Opinion issued January 5,=20
=
2006
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-04-00231-CV
HARVEST HOUSE=20
PUBLISHERS, JOHN ANKERBERG, AND JOHN WELDON,=20
Appellants
V.
THE =
LOCAL CHURCH,=20
AN UNINCORPORATED ASSOCIATION; LIVING STREAM MINISTRY, A =
CALIFORNIA=20
NON-PROFIT CORPORATION; THE CHURCH IN HOUSTON, A TEXAS NON-PROFIT=20
CORPORATION, THE CHURCH IN ARLINGTON, A TEXAS NON-PROFIT =
CORPORATION;=20
CHURCH IN BEAUMONT, A TEXAS NON-PROFIT CORPORATION; THE CHURCH IN =
CORPUS=20
CHRISTI, A TEXAS NON-PROFIT CORPORATION; THE CHURCH IN DALLAS, =
INC., A=20
TEXAS NON-PROFIT CORPORATION; CHURCH IN DENTON, INC., A TEXAS =
NON-PROFIT=20
CORPORATION; THE LOCAL CHURCH IN EL PASO, A TEXAS NON-PROFIT =
CORPORATION;=20
THE CHURCH IN FORT WORTH, INC., A TEXAS NON-PROFIT CORPORATION; =
THE CHURCH=20
IN HUNTSVILLE, INC., A TEXAS NON-PROFIT CORPORATION; THE CHURCH IN =
PLANO,=20
A TEXAS NON-PROFIT CORPORATION; CHURCH IN ODESSA A TEXAS =
NON-PROFIT=20
CORPORATION; THE CHURCH IN RICHARDSON, A TEXAS NON-PROFIT =
CORPORATION ;=20
THE CHURCH IN SAN ANTONIO, INC., A TEXAS NON-PROFIT CORPORATION; =
THE=20
CHURCH IN TEXARKANA A TEXAS NON-PROFIT CORPORATION; THE CHURCH IN =
TYLER, A=20
TEXAS NON-PROFIT CORPORATION; THE CHURCH IN FORT STOCKTON, A TEXAS =
NON-PROFIT CORPORATION; CHURCH IN LAREDO, A TEXAS NON-PROFIT =
CORPORATION;=20
CHURCH IN ALBUQUERQUE, A NEW MEXICO NON-PROFIT CORPORATION; THE =
CHURCH IN=20
ANAHEIM, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN =
ARCADIA, A=20
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN CERRITOS, A =
CALIFORNIA=20
NON-PROFIT CORPORATION; THE CHURCH IN ATLANTA, INC., A GEORGIA =
NON-PROFIT=20
CORPORATION; THE CHURCH IN BATON ROUGE, INC., A LOUISIANA =
NON-PROFIT=20
CORPORATION; CHURCH IN BELLEVUE, A WASHINGTON NON-PROFIT =
CORPORATION; THE=20
CHURCH IN BELLINGHAM, A WASHINGTON NON-PROFIT CORPORATION; THE =
CHURCH IN=20
BERKELEY, THE CHURCH IN BIRMINGHAM, AN ALABAMA NON-PROFIT =
CORPORATION;=20
CHURCH IN BOCA RATON, INC., A FLORIDA NON-PROFIT CORPORATION; THE =
CHURCH=20
IN BOISE, AN IDAHO NON-PROFIT CORPORATION; THE CHURCH IN =
CAMBRIDGE, INC.,=20
A MASSACHUSETTS NON-PROFIT CORPORATION; THE CHURCH IN CARY, A =
NORTH=20
CAROLINA NON-PROFIT CORPORATION; THE CHURCH IN CHULA VISTA, A =
CALIFORNIA=20
NON-PROFIT CORPORATION; THE CHURCH IN COLLEGE PARK, A MARYLAND =
NON-PROFIT=20
CORPORATION; THE CHURCH IN CYUPRESS, A CALIFORNIA NON-PROFIT =
CORPORATION;=20
THE CHURCH IN DAVIS, A CALIFORNIA NON-PROFIT CORPORATION; THE =
CHURCH IN=20
DIAMOND BAR, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN =
DUNN=20
LORING, A VIRGINIA NON-PROFIT CORPORATION; CHURCH IN EL MONTE, A=20
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN EUGENE, AN OREGON =
NON-PROFIT CORPORATION; THE CHURCH IN FAIRBORN, AN OHIO NON-PROFIT =
CORPORATION; THE CHURCH IN FRESNO, INC., A CALIFORNIA NON-PROFIT=20
CORPORATION; THE CHURCH IN FULLERTON CORPORATION, A CALIFORNIA =
NON-PROFIT=20
CORPORATION; THE CHURCH IN HUNTINGTON BEACH, A CALIFORNIA =
NON-PROFIT=20
CORPORATION; CHURCH IN IRVINE, INC., A CALIFORNIA NON-PROFIT =
CORPORATION;=20
CHURCH IN JACKSON, A MISSISSIPPI NON-PROFIT CORPORATION; THE =
CHURCH IN=20
JACKSONVILLE, INC., A FLORIDA NON-PROFIT CORPORATION; THE CHURCH =
IN KANSAS=20
CITY, INC., A MISSOURI NON-PROFIT CORPORATION; THE CHURCH IN =
LAFAYETTE, A=20
LOUISIANA NON-PROFIT CORPORATION; THE CHURCH IN LITTLE ROCK, AN =
ARKANSAS=20
NON-PROFIT CORPORATION; THE CHURCH IN LONG BEACH, A CALIFORNIA =
NON-PROFIT=20
CORPORATION; CHURCH IN LOS ANGELES, A CALIFORNIA NON-PROFIT =
CORPORATION;=20
THE CHURCH IN MEMPHIS, A TENNESSEE NON-PROFIT CORPORATION; THE =
CHURCH IN=20
MIAMI, INC., A FLORIDA NON-PROFIT CORPORATION; CHURCH IN =
MILWAUKEE, A=20
WISCONSIN NON-PROFIT CORPORATION; THE CHURCH IN MISSION VIEJO, =
INC., A=20
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN MONTEBELLO, A =
CALIFORNIA=20
NON-PROFIT CORPORATION; CHURCH IN MONTEREY PARK, A CALIFORNIA =
NON-PROFIT=20
CORPORATION; THE CHURCH IN MORENO VALLEY, A CALIFORNIA NON-PROFIT=20
CORPORATION; THE CHURCH IN NASHVILLE, A TENNESSEE NON-PROFIT =
CORPORATION;=20
THE CHURCH IN NEWINGTON, INC., A CONNECTICUT NON-PROFIT =
CORPORATION; THE=20
CHURCH IN NORTH PROVIDENCE, A RHODE ISLAND NON-PROFIT CORPORATION; =
THE=20
CHURCH IN NUTLEY, A NEW JERSEY CORPORATION; THE CHURCH IN OKLAHOMA =
CITY,=20
INC., AN OKLAHOMA NON-PROFIT CORPORATION; THE CHURCH IN ORLANDO, A =
FLORIDA=20
NON-PROFIT CORPORATION; THE CHURCH IN PALATINE, AN ILLINOIS =
NON-PROFIT=20
CORPORATION; CHURCH OF GOD WHISH IS AT PHILADELPHIA, A =
PENNSYLVANIA=20
NON-PROFIT CORPORATION; THE CHURCH IN PLEASANT HILL, A CALIFORNIA=20
NON-PROFIT CORPORATION; CHURCH IN PORTLAND, AN OREGON NON-PROFIT=20
CORPORATION; THE CHURCH IN PULLMAN, A WASHINGTON NON-PROFIT =
CORPORATION;=20
THE LOCAL CHURCH IN RALEIGH, A NORTH CAROLINA NON-PROFIT =
CORPORATION; THE=20
CHURCH IN REDDING, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH =
IN=20
RIVERSIDE, A CALIFORNIA NON-PROFIT CORPORATION; CHURCH IN =
ROSEVILLE, A=20
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN SACRAMENTO, A =
CALIFORNIA=20
NON-PROFIT CORPORATION; THE CHURCH IN SALT LAKE CITY, A UTAH =
NON-PROFIT=20
CORPORATION; CHURCH IN SAN DIEGO, A CALIFORNIA NON-PROFIT =
CORPORATION; THE=20
CHURCH IN SAN FRANCISCO, INC., A CALIFORNIA NON-PROFIT =
CORPORATION;=20
ASSEMBLY OF THE SAN GABRIELLERS, A CALIFORNIA NON-PROFIT =
CORPORATION; THE=20
CHURCH IN SAN JOSE, A CALIFORNIA NON-PROFIT CORPORATION; THE =
CHURCH IN=20
SANTA CLARA, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN =
SANTA=20
CLARITA, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN =
SEATTLE, A=20
WASHINGTON NON-PROFIT CORPORATION; CHURCH IN SHREVEPORT, A =
LOUISIANA=20
NON-PROFIT CORPORATION; THE CHURCH IN SPOKANE, A WASHINGTON =
NON-PROFIT=20
CORPORATION; THE CHURCH IN STREAMWOOD, AN ILLINOIS NON-PROFIT =
CORPORATION;=20
THE CHURCH IN TACOMA, A WASHINGTON NON-PROFIT CORPORATION; THE =
CHURCH IN=20
TAMPA, INC., A FLORIDA NON-PROFIT CORPORATION; CHURCH IN TEMPE, =
INC., AN=20
ARIZONA NON-PROFIT CORPORATION; THE CHURCH IN THOUSAND OAKS, A =
CALIFORNIA=20
NON-PROFIT CORPORATION; THE CHURCH IN TORRANCE, A CALIFORNIA =
NON-PROFIT=20
CORPORATION; THE CHURCH IN TUCSON, INC., AN ARIZONA NON-PROFIT=20
CORPORATION; CHURCH IN TULSA, AN OKLAHOMA NON-PROFIT CORPORATION; =
THE=20
CHURCH IN VICTORVILLE, A CALIFORNIA NON-PROFIT CORPORATION; THE =
CHURCH IN=20
VISTA, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN WICHITA, =
INC., A=20
KANSAS NON-PROFIT CORPORATION; CHURCH IN YORBA LINDA, A CALIFORNIA =
NON-PROFIT CORPORATION, Appellees
On =
Appeal from the=20
80th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2001-65993
O P I =
N I O=20
N
<=
/SPAN>This=20
is a libel suit brought by a church against a publisher and two =
authors=20
after the church was included in a book about =E2=80=9Creligious =
cults,=E2=80=9D as that=20
term is defined in the book. The publisher and authors moved for =
summary=20
judgment, which the trial court denied. This interlocutory appeal=20
followed. See Tex. =
Civ.=20
Prac. & Rem. Code Ann. =C2=A7 51.014(b) (Vernon Supp. =
2005). Because=20
we agree that the passages in the book that refer to the church =
are not,=20
as a matter of law, defamatory, we reverse the judgment of the =
trial court=20
and render judgment that the church take nothing from the =
publisher and=20
authors.
BACKGROUND
A. An =
Overview of=20
the Encyclopedia of Cults and New=20
Religions
<=
/SPAN>John=20
Weldon and John Ankerberg [=E2=80=9Cthe authors=E2=80=9D] wrote a =
book entitled=20
Encyclopedia of Cults and New Religions [=E2=80=9Cthe =
book=E2=80=9D], which was=20
published by Harvest House Publishers [=E2=80=9Cthe =
publisher=E2=80=9D]. The book is 700=20
pages long. It begins with a section entitled =E2=80=9CHow to Use =
this Book,=E2=80=9D=20
which is followed by a 16-page Introduction, 57 separate chapters =
that=20
describe various religious groups, including a chapter on =
appellees, The=20
Local Churches and Living Stream Ministry [ collectively, =
=E2=80=9Cthe church=E2=80=9D],=20
and concludes with a 66-page section entitled, =E2=80=9CDoctrinal=20
Appendix.=E2=80=9D
<=
/SPAN>The=20
church is not named at all in the Introduction. The chapter on the =
church=20
is 1 and 1/4 pages long. Living Stream Ministry, the publishing =
voice of=20
the church, is mentioned once in the chapter.
<=
/SPAN>The=20
Doctrinal Appendix mentions the church twice and Living Stream =
Ministry=20
once. The first mention of the church is in a chart with 15 other=20
religious groups under the title =E2=80=9CDifferent Concepts of =
God.=E2=80=9D The church=20
is next mentioned in a list of 50 other religious groups under the =
subcategory =E2=80=9CReligions, Cults, and the Deity of =
Christ.=E2=80=9D Living Stream=20
Ministry is mentioned in a footnote, as the source of a quote from =
one of=20
the church=E2=80=99s founders.
PROPRIETY OF TRIAL=20
COURT=E2=80=99S DENIAL OF SUMMARY =
JUDGMENT
<=
/SPAN>The=20
authors and publisher moved for a traditional summary judgment, =
contending=20
that (1) the language of the book is not legally capable of any =
defamatory=20
meaning, (2) the allegedly defamatory statements were not made =
with=20
=E2=80=9Cactual malice,=E2=80=9D and (3) the statements were =
protected by the free speech=20
and press provisions of the United States and Texas=20
Constitutions. ![3DFootnote](3D"")
A. =
Standard of=20
Review
<=
/SPAN>When=20
reviewing the denial of summary judgment, we apply the same well- =
known=20
standards applicable to the granting of summary judgment. See=20
Associated Press v. Cook, 17 S.W.3d 447, 451 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2000, no pet.). For their traditional summary judgment =
motion, the=20
authors and publisher had the burden to show that no genuine issue =
of=20
material fact existed and that they were entitled to judgment as a =
matter=20
of law. See Tex.R. =
Civ.=20
P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 =
(Tex.=20
1972). A defendant who conclusively negates at least one of the =
essential=20
elements of a cause of action is entitled to summary judgment on =
that=20
cause of action. Swilley, 488 S.W.2d at 67. =
Likewise, a=20
defendant who conclusively establishes each element of an =
affirmative=20
defense is entitled to summary judgment. Id. Once the =
movant has=20
established a right to a summary judgment, the burden shifts to =
the=20
nonmovant. Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. =
App.=E2=80=94 Houston=20
[1st Dist.] 1993, writ denied). The nonmovant must respond to the =
motion=20
for summary judgment and present to the trial court any issues =
that would=20
preclude summary judgment. City of Houston v. Clear Creek Basin =
Auth., 589 S.W.2d 671, 678 (Tex. 1979); Marchal, 859 =
S.W.2d at=20
412. The summary judgment should be granted if any of the theories =
advanced in the motion for summary judgment is meritorious. See =
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.=20
1996).
B. Is =
the Language=20
of the Book Defamatory as to the Church?
<=
/SPAN>In=20
their first issue on appeal, the publisher and authors contend =
that the=20
language of the book cannot, as a matter of law, be defamatory. To =
maintain a cause of action for defamation, the plaintiff must =
prove that=20
the defendant (1) published a statement (2) that was defamatory =
concerning=20
the plaintiff (3) while acting with either actual malice, if the =
plaintiff=20
was a public figure, or negligence, if the plaintiff was a private =
individual, regarding the truth of the statement. WFAA-TV, Inc. =
v.=20
McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Whether a =
publication is=20
capable of being defamatory is initially a question of law to be=20
determined by the court. Turner v. KTRK Television, Inc., =
38 S.W.3d=20
103, 114 (Tex. 2000). To make this determination, the trial court =
should=20
consider whether the words used are reasonably capable of =
defamatory=20
meaning by considering the allegedly defamatory statement as a =
whole.=20
See Musser v. Smith Protective Servs., Inc., 723 S.W.2d =
653, 654-55=20
(Tex. 1987). The determination is based on how a person of =
ordinary=20
intelligence would perceive the entire statement. See also =
Bentley v.=20
Bunton, 94 S.W.3d 561, 579 (Tex. 2002). This question is =
submitted to=20
a jury only if the contested language is ambiguous or of doubtful =
import.=20
See Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.=20
1970).
<=
/SPAN>1. Is the Introduction=20
Defamatory?
<=
/SPAN>The=20
church claims that it has been defamed by certain references made =
in the=20
book=E2=80=99s Introduction. Specifically, paragraphs 15-17 of the =
church=E2=80=99s=20
petition allege:
15. Within one year of the date of this =
Complaint,=20
defendant published the Encyclopedia. The =
Encyclopedia=20
consists primarily of descriptions of various religious =
organizations=20
identified by the authors as cults. Preceding these descriptions =
is a=20
lengthy, introductory section which informs the readers that, all =
of =E2=80=9Cthe=20
groups contained herein deserve the title=E2=80=9D =
=E2=80=9Ccult.=E2=80=9D Under a subheading=20
entitled =E2=80=9CCharacteristics of Cults,=E2=80=9D the =
introduction offers the reader a=20
numbered list of negative attributes that the authors attribute to =
the=20
=E2=80=9Ccults=E2=80=9D described in the text. The introduction =
also includes many other=20
statements attributing misdeeds and other approbations to the =
groups=20
listed in the Encyclopedia.
16. Among other things, the =
Encyclopedia=E2=80=99s=20
introduction specifically attributes to =E2=80=9Ccults=E2=80=9D =
and therefore to=20
Plaintiffs=E2=80=99 the following:
A. Subjecting members to =
=E2=80=9Cphysical =E2=80=9Charm=E2=80=9D (Page=20
XXIV).
B. =E2=80=9C[F]raud or deception =
concerning=E2=80=9D =E2=80=9Cfundraising=E2=80=9D=20
and =E2=80=9Cfinancial costs.=E2=80=9D (Page =
XXIV).
C. =E2=80=9C[A]cceptance of =
shamanism.=E2=80=9D (Page=20
XXIV).
D. =E2=80=9C[E]ngaged in drug smuggling =
and other criminal=20
activity, including murder.=E2=80=9D (Page XXV).
E. =E2=80=9C[D]enied their followers =
blood transfusions=20
and medical access.=E2=80=9D (Page XXV).
F. =E2=80=9C[E]ncouraged =
prostitution.=E2=80=9D (Page=20
XXV).
F. =E2=80=9C[S]ometimes raped =
women.=E2=80=9D (Page=20
XXV).
G. =E2=80=9C[M]olested =
children.=E2=80=9D (Page=20
XXV).
H. =E2=80=9C[B]eaten their =
disciples.=E2=80=9D (Page=20
XXV).
I. =E2=80=9C[P]ractices black magic and =
witchcraft.=E2=80=9D (Page=20
XXV].
17. The Encyclopedia=E2=80=99s =
introduction=20
expressly and implicitly imputes these =E2=80=9CCharacteristics of =
Cults=E2=80=9D to the=20
religious organizations described in the text. The language, =
layout, tone=20
and tenor of the introduction is designed to, and does, cause a =
reasonable=20
reader to conclude that the organizations described in the=20
Encyclopedia were selected for inclusion therein precisely =
because=20
they possess the =E2=80=9CCharacteristics of Cults=E2=80=9D and =
commit the misdeeds=20
listed. Furthermore, the authors expressly characterize their =
descriptions=20
of Plaintiffs as factual: =E2=80=9CFacts are facts.=E2=80=9D (Page =
XIX).
<=
/SPAN>In=20
their motion for summary judgment, the publisher and authors argue =
that=20
the Introduction section of the book cannot be defamatory, as a =
matter of=20
law, because (1) =E2=80=9Cthe foundational context of the =
Encyclopedia centers on=20
doctrinal and apologetic issues of theology,=E2=80=9D and (2) the =
introduction=20
cannot be reasonably interpreted to defame every group in the =
book. To=20
determine these issues, we consider first whether the label =
=E2=80=9Ccult=E2=80=9D is=20
actionable. Then, we turn to the issue of whether the negative =
attributes=20
and practices attributable to =E2=80=9Ccults=E2=80=9D are =
actionable.
&=
nbsp; a. Is being labeled a =
=E2=80=9Ccult=E2=80=9D=20
actionable?
<=
/SPAN>The=20
Introduction of the Encyclopedia defines a =E2=80=9Ccult=E2=80=9D =
as =E2=80=9Ca separate religious=20
group generally claiming compatibility with Christianity but whose =
doctrines contradict those of historic Christianity and whose =
practices=20
and ethical standards violate those of biblical =
Christianity.=E2=80=9D In their=20
motion, the publisher and authors claim that the Introduction =
=E2=80=9Ccenters on=20
doctrinal and apologetic issues.=E2=80=9D We =
agree.
Under the Establishment Clause of the =
First=20
Amendment, civil courts are prohibited from deciding theological =
matters,=20
or interpreting religious doctrine, or making matters of religious =
belief=20
the subject of tort liability. See Serbian Eastern Orthodox =
Diocese v.=20
Milivojevich, 426 U.S. 696, 707, 96 S. Ct. 2372, 2379=20
(1976).
<=
/SPAN>The=20
issue of whether a group=E2=80=99s doctrines are compatible with =
Christianity=20
depends upon the religious convictions of the speaker. =
=E2=80=9CWhether [a]=20
statement of religious doctrine or belief is made honestly or in =
bad faith=20
is of no moment, because falsity cannot be proved.=E2=80=9D =
Tilton v.=20
Marshall, 925 S.W.2d 672, 679 (Tex. 1996). =E2=80=9CAs such, =
no jury can be=20
allowed to determine [the truth or falsity of one=E2=80=99s =
religious beliefs] for=20
=E2=80=98[w]hen triers of fact undertake that task, they enter a =
forbidden=20
domain.=E2=80=99=E2=80=9D Id. at 680 (quoting United =
States v. Ballard, 322=20
U.S. 78, 86, 64 S. Ct. 882, 886 (1944)).
<=
/SPAN>In=20
Tran v. Fiorenza, 934 S.W.2d 740, 742 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1996, writ denied), the plaintiff, a Catholic priest, sued =
Bishop=20
Fiorenza for defamation because the bishop wrote a letter in which =
he=20
stated that the plaintiff had been excommunicated by the Catholic =
church.=20
This Court held that it could not hear the plaintiff=E2=80=99s =
defamation claim=20
because, to decide whether a tort had, in fact, occurred, we would =
have to=20
decide whether the plaintiff had been excommunicated, a matter of=20
ecclesiastical concern. Id.=20
at 744. The First and Fourteenth Amendments of the United =
States=20
Constitution prohibit civil courts from deciding such =
ecclesiastical=20
matters. Id. at 743.
<=
/SPAN>Therefore,=20
we conclude that being labeled a =E2=80=9Ccult=E2=80=9D is not =
actionable because the=20
truth or falsity of the statement depends upon one=E2=80=99s =
religious beliefs, an=20
ecclesiastical matter which cannot and should not be tried in a =
court of=20
law. See Sands v. Living Word Fellowship, 34 P.3d 955, 960 =
(Alas.=20
2001) (holding that reference to church as =E2=80=9Ccult=E2=80=9D =
and church member as=20
=E2=80=9Ccult recruiter=E2=80=9D not actionable as defamation =
because statements convey=20
religious belief and opinion and are not capable of being proven =
true or=20
false).
<=
/SPAN>b. Is the description of the negative=20
characteristics of a cult actionable?
<=
/SPAN>The=20
Introduction of the book contains a list of 12 =
=E2=80=9Ccharacteristics of cults.=E2=80=9D=20
The 12 characteristics of cults include the =
following.
1. Despite the claim to be a friend of=20
Christianity, the new religious are rejecting or hostile to=20
Christianity.
2. Despite the claim to allow for =
individual=20
expression and to respect members as individuals, we discover a=20
destructive authoritarianism and sanction-oriented mentality: =
members must=20
obey explicitly or be punished or =
ex-communicated.
3. Despite a claim to interpret the =
Bible=20
properly, the Bible is systematically misinterpreted, either =
through=20
additional revelation that distorts proper biblical interpretation =
or=20
through alien (mystical, symbolic, subjective) methods of=20
interpretation.
4. Despite a claim to care for members, =
members=20
are often subject to psychological, physical and spiritual harm =
through=20
cult dynamics that reject biblical, ethical and pastoral=20
standards.
5. Despite a claim to allow independent =
thinking,=20
there is a restriction of independent thought, a rejection of =
reason and=20
logic, and often unquestioning obedience to the leader or=20
organization.
6. Despite public claim for openness and =
tolerance=20
to other religions, exclusivism and intolerance are taught=20
privately.
7. Despite the claim for independent =
verification=20
and objective evidence in support of a group=E2=80=99s beliefs and =
practices, the=20
evidence is almost exclusively based in undocumented claim or the=20
subjective realm=E2=80=94mystical experience or powerful occult=20
experience.
8. Despite the claim to offer true =
spirituality=20
and a genuine experience of God or ultimate reality, and despite =
the claim=20
not to be occult, what is offered is often occult practices and=20
beliefs.
9. Despite the claim for accurately =
representing=20
one=E2=80=99s history and to give a true portrait of a =
group=E2=80=99s leader(s), there is=20
a distortion=E2=80=94reinvention and cover-up=E2=80=94of a =
group=E2=80=99s history and leader for=20
purely advantageous interests.
10. Despite the claim to trust others, =
cults may=20
be paranoid or persecution conscious, and they may be oppositional =
or=20
alienated from the culture, having beliefs, values and practices =
opposed=20
to those in the dominant culture.
11. Despite the claim for honesty there =
is use of=20
intimidation or deception on both members and outsiders. There is =
often=20
fraud or deception concerning a group=E2=80=99s true teachings, =
the life of the=20
founder, the group=E2=80=99s history, fund-raising, front groups =
and financial=20
cost.
<=
/SPAN>The=20
section of the book on the =E2=80=9Ccharacteristics of =
cults=E2=80=9D concludes with the=20
following paragraph, upon which most of the church=E2=80=99s libel =
claims are=20
based:
When people are manipulated in different =
ways for=20
ulterior motives, as cults are shown to do in this Encyclopedia, =
is not=20
this to be condemned? Those cult leaders or gurus who have =
encouraged=20
their followers to oppose moral convention, denied their followers =
blood=20
transfusions and medical access, encouraged prostitution for =
making=20
converts, sometimes raped women, beaten their disciples, molested=20
children, practices black magic and witchcraft, engaged in drug =
smuggling=20
and other criminal activity, including murder=E2=80=94do they not =
deserve the=20
condemnation of us all? And such things have occasionally happened =
even in=20
what many people regard as the =E2=80=9Crespectable=E2=80=9D =
cults.
<=
/SPAN>The=20
church contends that some of the conduct mentioned in connection =
with the=20
characteristics of cults=E2=80=94prostitution, rape, beating, =
molesting children,=20
drug smuggling, and murder=E2=80=94are facts that can be proven =
false, and,=20
therefore, are actionable under Milkovich v. Lorain Journal =
Co.,=20
497 U.S. 1, 20, 110 S. Ct. 2695, 2706=E2=80=9307 (1990) (holding =
that statements=20
of =E2=80=9Copinion=E2=80=9D may be actionable if containing facts =
provable as=20
false).
<=
/SPAN>The=20
publisher and authors, however, argue that the characteristics of=20
cults=E2=80=94including the criminal acts that the church contends =
are provable as=20
false under Milkovich=E2=80=94=E2=80=9Ccannot reasonably be =
interpreted to defame=20
every group in the book.=E2=80=9D In other words, the publisher =
and authors argue=20
that the second element of a defamation claim=E2=80=94that a =
defamatory statement=20
was made concerning the plaintiff=E2=80=94cannot be met. We =
agree.
<=
/SPAN>If=20
a statement does not concern appellants, it cannot defame them, =
nor can it=20
injure their reputations. See Newspapers Inc. v. Matthews, =
339=20
S.W.2d 890, 893 (Tex. 1960). For a plaintiff to recover for the=20
publication of an allegedly libelous statement, the asserted libel =
must=20
refer to some ascertained or ascertainable person and that person =
must be=20
the plaintiff. Id. The publication need not make direct =
reference=20
to the plaintiff individually; reference may be indirect, and it =
is not=20
necessary that every listener understand it, so long as there are =
some who=20
reasonably do so. Davis v. Davis, 734 S.W.2d 707, 711 (Tex. =
App.=E2=80=94Houston [1st Dist.] 1987, no writ).
<=
/SPAN>Under=20
the group libel doctrine, a plaintiff has no cause of action for a =
defamatory statement directed to some or less than all of the =
group when=20
there is nothing to single out the plaintiff. Eskew v. =
Plantation=20
Foods, Inc., 905 S.W.2d 461, 462 (Tex. App.=E2=80=94Waco 1995, =
no writ);=20
Wright v. Rosenbaum, 344 S.W.2d 228, 231-33 (Tex. Civ. =
App.=E2=80=94Houston=20
1961, no writ) (holding that statement that =E2=80=9Cone of the =
four ladies=E2=80=9D stole=20
dress, but not naming guilty person, was not slanderous of any =
particular=20
person); Bull v. Collins, 54 S.W.2d 870, 871-72 (Tex. Civ.=20
App.=E2=80=94Eastland 1932, no writ) (holding that statement that =
either A or B=20
stole the money, without specifying guilty party, not slanderous); =
Harris v. Santa Fe Townsite Co., 125 S.W. 77, 80 (Tex. Civ. =
App.=E2=80=941910, writ ref=E2=80=99d) (holding that statement =
that an unnamed =E2=80=9Cband of=20
nine women=E2=80=9D from South Silsbee cut a fence was not =
libelous because 15=20
women lived in South Silsbee).
<=
/SPAN>In=20
Eskew, the chief executive officer of the defendant company =
stated=20
in the newspaper that =E2=80=9C[I]rregularities in the =
company=E2=80=99s maintenance=20
department prompted personnel changes. . . . Everyday we hire =
people, let=20
people go and people quit . . . . I don=E2=80=99t want to take the =
chance of=20
coloring the innocent with any kind of accusation. I don=E2=80=99t =
think everyone=20
we let go had something to do with this. But some of those we let =
go, we=20
think, were involved.=E2=80=9D 905 S.W.2d at 462. The plaintiff, =
one of the=20
employees the defendant company had fired, sued for libel, =
contending that=20
the chief executive officer=E2=80=99s statement identified =
plaintiff as a=20
wrongdoer even though he was not named in the story. Id. =
The court=20
of appeals stated that =E2=80=9C[the chief executive =
officer=E2=80=99s] statement did not=20
malign the entire group and is clearly referable only to an =
unidentified=20
portion of a group.=E2=80=9D Id. at 463. As such, summary =
judgment was=20
proper for the defendant company. Id. at 464.=20
&nbs=
p;Thus,=20
in order for an alleged defamatory statement that is directed to =
an=20
unidentified group of individuals to be actionable, it must create =
the=20
inference that all members of the group have participated =
in the=20
activity that forms the basis of the libel suit. If the statement =
refers=20
to some, but not all members of the group, and does not identify =
to which=20
members it refers, it is not a statement of and concerning the=20
plaintiff.
<=
/SPAN>The=20
church argues that, under Gibler v. Houston Post Co., 310 =
S.W.2d=20
377, 385 (Tex. App.=E2=80=94Houston [1st Dist.] 1958, writ =
ref=E2=80=99d n.r.e.), the=20
statements regarding the alleged criminal acts are actionable, =
even if the=20
church is not directly mentioned in connection with the criminal =
acts.=20
Under Gibler, a libel plaintiff may maintain a cause of =
action,=20
even if not named in the publication, if the language of the =
publication=20
and the surrounding circumstances are such that friends and =
acquaintances=20
of the plaintiff recognize that the publication is about the =
plaintiff.=20
Id. In its petition, the church alleges that the book has =
defamed=20
every group named therein. Specifically, the church alleges that =
the=20
Introduction of the book =E2=80=9Cis designed to, and does, cause =
a reasonable=20
reader to conclude that the organizations described in the=20
Encyclopedia were selected for inclusion therein precisely =
because=20
they possess the =E2=80=98Characteristics of Cults=E2=80=99 and =
commit the misdeeds=20
listed.=E2=80=9D
<=
/SPAN>To=20
the contrary, the Introduction of the book specifically states =
that =E2=80=9C[t]he=20
list [of the characteristics of a cult] is not exhaustive. Not all =
groups=20
have all the characteristics and not all groups have every =
characteristic=20
in equal measure. . . . =E2=80=9D The appropriate =
inquiry in=20
determining what a reasonable reader would believe, for the =
purposes of=20
libel, is objective, not subjective. See New Times v. =
Isaacks, 146=20
S.W.3d 144, 162 (Tex. 2004). The question is not whether some =
actual=20
readers were misled by the publication, as they inevitably will =
be, but=20
whether the hypothetical reasonable reader could be. Id.=20
Moreover, the prefatory language =E2=80=9C[t]hose cult =
leaders or gurus=E2=80=9D is=20
restrictive=E2=80=94focused only upon those leaders who commit =
such acts, not on=20
all leaders or gurus. In sum, considering the Introduction as a =
whole, we=20
cannot conclude that a reasonable reader could believe that all =
groups=20
named in the book participate in the criminal activities that =
plaintiffs=20
claim as the basis of their libel action. No reasonable reader =
could=20
conclude that the book accuses the church, and, in fact, every =
other=20
church named in the book, of rape, murder, child molestation, drug =
smuggling, etc. As such, the allegedly libelous statements in the=20
Introduction are not =E2=80=9Cof and concerning the =
church=E2=80=9D and are not=20
actionable.
<=
/SPAN>2. Is the Doctrinal Appendix=20
Defamatory?
<=
/SPAN>The=20
church also contends in its petition that it has been defamed by =
certain=20
portions of language in the Doctrinal Appendix. Specifically, =
paragraph 18=20
of the petition alleges the following:
18. The Encyclopedia also includes a =
section=20
entitled =E2=80=9CDoctrinal Appendix.=E2=80=9D This Section =
attacks the groups included in=20
the Encyclopedia, including Plaintiffs with further defamatory =
statements=20
including the following:
&=
nbsp; A.=20
The groups included in the book =E2=80=9Caccept occult =
powers.=E2=80=9D (Page=20
708);
B. The groups included in the book are =
=E2=80=9Cassociated=20
with idolatry=E2=80=9D and =E2=80=9Cuniversally promote =
idolatry=E2=80=9D with its inevitable=20
outcome =E2=80=9Chuman sacrifice.=E2=80=9D (Pages 710, =
721);
C. The groups included in the book =
engage in=20
=E2=80=9Cmurder,=E2=80=9D =E2=80=9Cchild sacrifice,=E2=80=9D =
=E2=80=9Cprostitution,=E2=80=9D and =E2=80=9Csnake worship=E2=80=9D =
(Pages=20
714, 722).
<=
/SPAN>In=20
their motion for summary judgment, the publisher and authors argue =
that=20
the Doctrinal Appendix section of the book cannot be defamatory, =
as a=20
matter of law, for the same reasons that the Introduction is not=20
defamatory, i.e., because (1) =E2=80=9Cthe foundational context of =
the=20
Encyclopedia centers on doctrinal and apologetic issues of =
theology=E2=80=9D and=20
(2) the Doctrinal Appendix cannot be reasonably interpreted to =
defame=20
every group in the book. To determine these issues, we consider =
first=20
whether being accused of =E2=80=9Caccepting occult powers=E2=80=9D =
and =E2=80=9Cpromoting=20
idolotry=E2=80=9D is actionable. Then, we turn to the issue of =
whether the=20
negative attributes and practices attributable to =
=E2=80=9Ccults=E2=80=9D are=20
actionable.
&=
nbsp; a. Is=20
being accused of =E2=80=9Caccepting occult powers=E2=80=9D and =
=E2=80=9Cpromoting idolatry=E2=80=9D=20
actionable?
<=
/SPAN>The=20
Doctrinal Appendix defines =E2=80=9Cidolatry=E2=80=9D as the =
=E2=80=9Cworship of false gods and=20
spirits=E2=80=9D and occult [demonic] powers and practices are =
associated, in the=20
text, with idolatry. The section of the Doctrinal Appendix on the =
occult=20
and idolatry is entitled =E2=80=9CThe Occult: The Modern Spiritual =
Counterfeit.=E2=80=9D
<=
/SPAN>As=20
with the definition of the term =E2=80=9Ccult,=E2=80=9D which we =
discussed earlier,=20
whether someone worships a false god or accepts occult powers and=20
practices depends upon the speaker=E2=80=99s religious beliefs. =
=E2=80=9CTo avoid=20
conducting =E2=80=98heresy trials,=E2=80=99 courts may not =
adjudicate the truth or falsity=20
of religious doctrines or beliefs.=E2=80=9D Tilton, 925 =
S.W.2d at 678-79.=20
=E2=80=9CHeresy trials are foreign to our Constitution. Men may =
believe what they=20
cannot prove. They may not be put to the proof of their religious=20
doctrines or beliefs.=E2=80=9D Unites States v. Ballard, =
322 U.S. 78,=20
86-87, 64 S. Ct. 882, 886-87 (1944).
<=
/SPAN>Because=20
the statement concerns the speaker=E2=80=99s religious beliefs, =
which cannot be=20
proved true or false, an allegation that one is an idolator and =
accepts=20
occult powers is not actionable.
<=
/SPAN>b. Are=20
the statements regarding human sacrifice, murder, child sacrifice, =
prostitution, and snake worship =
actionable?
<=
/SPAN>The=20
publisher and authors argue that the occult practices that are =
mentioned=20
in the Doctrinal Appendix, =E2=80=9Ccannot reasonably be =
interpreted to defame=20
every group in the book.=E2=80=9D In other words, the publisher =
and authors argue=20
again that the second element of a defamation claim=E2=80=94that a =
defamatory=20
statement was made concerning the plaintiff=E2=80=94cannot =
be met. Again,=20
we agree.
<=
/SPAN>None=20
of the passages alleged to be defamatory in the Doctrinal Appendix =
mention=20
the church at all. The occult practice of human sacrifice, which =
gives=20
rise to one of the church=E2=80=99s libel allegations, is =
mentioned in the=20
following passage:
As [the Bible verses referenced earlier] =
suggest,=20
in ancient Israel occult practices were associated with idolatry =
(worship=20
of false god and spirits) and inevitably led to human sacrifice, =
as is=20
increasingly occurring in the Western world today. =
<=
/SPAN>This=20
passage does not accuse the church, or indeed any of the =
organizations=20
named in the book, of human sacrifice. Instead, it points out =
that, in=20
ancient Israel, idolatry led to human sacrifice, in the =
authors=E2=80=99=20
opinion. As such, the statement regarding human sacrifice is not =
of and=20
concerning the church.
<=
/SPAN>The=20
occult practices of child sacrifice and murder, which give rise to =
another=20
of the church=E2=80=99s libel allegations, are mentioned in a =
section of the=20
Doctrinal Appendix that lists what the authors refer to as =
=E2=80=9Cthe capacities=20
or methods of fallen angels [demons].=E2=80=9D Again, the passage =
does not refer=20
to the church at all, or any other organization in the book. There =
is=20
nothing in this list of =E2=80=9Cdemonic powers=E2=80=9D to lead a =
reasonable reader to=20
conclude that the church possesses or uses these powers to commit =
child=20
sacrifice or murder. As such, the passage in the Doctrinal =
Appendix that=20
refers to child sacrifice and murder is not of and concerning the=20
church.
<=
/SPAN>The=20
occult practices of child sacrifice, prostitution, and snake =
worship are=20
mentioned in the following passage from the Doctrinal=20
Appendix.
Idolatry=20
(Gr. eidololatria). Idolatry in ancient times included two =
forms of=20
departure from the true religion: the worship of false gods =
(whether by=20
means of images or otherwise); and the worship of the Lord by =
means of=20
images. All the nations surrounding ancient Israel were =
idolatrous. . . .=20
The gods had no moral character whatsoever, and worship of them =
carried=20
with it demoralizing practices, including child sacrifice, =
prostitution=20
and snake worship. . . .
<=
/SPAN>Again,=20
this clearly does not refer to the church or any of the =
organizations=20
named in the book. It is a historical reference to ancient Israel =
and what=20
the authors perceive as the result of idolatry in that day and =
age. As=20
such, it is not a statement of and concerning the church and is =
not=20
actionble.
<=
/SPAN>In=20
sum, considering the Doctrinal Appendix as a whole, we cannot =
conclude=20
that a reasonable reader would believe that all groups named in =
the book=20
participate in the =E2=80=9Coccult practices=E2=80=9D that =
plaintiffs claim as the basis=20
of their libel action. Because the allegedly libelous statements =
in the=20
Doctrinal Appendix are not of and concerning the church, they are =
not=20
actionable.
<=
/SPAN>3. Is the Chapter regarding =
=E2=80=9CThe Local Church=E2=80=9D=20
Defamatory?
<=
/SPAN>The=20
church does not allege that the chapter on it contains defamatory=20
language. Instead, it argues that the fact that there is a chapter =
on it=20
would lead a reasonable person to conclude that it =
=E2=80=9Croutinely engage[d] in=20
the activities set forth in paragraph 16 and 18 above.=E2=80=9D =
Specifically, the=20
petition alleges the following:
19. The Encyclopedia contains a =
section=20
entitled =E2=80=9CThe Local Church.=E2=80=9D This section also =
expressly identifies Living=20
Stream Ministry. When read in conjunction with the =
Encyclopedia=E2=80=99s=20
introduction and appendix, this section conveys false and =
defamatory=20
message [sic] that the Local Church, the Churches, and Living =
Stream=20
Ministry routinely engage in the activities set forth in paragraph =
16=20
& 18 above. The section of the Encyclopedia entitled =
=E2=80=9CThe Local=20
Church=E2=80=9D is reasonably read in conjunction with and in the =
context of the=20
Encyclopedia=E2=80=99s introduction and appendix, including =
the=20
Characteristics of Cults=E2=80=9D subsection. The contents of =
these sections,=20
including the defamatory statements described herein, were =
understood by=20
readers to refer to and concern the Plaintiffs =
herein.
20. The above-described statements are =
defamatory=20
per se in that they falsely impute immoral, illegal and despicable =
actions=20
to Plaintiffs. In truth and in fact no Plaintiff has ever engaged =
in such=20
actions. The false and defamatory statements set forth herein =
expose=20
Plaintiffs to hatred, contempt, ridicule, and financial=20
injury.
<=
/SPAN>The=20
gist of the church=E2=80=99s complaint is that, by calling it a =
=E2=80=9Ccult=E2=80=9D and=20
including a chapter on it in the book, the publisher and authors =
have=20
accused it of every =E2=80=9Cimmoral, illegal and despicable =
action=E2=80=9D mentioned in=20
the book. However, as we stated earlier, under the group libel =
doctrine, a=20
plaintiff has no cause of action for a defamatory statement =
directed to=20
some or less than all of the group when there is nothing to single =
out the=20
plaintiff. Eskew, 905 S.W.2d at 462. We have already held =
that=20
nothing in the book singles out the church as having committed the =
=E2=80=9Cimmoral, illegal, and despicable=E2=80=9D actions alleged =
in its petition. Simply=20
being included in a group with others who may have committed such=20
=E2=80=9Cimmoral, illegal, and despicable=E2=80=9D actions does =
not give rise to a libel=20
claim.
CONCLUSION
<=
/SPAN>Because=20
the allegedly libel statements are not defamatory, as a matter of =
law, we=20
sustain the publisher and authors=E2=80=99 first issue on appeal. =
Accordingly, we=20
need not address the remaining issues and decline to do=20
so.
<=
/SPAN>We=20
reverse the judgment of the trial court and render judgment that =
the=20
church take nothing from the publisher and=20
=
authors. =
; =
&=
nbsp; &n=
bsp;
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Sherry=20
Radack
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Chief=20
Justice
Panel consists of Chief Justice Radack =
and=20
Justices Alcala and=20
Bland.
|