But I Tell You, Resist A Censor. If Anyone SLAPPs You, SLAPP Back.

Law

So, approximately eleventy billion people wrote to me with tips about the story of Beaverton Grace Bible Church in Oregon and its pastor, Charles O'Neil, suing a former parishioner and her family members for negative online reviews. It's a story in my wheelhouse, but I elected to wait until I could get my hands on the primary documents — Oregon doesn't maintain court records online, it seems. Now I've got them, and can share them with you.

JulieAnne Smith is apparently a former member of Beaverton Grace Bible Church and now a critic of it. She's written reviews about it online, and has a web site devoted to critique of it and of its pastor, Mr. O'Neil. At some point Mr. O'Neil had enough. He issued a self-justifying press release suggesting that a pastor at a different church had recommended that he sue:

DEFAMATION IS A CRIME: Pastor Chuck O’ Neal, his wife, his children, and Beaverton Grace Bible Church as a whole, have suffered JulieAnne’s hateful lying slander for well over three years. After seeking counsel from a pastor on staff with Grace Community Church (under Pastor John MacArthur) and reading him several excerpts from JulieAnne’s endless defamation, he recommended that we FILE A LAWSUIT in an appeal to Ceasar as the Apostle Paul did when falsely accused of crimes against God and the state. The lawsuit has been filed in the Washington County courthouse.

That other church refuted the notion with a smackdown of Biblical proportions.

O'Neil did eventually sue on his own behalf and on behalf of his church, naming Smith, her daughter, and other people who had commented on the church and O'Neil on the internet. You can read the amended complaint here. From a First Amendment lawyer's perspective, the complaint is notable because so much of it complains about expressions of opinion. From reading Pastor O'Neil's press release, one would expect the complaint to focus on very specific and factual allegations of wrongdoing levied against him. Instead, the complaint is replete with classic characterizations and statements of opinion not susceptible to defamation analysis — claims that the defendants said things like "You will be fine at this church if you never question the elders or pastor" and "Something creepy about this church" and that the church is an "oppressive and abusive environment." Such statements of opinion, which do not imply provably false statements of underlying fact, are protected by the First Amendment and generally are not subject to defamation analysis.

The defendants in the case have two things going for them. First, Oregon has a robust anti-SLAPP statute similar to California's venerable statute and Texas' new statute. Under Oregon's statute, a defendant may file a special motion to strike. If that motion establishes that the lawsuit is premised on one of the categories of speech protected by the statute — for instance, "[a]ny other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest," the burden shifts to the plaintiff to present admissible evidence showing that they can prevail on the merits. A prevailing defendant is entitled to attorney fees, and filing the motion stays discovery — two essential elements of a strong anti-SLAPP statute.

Second, defendants are fortunate to be represented by a vigorous and effective advocate. Oregon attorney Linda Williams is representing Ms. Smith and her daughter. She's filed a SLAPP motion directed both at the original complaint and the amended complaint — you can read the two parts of it here and here. I think the motion is simply superb — well-researched, well-written, and persuasive, and generally an informative pleasure to read. I've not encountered Ms. Williams before, but having read this, she's at the top of my list if I ever need to find counsel in Oregon. Read the initial motion. In addition to laying out the First Amendment and anti-SLAPP issues, it includes a fascinating discussion of church autonomy doctrine and a discussion of the limits of court intrusion into religious affairs.

By contrast, the church's response to the motion is, with all respect, rather weak and perfunctory, particularly compared to the motion papers. That's not a confident prediction that the defendants will prevail — the years have made me too cynical to believe that the best papers, the best legal argument, or the right side reliably wins. The church's response does, by the way, raise one interesting point about what might be called "internet law" — when does the statute of limitations start to run for purposes of defamation when the challenged statement is online? The church's position seems to be that as long as the post remains online there is "continuing publication" — suggesting that the statute of limitations never runs as long as a speaker maintains their post. I find that very problematical, as it allows the plaintiff to time the lawsuit strategically (possibly after witnesses and evidence related to the post are no longer available), and does not require diligence on part of the plaintiff.

This is one to watch. I'll keep an eye on the result of the SLAPP motion and report back. I suspect that Pastor O'Neil, and the church, may learn unpleasant lessons about the Streisand Effect from this case.

Last 5 posts by Ken White

18 Comments

17 Comments

  1. Charles  •  May 18, 2012 @9:16 am

    The idea that internet publication is permanent should be a non-starter, legally. The New York Times archives are permanent as are the old musty copies of the New York Times bound in a library's collections. How is a blog MORE permanent?

  2. Dan Irving  •  May 18, 2012 @10:24 am

    Some of the Google Reviews are frickin hilarious.

  3. Demosthenes  •  May 18, 2012 @10:51 am

    Charles — I don't know if I have a good answer to your question, but something tells me the church has a point here (and only here).

    A blog post is freely and permanently available, just so long as the blog isn't deleted. Even after it's down, the information can still be accessed if a search engine or a web surfer got a screenshot. And unlike many older articles in a traditional newspaper (even these days, when archives are online), it can be found by search engines and random passersby in perpetuity.

    None of that is a legal argument, of course…I'm not a lawyer. And Ken has a point that interpreting the law that way would provide a plaintiff several potentially unfair advantages — which might have a chilling effect on speech. This might even be an area where we just have to admit we need new legislation to clarify what publishing online means. It's a pity that the issue couldn't have come up in a more worthy case, since this one looks like an easy dismissal to me.

  4. Scott Jacobs  •  May 18, 2012 @10:53 am

    claims that the defendants said things like "You will be fine at this church if you never question the elders or pastor"

    The pastor seems determined to prove this statement true by any means necessary…

  5. Josh  •  May 18, 2012 @11:28 am

    Scott-

    Isn't irony wonderful? Especially when the people doing it are too myopic to realize it?

  6. Robert Hewes  •  May 18, 2012 @11:31 am

    I was thrilled to see that my fair state (FL) has an anti-slapp law. Then I read it and was very, very sad. For those interested, there's a good list at the First Amendment Center
    http://archive.firstamendmentcenter.org/about.aspx?id=13565

  7. Bob  •  May 18, 2012 @11:34 am

    I'm lazy.. one of the links in here says the defendant accused the pastor of child abuse, and of allowing a child sex offender unsupervised access to the children at the church. Surely those statements are "factual" and in the lawsuit?

  8. Patrick  •  May 18, 2012 @11:35 am

    Demosthenes, it seems your concern is premised on the ease of finding a blog post, rather than the idea that each new access of a blog post is a new publication, the minister's argument.

    Granted that the internet makes finding information easier, but otherwise how is it different? I can find a defamatory book published twenty years ago in a library. Other than that I had to drive to the library and use its card catalog (i.e. it wasn't easy), how is website publication any different from paper?

  9. Scott Jacobs  •  May 18, 2012 @11:50 am

    Wow… The section at the link provided by Robert lists Illinois, but it looks like it's just a statement by the worthless legislature…

    Time to dig for the actual statue for Illinois…

  10. Ken  •  May 18, 2012 @11:51 am

    The Illinois statute sucks.

  11. Scott Jacobs  •  May 18, 2012 @12:00 pm

    Yeah… That's what it is looking like.

    That is… Unfortunate…

  12. Joe  •  May 18, 2012 @1:18 pm

    Roberts list doesn’t include Texas either, so it must be dated. In Texas sometimes we’re a little slow on the draw but looks like we’ve got a decent beast of an anti-SLAPP.

    It basically states that on top of the fees and costs, the court "shall" award the defendant damages "sufficient to deter the party who brought the legal action from bringing similar actions." It's not optional – the judge has to give some sort of punitive damage award but the discretion lies in the size of the damages and it will be interesting to see if any judges actually impose big fines.

    In Texas we don’t mess around – if you get SLAPPed once in Texas it looks like you might get SLAPPed hard enough that you won’t be standing up long enough to get SLAPPed again.

  13. Demosthenes  •  May 18, 2012 @1:22 pm

    Patrick: You have an excellent point. It is clear to me now that I had a misconception of what a "continuing publication" meant, and let that drive my thought process. Consider my concerns withdrawn.

  14. Cathy  •  May 18, 2012 @3:03 pm

    I'm not sure if there's been a case in Oregon, but other states have extended the single publication rule to the Internet. See the case(s) discussed here (http://blog.ericgoldman.org/archives/2009/02/republishing_so.htm) and here (http://blog.ericgoldman.org/archives/2011/06/another_ripoff.htm).

  15. nlp  •  May 18, 2012 @3:55 pm

    As one of the eleventy billion, I'm glad to know that the defendants have a good lawyer who knows what to do in such cases. I hate bullies, no matter how they try to hide behind the frosting.

  16. Ken  •  May 18, 2012 @3:56 pm

    That's not frosting.

  17. Stephen  •  May 21, 2012 @11:41 am

    From the church's rebuttal filing:

    "Does a small church in Beaverton, Oregon command or attract the interest of a substantial portion of the public on a nation-wide or world-wide basis?"

    Heh.

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