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Court Says Pastor's Defamation Is Not Barred By 1st Amendment

By Howard M. Friedman

In Tubra v. Cooke, (OR App., Jan. 27, 2010), an Oregon appellate court reversed a trial court's judgment notwithstanding the verdict in an interim pastor's defamation claim against his former church and two of its officers. The jury had awarded damages to the pastor, but the trial court held that the First Amendment deprived it of jurisdiction. Disagreeing, the Court of Appeals said:

If the organization is of a religious character, and the alleged defamatory statements relate to the organization's religious beliefs and practices and are of a kind that can only be classified as religious, then the statements are purely religious as a matter of law, and the Free Exercise Clause bars the plaintiff's claim. In defamation law terms, those statements enjoy an absolute privilege.

If, however, the statements--although made by a religious organization--do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose--that is, if they would not "always and in every context" be considered religious in nature--then the First Amendment does not necessarily prevent adjudication of the defamation claim, but the statements may nonetheless be qualifiedly privileged under established Oregon law.

In this case, the alleged defamatory statements--that the pastor had misappropriated money and had demonstrated a willingness to lie--would not "always and in every context" be religious in nature. Thus, even though the statements related to plaintiff's conduct as a pastor of the church, that fact does not render those statements absolutely privileged as a matter of law under the Free Exercise Clause. Rather, that fact gives rise to a qualified privilege.

Full post as published by Religion Clause on January 29, 2010 (boomark / email).