that the defendants' post--dismissal statements were legitimately part of the internal church discipline, there is a serious question as to whether the first amendment's protection would extend to those statements allegedly made to the press, the general public, and pastors of other denominations.”  

The court concluded that the statements made to persons outside of Gorman's church and denomination took the case beyond the scope of an internal religious matter:  “This court may be powerless to interpret the religious doctrine which defendants claim compelled them to publicize their accusations to other members of their church, however, this does not mean they can make those accusations outside their church and not face the legal consequences.”  The court rejected the claim that Swaggart and the other defendants were entitled to publicize statements regarding Gorman to the “church at large” (referring to all Christians of whatever persuasion).  This case indicates that churches and denominations should use caution in disseminating the causes (as opposed to the results) of disciplinary action, and should avoid publicizing statements regarding the causes of disciplinary actions to those who are not members of the church or denomination.

One who consents to a defamatory communication will not be permitted to assert later that it was defamatory. For example, one who asks an acquaintance to provide a prospective employer with a letter of recommendation cannot later complain if the letter is derogatory. 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. For example, in one case the qualifications of an individual engaged in the business of testing garments for shatnes (a mixture of wool and linen in one garment prohibited by Mosaic law) were questioned by another person engaged in the same business. Both parties agreed to submit the question of qualifications to a tribunal of three rabbis. The tribunal ultimately decided that the person whose qualifications had been questioned was in fact not qualified to test for shatnes. The disqualified party refused to honor this ruling, which caused the complaining party to publish circulars informing the public of the decision of the rabbis. The disqualified party charged that the circulars were defamatory, but a court disagreed on the ground that the parties had voluntarily agreed to be bound by the decision of the rabbis which was “in the nature of a common law award in arbitration [that] acts as a bar to relitigating essentially the same issue.”²³

d. Self--Defense

Many courts permit a person who was defamed to respond to the defamation in a manner which, if viewed independently, might constitute defamation. The person must be careful to confine his remarks to the charges made against him.

e. Statements Concerning Church Matters

Ordinarily, charges directed against ministers, church officers, or church members, and uttered before a church tribunal or council in the course of church disciplinary proceedings, or entered into the minutes or records of such a proceeding, will not be deemed defamatory unless legal malice is proven. As has been noted before, malice in this context means that the person making a disparaging remark either knew the statement to be false or made it with a reckless disregard concerning its truth or falsity. To illustrate, disparaging statements made by several church members concerning their minister during a church disciplinary proceeding were held not to be defamatory since they were entitled to a “qualified privilege” and hence could be defamatory only if made with malice.²⁴

More generally, there is legal precedent for the proposition that communications uttered between church members and relating to a matter of mutual concern to members of the church will not be considered defamatory if legal malice is absent. 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;²⁵ communications between members of a religious organization concerning the conduct of other members or officers;²⁶ charges made against a church member during a church investigation into his character;²⁷ reading a sentence of excommunication of a church member in the presence of a church congregation;²⁸ 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;²⁹  and charges made by an officer of a church against the church's minister.³⁰

f. 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.

Legal Liability—Negligence

Undue Influence

Invasion of Privacy

Clergy Malpractice

Contract Liability

Securities Law Violations

Failure to Report Child Abuse

Diversion of Church Funds

State Regulation of Psychologists and Counselors

Seduction of Counselees and Church Members