Lawyer Alleges Prayers Incite Followers to Commit Violence Against Him
October 14, 2009

Mary Alice Robbins — Law.com

Michael Weinstein, a former lawyer in the Reagan Administration and former general counsel for Ross Perot, alleges in the original petition in Weinstein v. Ammerman, et al. that defendant Gordon Klingenschmitt, on behalf of The Chaplaincy of Full Gospel Churches and its founder, Elmer Harmon “Jim” Ammerman, also defendants in the suit, issued a “fatwah” against Weinstein in April.

“In other words, Klingenschmitt called upon his followers to commit violence against, or even kill, Michael Weinstein, and even his family,” Weinstein alleges in the petition, filed Sept. 23 in Dallas’ 68th District Court. Weinstein’s wife, Bonnie, joined her husband in filing the suit.

The defendants’ answer is due Oct. 19.

As alleged in the petition, retaliatory actions against the Weinsteins increased after Michael Weinstein founded the Military Religious Freedom Foundation (MRFF) in 2005 and began questioning and ultimately challenging The Chaplaincy’s right to be an official endorser, or approver, of chaplains. [See the plaintiff’s original petition.]

According to The Chaplaincy’s Web site, the U.S. Department of Defense approved the organization to endorse military chaplains in 1984 and other federal, state and local agencies recognize the organization.

The Weinsteins, who are Jewish, allege in their petition that the MRFF, a nonprofit charitable organization, is devoted to protecting and preserving constitutional religious freedom for the nation’s fighting men and women. According to the petition, the majority of the MRFF’s work deals with the problems of individual members of the armed forces and their families who have been discriminated against in the military.

Dallas attorney Randal Mathis, who represents the couple, says the Weinsteins’ suit tests whether threats made in prayer are constitutionally protected.

“Of course, we think the answer to that is ‘no,’ ” says Mathis, a shareholder in Mathis & Donheiser. “We think these things called prayers cause violence.”

[…]

Klingenschmitt, who served as a U.S. Navy chaplain from 2002 until 2007, says, “My prayers never use the words ‘death’ or ‘violence.’ Those are his [Michael Weinstein’s] embellishments of my words. My words were simply to quote Psalm 109 verbatim.” Klingenschmitt says specifically he quoted from the psalm: “Let his days be few” and “Let his posterity be cut off.”

“My prayer to God is a prayer to God — nothing more,” says Klingenschmitt. who declines further comment. Klingenschmitt refers other questions to his attorney, Austin solo Stephen Casey.

Casey says, “I’m very, very certain the courts are going to recognize the protected nature of Mr. Klingenschmitt’s speech.”

In their petition, the Weinsteins recognize that imprecatory prayers are recognized as part of Judeo-Christian tradition, Casey says. The petition describes imprecatory prayers as “prayers for the Lord to protect the weak and faithful from the strong and wicked.” Courts do not intervene in an area of private communication with God, Casey says.

The Chaplaincy issued a written statement that reads: “Rev. Dr. Jim Ammerman and CFCG, upon advice of counsel, cannot comment on specific allegations raised in the suit against him filed by Mr. Michael Weinstein. Dr. Ammerman believes the allegations are unfounded.”

John Whitehead, president and founder of The Rutherford Institute, says his Virginia-based civil liberties organization is representing The Chaplaincy and Ammerman but plans to use Texas lawyers for the case. Whitehead says Weinstein involves an important free-speech issue.

“If you can stop people quoting Bible verses, you’re going to shut down half the churches, synagogues and mosques in this country,” Whitehead says.

Whitehead also says, “When Martin Luther King spoke, violence erupted in many places. He wasn’t inciting violence. Free speech is the last bastion we have in this country. You can’t shut down speech based on speculation.”

Mathis says his goal is to take Weinstein to the U.S. Supreme Court to find out whether a person enjoys First Amendment protection if he cloaks threats in a prayer.

Mathis says the Weinsteins filed their suit in state court because he thinks they will get to trial quicker there. “I think we’ll have a quicker route to discovery,” he says.

In their petition, the Weinsteins allege that the defendants have made terroristic threats against the Weinsteins and their family in violation of Texas Penal Code §22.07. “These threats were made with the intent to and did cause Plaintiffs to be in fear of imminent physical violence,” the Weinsteins allege.

Also in the petition, the Weinsteins allege causes of action for intentional infliction of emotional distress and conspiracy. The Weinsteins are asking the court to enjoin the defendants from making “further terroristic threats” or from encouraging others to harm the Weinsteins. The petition includes an application for a temporary restraining order to prevent the defendants and others acting with them from “destroying, secreting, altering, amending or deleting documents, either in hard copy form or stored electronically, that would harm the Weinsteins’ ability to prove their case.

Doug Laycock, a religious liberty scholar the University of Michigan Law School and a former professor at the University of Texas School of Law, says he believes the Weinsteins will have difficulty proving their case.

“If the claim is they [the defendants] are praying for God to punish these people, that’s not a cause of action. They can pray for whatever they want,” Laycock says.

He cites the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, a case involving a Ku Klux Klan leader who was convicted under an Ohio criminal syndicalism law for a speech he made at a Klan rally. In its per curiam opinion, the high court held that the Ohio law violated Brandenburg’s right to free speech. Using a two-pronged test, the Supreme Court determined that speech is prohibited if it is directed at inciting imminent lawless action and it is likely to incite such action.

Laycock says a court is going to be skeptical that someone will act on a prayer. “I think it’s going to be hard to prove,” he says.

Can You Help Chaps Defend Prayers “In Jesus Name?” Please Pray About Donating to Our Cause.

Original Article

MRFF Suit a Bad Idea
October 7, 2009

Ed Brayton — ScienceBlogs.com

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.

Original Article

Removed due to discovery of Mikey Weinstein’s defamatory quotations from the Dallas Morning News.