MRFF Suit a Bad Idea
October 7, 2009
Ed Brayton — ScienceBlogs.com
As you may know by now, Mikey Weinstein of the Military Religious Freedom Foundation has filed a lawsuit in Texas state court against Jim Ammerman, founder of the Chaplaincy of Full Gospel Churches, and Gordon Klingenschmitt. The suit is filed by Mikey and his wife as individuals, not by MRFF itself. But it’s still a bad idea.
I’m a big supporter of MRFF and I like Mikey very much. But I also have to be intellectually consistent, and since this is the kind of lawsuit I would criticize if filed by a political adversary, I also have to criticize it when it’s filed by an ally and a friend. And I really don’t think filing this suit is a good idea at all.
There are two separate issues here. The first has to do with Ammerman, who is accused of making false claims about Mikey and his family. The complaint says:
He (Ammerman) made speeches and statements attacking Mikey and his family and containing virulent anti-Semitic comments. He described Mikey as a madman, falsely stated that one of Mikey’s sons had renounced Judaism and said other hurtful and despicable things.
The first statement is clearly not actionable. Calling someone a madman is an expression of opinion, which clearly falls under the First Amendment. The fact that by any sane criteria it applies far better to Ammerman, who really is about as loony as they come, does not change the legal judgment at all. Nor is there anything actionable in comments that are “hurtful” or “despicable.”
Is it really winnable? Not likely. Mikey is a public figure, which means the bar is even higher than in a normal defamation suit. He would have to prove that Ammerman knew it to be false and said it with a deliberate and reckless disregard for the truth, and for the purpose of defaming him. That’s a very difficult standard to meet, as it should be.
The second is against Klingenschmitt for his imprecatory prayers. The complaint says:
In April of this year, and again in May, Defendant Klingenschmitt, on behalf of Ammerman and the CFGC, issued a “fatwah” against Mikey (and the Rev. Barry Lynn of Americans United for Separation of Church and State). In other words, Klingenschmitt called upon his followers to commit violence against, or even kill, Michael Weinstein, and even his family (as well as the Rev. Lynn)…
But make no mistake; Klingenschmitt is not appealing to the Lord. He is appealing to the Defendant’s followers, using Biblical quotes as code, urging the Defendant’s followers to acts of imminent violence. Plaintiffs will put on expert testimony, by recognized experts in domestic terrorism, that this is what the Defendant intended by these fatwahs.
But this is an argument that is virtually certain to lose. We had a similar case here in Michigan just recently where a minister called down the wrath of God on a judge and the appeals court overturned the judge’s verdict against the man. The courts generally do not, and should not, consider invocations of supernatural revenge — whether prayers to god or curses or hexes or what have you — to be a real threat.
There is a very real First Amendment problem here. The courts have generally, and correctly, drawn the exception for incitement to violence very, very narrowly. It is not enough that person A says God should punish person B and then person C (an anonymous person) makes a vague threat. There has to be a clear nexus between the spoken threat and an imminent action of violence.
In this case, the complaint alleges that the amount of hate mail and the number of threats received by Mikey and MRFF went up after the defendants began railing against him. But while I certainly sympathize with Mikey and his family, who really have been the target of a lot of vile behavior including swastikas painted on their house and routine death threats, if they can’t show that the defendants explicitly and specifically ordered one of their followers to take a particular action, there just isn’t much of a legal case here.
If the point of this lawsuit is to draw attention to the vile behavior of Ammerman and Klingenschmitt, that’s okay with me. They are both frauds and utterly repulsive people and they need to be exposed for what they are. And I am absolutely in support of MRFF in trying to get Ammerman’s endorsing authority for chaplains revoked by the Pentagon. If this suit helps get some attention for those things, that’s a good thing.
But the legal theory at use in the suit is a dangerous one. I think it’s highly unlikely that the accusations against Klingenschmitt will survive a motion to dismiss and the Ammerman accusations are only marginally more likely to win. And as a general rule I think it’s a very bad idea to use the courts to score political points.
I also think it undermines one’s credibility to file suits that have little chance of winning. You’re giving ammunition to your opponents by doing so. And I think Mikey and MRFF need to tread very carefully here. The work they are doing is very, very important and I support it strongly. I’d hate to see their credibility undermined by a frivolous lawsuit.