Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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."
The middle charge, however, is a factual claim. This apparently stems from a speech that Ammerman gave in which he said that Mikey started his crusade about religion in the military after one of his sons was converted to Christianity at the Air Force Academy. I have not seen the text of that speech, so I can't comment on the accuracy of the charge. But this is at least a potentially actionable accusation.
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.
Politics
Comments
I'm with you on this. I root for Mikey and MRFF, but I wonder if his passion for exposing these two frauds is pushing him on this, to his detriment.
Hope he reads your post and reconsiders.
Posted by: trog69 | October 7, 2009 9:34 AM
Trog: I think that's the point -- hound the heathen libruls until they snap and do something irrational, then cry about how nasty and irrational they are. It's a standard tactic of bullies of all sorts, and it seems to be the Christians' favorite substitute for actually, you know, emulating Christ's example and leading by it.
Posted by: Raging Bee | October 7, 2009 9:59 AM
Did Mikey even consider a biblical model of dispute resolution such as is outlined in Mt 18?
Posted by: kehrsam | October 7, 2009 10:07 AM
I'm sure he might consider it, Kehrsam, if they were printed on some 14oz. gloves.
Posted by: trog69 | October 7, 2009 10:15 AM
"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."
Which points out a major weakness in the American legal system. Britain (and the EU more generally, I think) has laws against inciting racial or religious hatred that K.'s rhetoric would certainly fall afoul of. K. - and on a broader note, Beck, Coulter, protesters waving nooses and assault rifles, the whole loathsome panoply of the modern American right, which feels free to call its enemies monsters, child-killing butchers damned by God, and which acts accordingly - has been allowed to grow to its current pathological levels largely because of our current fetish for the broadest possible interpretation of the First Amendment, to the detriment of our free society in general.
Posted by: mad the swine | October 7, 2009 10:26 AM
mad the swine,
I consider it far less to the detriment of our free society to have people being assholes then to have them in prison.
Posted by: Gretchen | October 7, 2009 11:05 AM
It is indeed hard to tell when MtS is doing a put-on... I'm guessing he is here, but that was actually somewhat reasonable. Even though I disagree, because I put an extremely high value on free speech, I often wish there were some sort of legal recourse to prevent folks like Beck from telling outright lies (not just dubious opinions, but demonstrably factually false information) on national TV on a regular basis. I just don't see any way to do it that wouldn't give the gov't a powerful arm for oppression... but damn, I really wish there was a way. :/
Posted by: James Sweet | October 7, 2009 11:23 AM
I wholly agree with Ed on this one. I think Weinstein is doing great work, but this case is a dog if I ever saw one. There's no chance of winning, and he harms his own reputation, which undermines his credibility for the real, actionable, issues that he pursues.
Now if he could just identify the redneck jackasses who are painting swastikas on his house...
Posted by: James Hanley | October 7, 2009 11:24 AM
But Ed, didn't you hear about the new domain name that Ammerman just registed?
http://mikeyweinsteinssonconvertedtochristianityin1990.com
Posted by: James Sweet | October 7, 2009 11:25 AM
Keep being "intellectually consistent," Ed. That's what I love about people on "our side." We can disagree about tactics and still remain allies. I think it has something to do with thinking for ourselves and not being blind followers of an agenda. I've been in the same position of disagreeing with lawsuits filed by other organizations, and thinking that filing them was not the best move, so I totally understand.
I can't really comment here about Mikey's case, because I would have to clear any comments through him. As Ed noted, this is a suit brought by Mikey personally and not by MRFF, so it's different than an action by MRFF where I can speak for the foundation.
But, I can fill in what was in the speech by Jim Ammerman that Ed said he hasn't seen the full text of. That might clear up any questions about whether or not Ammerman has been intentionally defaming Mikey. What Ammerman is talking about in this part of the speech, given in August 2008, is a meeting he had with a U.S. senator during which the senator (who's on the Armed Services Committee) asked him how the chaplains praying in Jesus' name controversy got started.
"He said, 'this big question about the name of Jesus, where did it start?' And I said, 'In the Air Force -- the Air Force Academy, in fact, by a Jew who had two boys there. He was a graduate from there and became a lawyer -- a real estate lawyer -- and he's a multi-millionaire and he's getting other Jews to give him money to stamp out the name of Jesus throughout this nation. But, one of his two Jewish sons got saved up there and he's been a madman ever since. He should come -- and I pray God will enlighten him and say your son's not on the road to hell any longer, and if I get a chance to meet him, I will say, 'Do you know how happy you ought to be. One of your sons is on the road to heaven.' Now, he might slug me because he'd turned into a madman at that point, but I'll take a lick for Jesus. In fact, if he broke my neck and I died, I'd be in the instant presence of Christ, and I'm sure Jesus would have a little smile on his lips when I reported in."
Hopefully, that quote will clarify why Mikey is accusing Ammerman of defamation.
Posted by: Chris Rodda | October 7, 2009 11:36 AM
Thanks Chris. That quote is just plain creepy in several ways.
Posted by: Ed Brayton | October 7, 2009 12:28 PM
Chris: Yikes! The lawsuit is still a dog, but I certainly get the motivation. Thanks.
Posted by: kehrsam | October 7, 2009 12:41 PM
I can agree on most of this Ed, but this:
Makes me think you haven't grasped the point of the case against Klingenschmitt. What is being alleged, going by what you've quoted, is that Klingenschmitt wasn't making some vague threat about God's supernatural vengeance, he was actually inciting people to commit acts against Weinstein (presumably on behalf of God), just doing so using religious language.
The former, I agree that the courts do not consider that a real threat (nor should they). The latter, though, they do, or most certainly should.
Posted by: Zmidponk | October 7, 2009 1:18 PM
I had the same concerns about imminent, lawless action RE Brandenberg, but this a civil suit, not a gov case against political speech so the First Amendment is not an issue here.
I think your well-considered column is off in characterizing this as a "frivolous lawsuit." There will not be any summary judgment, much less a finding of frivolity.
The First Amendment concerns RE a proposed injunction against the Church I think are not significant here.
I once told a con law prof that I was an “absolutist” on the First Amendment’s free speech clause. He said, “No you’re not.”
And he went on to name a range of speech that I would agree ought not be protected:
- Threatening a woman
- Making a bomb threat
- Planning a crime, and so on
The point being that seeking to halt inciting others to violence in a civil case does not necessarily have First Amendment implications.
The case is arguable, not frivolous.
---
Like your blog!
Posted by: MAL | October 7, 2009 1:28 PM
I'd be happy to give Gordon K. a 'lick', but only because it's on behalf of Jesus.
Posted by: Michael | October 7, 2009 1:59 PM
What needs to be understood is that we're not talking about a "church" here. We're talking about an official Department of Defense authorized ecclesiastical endorsing agency. That's what Ammerman's Chaplaincy of Full Gospel Churches is, and, according to the organization, it currently has over 270 chaplains and chaplain candidates placed in the military.
Ammerman is actually the guy who, as a speaker for the Prophecy Club in the late 1990s, started many of the government conspiracy theories now being revived by the tea-baggers and people like Glen Beck and Michelle Bachmann. In fact, the speech I quoted above for the example of what Ammerman has been saying about Mikey was mostly about things like the U.N. taking over the United States, Americans being put under martial law, yada-yada-yada.
I think we're in for a lot of discussion about free speech in the coming months. Whether it's the potential danger of statements from nationally known figures like Beck and Bachmann, or an individual's concerns over someone like Klingenschmitt, this is a sticky and difficult issue. Nobody wants to infringe on the right to free speech, but, at the same time, the old "yelling fire in a crowded theater" benchmark no longer seems to be adequate.
Posted by: Chris Rodda | October 7, 2009 2:08 PM
Ammerman's remarks, as Rodda quotes them, sem pretty defamatory to me, if not slanderous, especially when spoken to a public official WRT a policy matter. They have the clearly intended effect of smearing Weinstein as mentally disturbed, strongly implying he may pose a threat of violence, hinting a threat of violence in response to same, and unfairly prejudicing a public official against one side in a policy debate.
If a corporation can get away with SLAPPs even more transparentoly ridiculous than this, and if those $cientology $cumbags can silence a whole nation's media through bluster and lawsuits, then Weinstein has a credible case. Of course, a lot will depend on his good sense and the skills of his lawyer...
Posted by: Raging Bee | October 7, 2009 2:23 PM
Zmidponk wrote:
I know that's what is being alleged. The problem is that there just isn't any evidence for it, just an assertion of it. As much as I despise Klingenschmitt, it is highly unlikely that this accusation stands up in court. I doubt it even survives a motion to dismiss.
Posted by: Ed Brayton | October 7, 2009 2:33 PM
Unfortunately, it was an imprecatory prayer the set into motion the assassination of Israeli PM Yitzahk Rabin after the Oslo Accords. Do not underestimate the power of the belief of "being the Instrument of God"
Posted by: MC Lepus | October 7, 2009 2:37 PM
MAL wrote:
No, that's wrong. Libel suits are still subject to the First Amendment. The courts have very consistently ruled that the First Amendment dramatically limits the scope of the libel laws and requires that the exception for libel be drawn very, very narrowly. See NYT v Sullivan and Falwell v Flynt in this regard.
I doubt it would be considered legally frivolous. But I predict that the allegations against Klingenschmitt will not survive a motion to dismiss or motion for summary judgment. The allegations against Ammerman might make it to trial, but I still doubt that they will win.
Posted by: Ed Brayton | October 7, 2009 2:38 PM
Yeah. What we need to look at are quotes from Klingenschmitt's speeches (imprecatory prayers), to see if they cross any lines.
OTOH, would a federal judge accepting such imprecation as a real threat constitute and implicit violation of the establishment cause? Would accepting a joo-joo doll with pins?
Posted by: eddie | October 7, 2009 3:38 PM
Ed #18:
Ah, I must have misunderstood you. I thought you were saying this:
Because you thought the case there was the same thing as the case against Klingenschmitt. Instead, you simply think the evidence supporting the allegations is lacking. I'm not really familiar with the evidence, so I'll have to take your word for it on that score.
Posted by: Zmidponk | October 7, 2009 6:26 PM
Yeah, but is his son (who the statement was really about)?
Posted by: Narc | October 8, 2009 12:05 AM
Ed, I agree with your legal interpretation (I'm not an expert on US law, but I'm an interested amateur and have picked up a fair amount of knowledge). As you know, I'm also a strong advocate of free speech in general, and I absolutely agree that, in a free society, people should be generally able to express their views freely. I strongly disagree with "mad the swine"; I'm against "incitement to racial/religious hatred" laws. Even the likes of Fred Phelps should be entitled to express their opinions, however repugnant they are.
However, I have to disagree with you on one point. You say,
[my emphasis] While I believe in free speech, I would also argue that, where a person's integrity or professional reputation have been smeared by the dissemination of a known falsehood against him or her, he or she should have a legal remedy available. I think US law sets too high a bar for establishing libel. Obviously, it is always a difficult balance between free speech and the right of individuals to protect their reputation from malicious falsehoods; but I don't think the US courts draw that line in the right place.
I'm talking here about false claims of fact, not expressions of opinion. As you point out, claims like "person X is evil/insane/an idiot" obviously are not, and should not be, capable of constituting actionable defamation; they're a part of free expression.
But if I were a public figure and someone started spreading a false and damaging rumour that damaged my personal reputation (accusing me of a crime, for instance), then I would argue that I ought to have a civil remedy against them, unless they had reasonable grounds to believe that the rumour was true. There shouldn't be a burden of proof on me to demonstrate that they showed a "reckless disregard for the truth" or intended to defame me. Rather, they should have to establish that they had a reasonable basis for believing their claims to be true.
I don't see that this would hamper free public debate in any substantial way. A person would still be free to be as critical as they wish of other people's ideas. They just wouldn't be free to tell lies about them.
Posted by: Walton | October 8, 2009 6:08 AM
IF the defendant has knowledge of the acts of violence after their "prayers" & STILL fail to SPECIFICALLY say in later "sermons" that they ONLY mean for GOD Himself to harm the plaintiff & that they do NOT want humans to do it then IMO they are having a "reckless disregard" for the plaintiff's safety & therefore should be held accountable for damages.
Posted by: TJ | October 8, 2009 6:17 PM
Whatever happend to the big game changing photo ed had and forwarded onto these guys?
Or was that something else?
Posted by: ian | October 9, 2009 3:54 PM
Re. the charge that imprecatory prayer is used as a call for members of religious extremist groups to commit violent acts against specified targets:
I recently submitted, via channels to federal law enforcement, what appears to be documentary evidence supporting Weinstein's point.
I'll be seeking permission to release that document to Weinstein, or in lieu of the document, I'll be pointing his attorneys to the sources for the evidence.
Sorry I have to post this anonymously and I can't offer anything else here aside from these comments. However, if what I found is of any value to Weinstein, you will see it come up in his lawsuit.
Posted by: anonymous | October 9, 2009 10:46 PM
This is the prayer that Mikey was referring to...
(*Navy whistle*) "Stand by for the morning prayer":
"Heavenly God, today we pray imprecatory prayers from Psalm 109 for the enemies of religious liberty including ***** **** and Mikey Weinstein, who recently issued a press release attacking me personally. God, do not remain silent, for wicked men surround me and tell lies about me. We bless them but they curse us. Therefore, find them guilty, not me. Let their days be few and replace them with godly people. Plunder their fields and seize their assets. Cut off their decendants and remember their sins. In Jesus name, Amen."
If you read the rest of Psalm 109, you'll discover that it asks for things not necessarily from God:
11 May a creditor seize all he has;
may strangers plunder the fruits of his labor.
12 May no one extend kindness to him
or take pity on his fatherless children.
http://www.biblegateway.com/passage/?search=Psalm+109&version=NIV
As someone who learned first-hand what these whack-jobs do when their "leaders" send out their hateful feelings in "prayers" or press releases (just search on "Celtic Diva" and "Sarah Palin" together), I cheer-on Mikey Weinstein. These people are abusing their free speech and need to be smacked-down.
Posted by: Linda K.B. | October 20, 2009 10:14 PM