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Supreme Court of Florida: Jews for Jesus v. Edith Rapp

There’s a fine, not always so-clear line, between church and state which seems too often to turn on whose ox is being gored or ignored. There’s a different line that can be crossed between individuals when religion is an issue: It’s called defamation. And it’s about as hazy a line as the church-state line. This is a perfect case in point.

Here are the facts: Bruce Rapp is Jewish. He also believes in Jesus and worked for Jews for Jesus, an outreach group which shares the Gospel of Christ with other Jews. His Jewish father Marty and step-mother Edith lived in Florida. Bruce’s father was dying and Bruce spent months sharing his faith with dad, believing that acceptance of Jesus, even for Jews, is the way to salvation. The court quoted Bruce’s account of events from the Jews for Jesus newsletter:

“I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for sometime and I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d [sic] gave us Y’Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me-praise G-d! Pray for Edie’s faith to grow and be strengthened. And please pray for my father Marty’s salvation.”

This newsletter was published on the internet. It was seen by one of Edith’s relatives (why was she looking at the Jews for Jesus website?). As any Jewish believer in Jesus knows, such news is frequently not well received by Jewish relatives and friends. Whatever Edith did or didn’t do in private, when Bruce’s account of her salvation experience hit cyberspace and became family news, Edith sued.

Edith’s complaint was that Jews for Jesus defamed her by claiming, without her permission, that she had “joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the philosophy of Jews for Jesus.” Her complaint alleged “(1) false light invasion of privacy; (2) defamation; and (3) intentional infliction of emotional distress.”

Jews for Jesus moved to dismiss. After considerable battles over whether Edith’s suit even stated a cause of action, after she re-filed new and improved claims and after further motions, the lower court dismissed all of Edith’s claims. Edith appealed.

The Fourth District Court of Appeals affirmed the dismissal of the defamation claim concluding “the ‘common mind’ reading the newsletter would not have found Edith to be an object of ‘hatred, distrust, ridicule, contempt or disgrace.’” In doing so, it also rejected this generally accepted standard for defining defamation: “a communication is defamatory if it ‘prejudiced’ the plaintiff in the eyes of a ‘substantial and respectable minority of the community.’” As for the tort of false light, the court was uncertain such a claim existed in Florida. That question was certified to the Florida Supremes to answer and was taken up by Jews for Jesus.

Essentially, the high court found that defamation and false light claims have many of the same elements: “[F]alse light has the following six elements: (1) publicity; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity; (4) actual damages; (5) publicity must be highly offensive to a reasonable person; and (6) publicity must be about the plaintiff.” “Defamation has the following five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.”

After reviewing the history of false light claims in Florida and elsewhere, the high court concluded that false light is based on a subjective standard, i.e.,“publicity [which] must be highly offensive to a reasonable person” and thus creates a “moving target whose definition depends on the specific locale in which the conduct occurs or the particular sensitivities of the day.” Accordingly, it dismissed the false light claim. Score one for Jews for Jesus.

But given the sensitivities that surround Jewishness and Jesusness, perhaps more so in Florida than in many other states, the court also scored one for Edith: It found that “the Fourth District failed to embrace the standard that a communication is defamatory if it prejudices the plaintiff in the eyes of a ‘substantial and respectable minority of the community.’” So it reinstated the defamation claim and left it to the lower court to figure out if Edith was prejudiced in front of a “substantial and respectable minority of the community,” namely her Jewish friends and family.

While the District Court found that the “the ‘common mind’ reading the newsletter would not have found Edith to be an object of ‘hatred, distrust, ridicule, contempt or disgrace’" for believing in Jesus, the Supreme Court recognized that there is a potential cost to a Jewish person to profess faith in Jesus or to be spoken about as if they did. A “substantial and respectable minority” may disapprove and cause one to suffer real damages.

Since Jesus walked the earth there has always been a personal cost to Jews who profess faith in Jesus and the issue for the individual has always been the same: Is it worth the cost?

For Bruce Rapp it was. For Edith Rapp, the jury’s still out. As for whether it's defamation to say someone believes in Jesus, it depends which side of the line you're on and what you believe about crossing it.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Damages , Other State Courts , Religion , The Internet

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U.S. Court of Appeals for the Sixth Circuit: Phelps-Roper v. Strickland

Here’s the good news: Common decency still has a recongnized place in America, notwithstanding indicators to the contrary.

Topeka Kansas-based Westboro Baptist Church cannot protest at funerals in Ohio. These are the lovely people who believe God is punishing America for the sin of homosexuality by killing Americans, including soldiers. These “church” members believe that “protesting at funerals is an effective way to convey the message of their church.” To make them even more effective messengers, their preferred venues are funerals of soldiers where, as we’ve seen on TV, they share such inspirational messages as “God Hates Fags,” “Thank God for Dead Soldiers” and “Thank God for 9/11.”

Ohio law proscribes protests at funerals. It’s been the law since 1957 with two amendments since. The original law regulated picketing at funerals and funeral processions. The amendments put time limits on protests (from one hour before to one hour after the funeral), specified a 300 foot buffer zone for permitted protests and expanded the definition of “protest” to include “other protest activities.”

Plaintiff, the charming Shirley Phelps-Roper, contended that she wanted to protest at Ohio funerals in the future and that the law violated her Constitutional right to free speech. She had been protesting at funerals for quite some time making a name for herself and for her church along the way.

While the District Court struck down that part of the statute that prohibited protests at “funeral processions” (since it created a “floating buffer zone” which was Constitutionally overbroad) it upheld the rest of the law. So too did the Court of Appeals. It found that the Funeral Protest Provision was content-neutral (no one could protest at funerals, not just the loving members of Westboro Baptist); it served an important governmental interest—balancing the First Amendment rights of protestors with the rights of funeral attendees to grieve, memorialize and gather in honor of the deceased, and; the funeral protest provision is narrowly tailored—300 feet away and no protests from one hour before to one hour after. As the court noted, there are other ways for these protestors to get their message out and “Phelps-Roper is not entitled to her best means of communication.”

Here’s the really sick part: Ms. Phelps-Roper “does not claim that funeral protests are [even] her most effective channels of communication” or that “mourners at a funeral are...her primary audience.” For her, a “funeral is the occasion of her speech, not its audience.”

Well isn’t that special.

Solidiers die and at the moment of heart-breaking grief and remembrance, Phelps-Roper sees her chance for 15 minutes of fame by reviling the dead with hate-filled venomous speech. Pathetic. But still protected. Partly.

Maybe Westboro Baptist would be better off knowing what God loves rather than what it claims God hates. After all, the Bible says we should “comfort all who mourn,” and that those who do so will be called “oaks of righteousness.” Those who do what Phelps-Roper and her “church” do are more like poison oak. And if they really believe what's written in the Bible, they will have to answer for spreading it in God's name.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Homosexuality , It's My Right! , Religion , Speech , Strange but True , U.S. Court of Appeals

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U.S. Court of Appeals for the Fifth Circuit: Oliver v. Quarterman

In New York State, before a witness takes the stand at trial, he either places his hand on a Bible and swears to tell the truth, or, if he objects to swearing, he affirms under penalty of perjury to tell the truth. Then he can take the stand, say whatever he wants, and be cross examined accordingly.

But what happens if that Bible ends up in the jury room when deliberations are under way? The Oliver decision is a must read for anyone interested in the relationship between the Bible and the gavel. Khristian Oliver was tried for murder in Texas: Joe Collins came home to discover Mr. Oliver burglarizing his home. Oliver then shot Mr. Collins and while he lay mortally wounded on the ground, struck him several times in the head with a rifle butt, killing him. After a trial, Oliver was convicted of capital murder and sentenced to death.

Mr. Oliver appealed. He claimed that there were at least four Bibles in the jury room and that one juror read a Bible aloud to a small group of other jurors, thereby influencing their deliberations. A number of passages were read, but this one from the book of Numbers gave rise to his appeal: “And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.” This hit too close to home for Mr. Oliver. Given the Bible's authority among some folks, and that it is not evidence or the law of Texas, Oliver argued for a new trial. The state court entertained his complaint and held hearings, but concluded that the jury did not act improperly. Although some jurors had looked at the Bible, the court held that the jury was not affected “by any outside influence” and had rendered its verdict in accord with court’s instructions and the evidence presented.

After exhausting his state court appeals, the defendant sought a writ of habeas corpus from the US District Court. It was denied. He then took his case to the U.S. Court of Appeals.

Jury tampering occurs when a jury is influenced by any means except evidence presented in open court. Anything not presented in court is an external influence and is generally not permitted. Was the Bible, particularly the reading of the damning passage that mandates death for a person who kills someone by striking him with iron (as defendant Oliver did) an external influence on the jury? According to the Fifth Circuit Court of Appeals, it was both an external influence and Constitutional error: “[T]he jury’s use of the Bible here amounts to a type of ‘private communication, contact, or tampering’ that is outside the evidence and law...” Of course this begs a number of questions, not the least of which is: A type of private communication or contact with whom?

Putting aside that question for the moment, the court, in fact, accepted Oliver's argument. But did it matter?

Because this was a habeas petition, the Federal court had to determine if the Bible’s external influence was harmless error, which in these proceedings meant whether it had “a substantial and injurious effect or influence in determining the jury’s verdict.” Since the Texas courts already held hearings on this question and decided the jury was not influenced by the Bible or the passages read, the U.S. Appeals Court ruled that the accused “failed to rebut the state court’s factual finding that the Bible did not prejudice the jury’s decision.” Accordingly, Oliver's writ of habeas corpus was denied again.

For now, the verdict stands.

Maybe there are other avenues of appeal for Mr. Oliver, and maybe he will get the last laugh, but the Bible also says “The wicked plot against the righteous...but the Lord laughs...because he knows their day is coming.” For Mr. Oliver, this is no laughing matter. Maybe he would be best served appealing his judgment pro se by seeking his own private communication and contact before that day arrives.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Crime and Punishment , Culture War , Habeas Corpus , Other State Courts , Religion , U.S. Court of Appeals

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New Jersey Supreme Court: Culter v. Dorn

As they say in Jersey, “You talkin' to me?”

That question had to be in Jason Culter’s mind every time he heard comments in the office about “those dirty Jews.” Every time he was referred to as “the Jew.” Every time he was asked by his boss “where [his] big Jew… nose was?” And the time his coworker suggested that we should “get rid of all those dirty Jews.”

And what if all those folks making the comments were armed. Do you call the police?

You don’t if you’re a cop.

And you don’t if the people making the comments were also cops and coworkers.

This was the work environment at the Haddonfield New Jersey Police Department. Not exactly Jersey’s Finest.

Culter was reluctant to make waves and thought he was thick-skinned enough to ignore it all, but a few threatening incidents and comments too many put him over the top. He brought an action under New Jersey’s Law Against Discrimination (LAD) claiming he was subjected to a hostile work environment because he was Jewish. In its defense, the police department claimed Culter was a willing participant in all the fun and that it was all just harmless police department chop busting. The judges were not amused and seemed not to get the joke.

According to the court, “The LAD’s promise of a discrimination-free workplace” extends to matters of faith. “Antagonistic, degrading, or demeaning conduct in the workplace that is directed at or about one’s religious faith, or ancestry, can be discriminatory and can amount to an unlawful hostile environment.” The Haddenfiled precinct was such a place.

The court found that Culter met the threshold for demonstrating a religion-based discriminatory work environment. It also found that the standard of proof to demonstrate a religion-based hostile environment was no different than what was required to show a sexually or racially-based hostile workplace. Hatred and job-related abuse of authority come in all shapes and sizes, but it’s all equally unacceptable.

Given the times we live in, one has to wonder what the members of the Haddonfield Police Department were thinking. Or does anti-Semitism make you both reckless and clueless. These cops would have been better off if they followed there own advice and remained silent. After all, the original “Miranda” warning comes from an old Jewish book (Proverbs 17:28) which says this: “Even a fool is thought wise if he keeps silent, and discerning if he holds his tongue.” Alas, such was not the case here, and before the New Jersey Supreme Court, the Haddonfield Police Department didn’t have a prayer.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Employment Discrimination , Injuries , Other State Courts , Religion , Speech

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U.S. District Court for the Northern District of California: Michael Savage v. Council on American-Islamic Relations, Inc. et. al.

The Savage Nation is Dr. Michael Savage. The Bronx-born broadcaster has one of the most popular radio talk shows in the country. His brand of libertarianism and conservatism are dished up in flaming doses of Truth-Gone-Wild. Some would call his advocacy the scorched-earth approach; others would say he wields facts like a bludgeon without regard to consequences or sensibilities. Whatever your view, he is no wallflower and no stranger to controversy. He infuriates, elucidates and inundates all at once.

After railing against Islamic extremism, Mahmoud Ahmadinejad and certain aspects of the Koran, efforts were made by the Council on American-Islamic Relations (CAIR) to boycott his show and have him removed from the air. Moreover, CAIR aired excerpts from Savage Nation broadcasts on its website to rally opposition to his program. Savage would have none of it. He filed suit against CARE for racketeering and for copyright infringement.

Unfortunately for the good doctor, “fair use” allows critics to appropriate portions of his speech to make their point. Such use is not copyright infringement. As for Savage’s racketeering claim—that CAIR is not a civil rights group at all, but a political organization and front for terrorist groups—the court found the pleadings insufficient to support the claim and dismissed with leave for Savage to re-plead and try again.

Has CAIR been unfairly maligned? Has Savage? Has a raw nerve been struck? Or is it Truth that’s taking a beating? When it comes to debates involving terrorism, free speech, talk radio, Islam and the right to criticize, Truth is the first victim. Truth is always the first victim in important debates, whether they’re about abortion, global warming or the war on terror. Thankfully, Truth is also the last thing standing when all is said and done and the fog of battle lifts.

Savage battles over Truth are good for the nation. They draw us into the controversy, make us examine the facts and choose sides by reaching our own conclusions. That’s the privilege and responsibility of citizens who live in a free society. That, and serving jury duty.

And that’s the Truth.

11/17/08 Addendum: CAIR sued Savage for nearly $200,000 in legal fees after this action was dismissed. The court determined that while Savage’s claim was initially defective, the allegations he made about CAIR were not frivolous. So for CAIR, "No soup for you!" And no legal fees.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Religion , Speech , Terrorism , U.S. District Court , War on Terror

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Texas Supreme Court: Pleasant Glade Assembly of God v. Schubert

If you believe in Jesus, you’ve come to understand him from the New Testament. Well, the same scriptures that teach about Jesus also teach about demons and the laying on of hands by church elders. If you accept Jesus, then consistency demands that you accept the other things the Bible teaches. Or does it?

17 year old Laura Shubert attended the Pleasant Glade Assembly of God Church. In fact, her own father was an Assembly of God pastor and missionary. The Assemblies of God is a Pentecostal denomination. It “believes in the literal teachings of the Bible with respect to spirits, demons, demon possession and the ‘casting out’ of demons.” It also believes that people can be “slain in the spirit,” which, according to the church, “is a positive experience in which the holy spirit comes over a person and influences them.” The Bible refers to this as being “filled with the spirit” and believers are encouraged to be filled with the spirit again and again.

Laura Shubert had such an experience. In fact, she had it twice in a matter of days. While slain in the spirit the second time, however, Laura’s physical reaction was so significant that the senior pastor was summoned. He laid hands on Laura and prayed for her. Because of the animated way Laura was reacting, she suffered carpet burns, a scrape on her back and minor bruises.

Laura’s experience led to a meeting between her father, Pastor Shubert, and Pastor McCutchen, the one who had laid hands on Laura. A theological discussion ensued and both agreed that Christians cannot be demon possessed (there was apparently a question whether Laura was manifesting the Holy Spirit or was being tormented by an evil spirit). As a result of that meeting, the church agreed to teach more on the subject so its young members would better understand what the Bible says about being filled with the spirit and what it says about demons.

Notwithstanding the theological explanations given, Laura subsequently became depressed, dropped out of school and abandoned her plan to attend Bible College. She was finally diagnosed with post-traumatic stress disorder, and she and her parents blamed the church and sued Pleasant Glade for the injuries and emotional distress she suffered. (There apparently was not much debate about the Bible’s proscription about believers suing fellow believers.)

Laura won at trial. A jury awarded her damages of $300,000 for pain and suffering and other losses. The Court of Appeals in Texas affirmed most of the decision, but the Texas Supreme Court reversed it all.

Laura’s experience, good, bad or otherwise, was not a matter for the courts. As the Supreme Court explained, “Whether the defendants had intentionally or negligently misapplied church doctrine to Laura during these events was not a justiciable controversy...because the ‘First Amendment [gave] Pleasant Glade the right to engage in driving out demons.’”

The court also found that “The ‘laying of hands’ and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.”

Laura’s case was dismissed.

The courts have always struggled to balance religious expression and individual rights. In this case, whatever happened “in the spirit” was clearly not the court’s business. But this sort of controversy is not going away. The Bible does more than explore spiritual matters, it judges certain matters of the flesh, including lust, homosexuality, pride and adultery; it is only a matter of time before the words of the Bible are challenged as so offensive they must be silenced. Another, less constrained court, may agree and choose to step into the fray.

God help us.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Damages , Injuries , Other State Courts , Religion , Strange but True

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U.S. District Court, Eastern District of New York: Fowler v. Zondervan;
Fowler v. Thomas Nelson

In the King James Bible, 1 Corinthians 6:9-10 says this:

“Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.”

The New International Version (NIV) translates the same verse this way:

“Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.”

Bradley LaShawn Fowler, who is gay, does not appreciate the translations which identify homosexuals among the sinners who will not inherit the Kingdom of God. So he did what any offended individual has a right to do: He sued the publishers of the Bible. Referring to this translation as a “malicious conspiracy” Fowler claims it has destroyed relationships with his family and caused him all sorts of mental anguish including loss of self esteem and bewilderment. He is seeking $70 million dollars in damages in the two lawsuits.

It used to be that if you didn’t like what the Bible said, you either ignored it or disparaged it. But times have changed. There seems to be a movement to silence those with whom we disagree and the courts are often the vehicle used to accomplish the task. If, as Mr. Fowler hopes, one man can censor the Bible’s reference to homosexuality (one wonders if Mr. Fowler will be filing separate actions over Romans 1:26-27 and Leviticus 20:13), then liars, adulterers, thieves, drunks and other aggrieved readers may well follow suit. Who knows, if Fowler’s lawsuits are permitted to proceed, he may cause a revival as other potential litigants search the scriptures for verses that offend their sensibilities, only to find their salvation.

We used to cherish the market place of ideas where we battled each other with thoughts and words and trusted that the most worthy and profound ideas would rise to the top, persuade us of their value and elevate our society. That is what made America great. We let every one have his say, no matter how absurd, no matter how silly, no matter how divisive. Juxtaposed against the profound, the wise and the loving, the former ideas just couldn’t withstand scrutiny or analysis and in the end were rejected. Now, it seems, we have lost some of our confidence in our fellow citizen's ability to choose wisely, and instead look to the courts to shut the mouths of the other side and to claim that our right to be free of offense is greater than the freedom to speak we claim to cherish.

There’s something offensive about all this that can make you want to scream. Which is, after all, our right.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Culture War , Homosexuality , Religion , Speech , Strange but True , U.S. District Court

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