"Mentally Diseased", Defamation per se, and US Law

by DT 11 Replies latest jw friends

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  DT

  The Watchtower article on "mentally diseased" apostates has caused a lot of commotion and might even be investigated as hate speech in some countries. The United States has a different political climate and a different approach to balancing individual freedoms against the freedoms of religious organizations. This makes it unlikely that charges of hate speech would get much traction in the United States, unless things escalate further or result in violence.

  I was wondering if apostates might have a case for libel in the United States or other countries. The statement that apostates are "mentally diseased" was directed at a specific group of people composed of people that can be personally identified based on either the dictionary definition or by comments made in Watchtower magazines. It can't be defended as factual since most apostates do not have mentel diseases. It is true that they quoted a scripture that contains the term "mentally diseased". However, they made a further statement that apostates are "mentally diseased" that is neither a quote nor something that can be directly concluded from that scripture. It's also significant that they are the ones who put the term "mentally diseased in their own Bible, without a precedent from other translations.

  If they said apostates are "spiritually diseased" than it might be a different story as it's a matter of opinion. They could have also said something like we believe apostates fit the description of that scripture. But no, they made a direct, extremely damaging statement that can be proven false.

  I think there a lot of countries where this might be a possibility. I welcome your comments and observations.

  I wanted to add some more information about the United States. The following quote comes from Wikipedia and acknowledges that it can be harder to prove defamation in the United States. http://en.wikipedia.org/wiki/Defamation

  "Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries. In the United States, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law. Some states codify what constitutes slander and libel together into the same set of laws. Criminal libel is rare or nonexistent, depending on the state. Defenses to libel that can result in dismissal before trial include the statement being one of opinion rather than fact or being "fair comment and criticism". Truth is always a defense."

  However, consider this comment which could be a source of hope.

  "Most states recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory"

  Another Wikipedia article has this to say. http://en.wikipedia.org/wiki/Defamation_per_se#Defamation_per_se

  "All states except Arizona, Arkansas, Missouri, and Tennessee recognize that some categories of false statements are so innately harmful that they are considered to be defamatory per se. In the common law tradition, damages for such false statements are presumed and do not have to be proven. "Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things":[7]

  Allegations or imputations "injurious to another in their trade, business, or profession"

  Allegations or imputations "of loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness)

  Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)

  Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)"

  I'm sorry that I haven't been able to do more research. I just wanted to throw these thoughts out there so we could discuss them. I realize that freedom of religion could still be an important obstacle. However, I don't think that it is insurmountable. (The Watchtower settlements of pedophilia cases is an indication of that.)

  I should also point out that several states have criminal defamation laws, so lawsuits aren't the only possibility. Criminal cases might be more practical at first. Private lawsuits could always follow if defamation is proven. My state has a criminal defamation law, so I will do more research and possibly register a complaint.

  Disclaimer: I'm not a lawyer. I'm just looking for a helpful discussion of this issue.
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  AnnOMaly

  If a group like the Westboro Baptist church can have the Supreme Court uphold their right to freedom of expression, then I wonder if the 'mentally diseased' jibe will even blip on the legal radar.
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  nugget

  It is a tough one since the right to free speech is sacrosanct. Since the authority and the words originate in the US it is in that country that action needs to originate.

  owever if Westboro get away with their hate speech then a dangerous precident has been set.
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  DT

  Thank you for your comments. I need to learn more about the Westboro church. The problem may be that most of their statements have been opinion, even if they are highly offensive. Have they been taken to task over saying things that are meant to be statements of fact, but can be proven false?
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  Elsewhere

  > If a group like the Westboro Baptist church can have the Supreme Court uphold their right to freedom of expression, then I wonder if the 'mentally diseased' jibe will even blip on the legal radar.

  Most of the members of Westboro Baptist church are lawyers and couch their words very carefully. They never directly say anything negative about an individual, other than "God hates [insert group]". That alone is not slander or libel.
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  Billy the Ex-Bethelite

  In the court of US public opinion, Westboro Baptist Church lost the case years ago. Sure, they can still picket, but people recognize them as a hate group hiding under the cloak of religion. Similarly, a legal case against JWs may not succeed, but in the court of public opinion, JWs are extremely vulnerable. For thinking people, WT quotes can be used without any further comment to expose their duplicity.
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  DT

  "Similarly, a legal case against JWs may not succeed, but in the court of public opinion, JWs are extremely vulnerable."

  I agree. If a simple complaint can lead to an investigation, then that could be victory, even if it doesn't go any further.
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  DT

  I realise that there are many difficulties with this kind of approach. I suspect that it wouldn't work to use state criminal defamation laws to attack the Watchtower Society in New York. However, the situation could be different for statements made in that state or for knowingly distributing literature that is libelous. I think a case could be especially strong if an apostate is mentioned by name or it is obvious who is being referred to.
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  DT

  Here is a good link about who can sue for defamation in the United States. http://www.citmedialaw.org/legal-guide/who-can-sue-defamation

  It's hard for members of a group to sue for group libel, but there are some cases where it might be possible, especially if statements are made in the local congregation that tend to identify specific individuals. If anyone has any recordings of that July Watchtower study, it might be worth reviewing them to see if any statements were made, especially by elders, that were defamatory.

  Several states have criminal defamation laws, but it might be hard to get the state interested in prosecuting the case. It's also possible that the specific law could be judged as unconstitutional. I think this approach remains a possibility, but it might require greater publicity and damaging events that take place in the specific state.

  In any case, I think it's noteworthy that the specific statements in that Watchtower were worded in such a way to make it much easier to prove that they are defamatory. It is odd that they were so careless when some minor revisions could have taken much of the heat off them. It is also significant that the defamatory statements were of a nature that is often viewed as extremely damaging from a legal sense. Implying that people have a mental illness that is contagious is particularly outrageous. The circumstances make it clear that the intent is to isolate them and interfere with their business and their constitutional rights.

  Does anybody have any comments about how this could play out in other countries?
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  kurtbethel

  In the US, a civil case could get some standing if there are damages caused by the libelous comments. Something like a relationship being damaged by shunning caused because of those comments could be actionable. Someone who loses their job because of this could have a case. The "mentally diseased" comment has taken this out of the religious freedom category and placed it into discrimination of the disabled. Someone in the writing department has commited an epic fail, so let's see how many people can step up and exploit it.