Defamation and the Abuse Blogger: I’m Safe and Here’s Why

From what I’ve seen, all the time, bloggers about abuse get sued–or threatened with a lawsuit–by their alleged abusers.  This strikes fear into the hearts of people who want to tell their stories, but don’t want to be sued over it.  Just as when my abusers/bullies threatened me.

I have examined the legal documents used in the case of Beaverton Grace Bible Church against Julie Anne Smith, and come up with the following quotes:

Quotes from Request to Strike Defamation Lawsuit Against author of BGBC blog, Julie Anne Smith:

Even viewed from a secular perspective, Hannah’s statement, “[Pastor] Chuck micro-manages every detail, like having EVERY song approved by him” is not defamatory, nor are Julie Anne’s opinions that something or someone is “creepy,” “legalistic,” or “controlling.”

There is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. Unflattering opinions are not defamation.

While offensive opinions are not actionable defamation [Gertz, supra; Milkovich, supra], there is also a related federal Constitutional rule that a derogatory opinion based on stated facts is nonactionable as defamation, regardless of how unreasonable the opinion drawn from those stated facts might be.

A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.

A statement is “true” if “substantially” true–this is if the “gist” or “sting” is true, even if the statement contains slight inaccuracies.

In a similar case, the Northern District of California noted that when statements are made on “obviously critical blogs, … readers are less likely to view statements as assertions of fact rather than opinion.” Art of Living, 2011 WL 2441898, at *7.

The court cited a previous decision which explained that statements made on a personal website, through internet discussion groups, and as part of heated debate are less likely to be viewed as statements of fact. Id. (citing Nicosia v. DeRooy, 72 FSupp 2d 1093, 1101 (ND Cal 1999)).

In this case the “broad context,” is the internet, where particular norms of expression have evolved. These are recognized for spontaneity, informality, and often exaggerated and hastily written exchanges of opinions.

Readers understand the atmosphere of overstatement expressed by web conventions, such as ALL CAPS (a visual representation of shouting), just as they understand a “review” and “take such railings with a grain of salt.” Moldea v. New York Times Co., 22 F3d 310, 313 (1st Cir 1994).

The term “bully” or “bullies” is just not “defamatory.”

The reference to “Narcissism in the Pulpit” was actually a hyperlink to resources identifying characteristics of clergy who may not minister appropriately. JAS Decl., ¶ 41.35 In context, (1) the reference is to an article anyone could read, and (2) no one would take this as a medical diagnosis. It is just not defamatory.

Weyrich v. New Republic, Inc., 235 F3d 617 (DC Cir 2001), held that the magazine article’s references to plaintiff’s

“bouts of pessimism and paranoia” and “habits of suspicion, pessimism, and antagonism,” were not defamatory, since “these comments cannot reasonably be understood as verifiably false, and, therefore potentially actionable, assertions of mental derangement” [Id. at 620]

and “[n]ever does the article claim to make a psychological pronouncement, nor would a reasonable reader understand it to do so.” Id. at 625.

See also, Lieberman v. Fieger, 338 F3d 1076, 1081 (9th Cir 2003) (attorney’s comments that psychiatrist was “Looney Tunes,” “crazy,” “nuts,” and “unbalanced” were protected under First Amendment as statements of opinion).

To Chuck: if you would have manned up and acknowledged that we were parting ways because we weren’t seeing eye-to-eye on certain issues, you never would have heard from us again, expresses personal dissatisfaction with the response to the Smiths’ dissent, but nothing in that statement is provably false or “defamatory.”  See the number of accusations of “lying” or “liar” found to not be defamatory in context in the several Obsidian v. Coxopinions.

The vague term, “spiritual abuse” is not capable of defamatory meaning. For example: The term “lawsuit abuse” is vague and does not have a definite meaning.

It is a hyperbolic expression of opinion, not a verifiable statement of fact. The sign may have offended Plaintiffs or caused them discomfort, but it was not actionable.

Turn a blind eye to known sex offenders in the church and other references to the investigation and conviction of a teenage church member on criminal charges of rape of a child and other counts of sexual abuse are discussed together, below.

This statement is protected as commentary on church policies about the role of family and the state in dealing with a minor congregant accused of abuse. It is also “pure” opinion based on facts known to the congregants and Plaintiffs, since the offender was tried as an adult and the records are public.

This is a very destructive and disturbing ‘church,’ This is not a safe place, and The gossip/slander, disclosure of what goes on in private counseling sessions * * *, are clearly opinions based on facts stated by Julie Anne and facts known to the congregants.

All the foregoing italicized statements are all closely intertwined with the ongoing discussion of termination of the Evangelical Coordinator and church governance and are also “pure” opinion based on 36. Paragraphs 9.e-f, 9.i-j, allege “republication” of some (apparently) deleted posts but do not allege new matter other than allegations above stated facts and facts known to the congregants.

Web “[r]eaders were ‘free to form another, perhaps contradictory opinion from the same facts’ * * * as no doubt they did.” Standing Committee, supra, 59 F3d at 1440. As Professor Smolla explains:

With “pure” opinion, as that term is used in the RESTATEMENT, either the maker of the comment states the facts on which the opinion is based, or the recipient of the communication is already aware of the facts upon which the opinion is based.

A pure opinion does not lose its protected status merely because it is ostensibly cast in factual form, if it is clear from the context that the maker does not intend to assert another objective fact, but only his personal view on the objective facts already stated.

We have shown that in this case it would not be possible to show even negligence on the part of Julie Anne or Hannah, since each their statements were religious beliefs, opinions and opinions based on stated information.

However, in their Complaint, Plaintiffs have alleged and taken on the burden of proving “malice” as the level of fault.  RESTATEMENT (2D) TORTS, § 613 states:

(1) In an action for defamation the plaintiff has the burden of proving, when the issue is properly raised * * * (g) the defendant’s negligence, reckless disregard or knowledge regarding the truth or falsity and the defamatory character of the communication * * *.

“Malice” has a particularized meaning in defamation law. To defeat the Special Motion, Plaintiffs must offer substantial evidence of “actual malice” as that phrase is used in the RESTATEMENT, the United States Supreme Court, and Oregon Constitutional jurisprudence, which is:

that Defendant had reckless disregard for the truth or falsity or actual knowledge of the falsity of her statements (to the extent any statement is “factual”).

Gardner v. Martino, 563 F3d 981, 989 (9th Cir 2009), explains that a radio talk show host’s criticism of an Oregon business, based only upon facts he heard from a caller, was not even “negligent” and did not reach the level of recklessness required for “malice.” He had no duty to investigate further. The Court upheld dismissal under ORS 31.150, et seq.

Actual malice in its constitutional sense is a subjective factual standard, not a pleading.

St. Amant v. Thompson, 390 US 727, 88 SCt 1323 (1968).38 St. Amant, a candidate for sheriff, accused the current sheriff, plaintiff Thompson, of official corruption.

St. Amant had no personal knowledge. He relied solely on an affidavit from another and did not investigate further.

The United States Supreme Court reversed a defamation verdict, because there was insufficient evidence of St. Amant’s subjective reckless “disregard” for the truth or falsity of the affiant’s statements.

[R]eckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing.

There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.  St. Amant v. Thompson, 390 US at 731.

Malice does not mean subjective ill-will or here Julie Anne’s intention to “prevent other families from joining.” Instead, it means her subjective knowledge that some of her statements were “false.” She had no duty to “investigate” or doubt the words of others as she heard or understood them….

[P]laintiffs’ allegations in actions for libel that defendants “rel[ied] on statements made by a single source,” or failed to verify statements received from an “adequate news source,” or performed “slipshod investigation,” have all been rejected as bases for inferring actual malice.

Also, for spiritual abuse bloggers, the document goes into detail about religious speech being protected by the First Amendment, and courts having no jurisdiction over what is defamatory there.

From a follow-up document:

While the inquiry in any given case is fact-specific, certain themes are discernable and worth noting here. First, statements made as part of an acknowledged heated debate often negate the impression that the defendant was asserting an objective fact. * * *. Art of Living Found. v. Does 1-10, No. 10 CV-05022-LHK, 2011 WL 2441898, at *7 (ND Cal June 15, 2011) (readers less likely to view statements made on blogs with “heated discussion and criticism,” as assertions of fact) * * *.

Second, while generally, “online speech stands on the same footing as other speech,” In re Anonymous Online Speakers, 661 FedAppx 1168, 1173, No. 09-71265, 2011 WL 61635, at *2 (9th Cir Jan 7, 2011), blogs [FN1] are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact.

Eg, Art of Living Found., 2011 WL 2441898, at *7 (statements made on obviously critical blog with “heated” discussion and criticism less likely to be viewed as assertions of fact); Nicosia, 72 FSupp2d at 1101 (statements made on personal website and through online discussion group less likely to be seen as assertions of fact);

see also Too Much Media, LLC v. Hale, 206 NJ 209, 234-35, 20 A3d 364, 378-79 (2011) (noting that “online message boards provide virtual, public forums for people to communicate with each other about topics of interest” and “promote a looser, more relaxed communication style”) (internal quotation and brackets omitted); Sandals Resorts Int’l, Ltd. v. Google, Inc., 925 NYS2d 407, 415-16, 86 AD3d 32, 43-44 (NY AppDiv 2011)

(noting that the “low barrier to speaking online allows anyone with an Internet connection to publish his thoughts, free from the editorial constraints that serve as gatekeepers for most traditional media of disseminating information [] [o]ften result[ing] in speech characterized by grammatical and spelling errors, the use of slang, and, in many instances, an overall lack of coherence”;

observing that readers give less deference to allegedly defamatory remarks published on online message boards, chat rooms, and blogs, than to similar remarks made in other contexts) (internal quotation omitted).  FN1.

As explained by one court, an online blog is a “frequently updated website consisting of personal observations, excerpts from other sources, or, more generally, an online journal or diary.” Quixtar, Inc. v. Signature Mgmt. Team, LLC, 566 FSupp2d 1205, 1212 (DNev 2008). Thus, a blog is distinct from other online speech affiliated with, for example, a major media publication.

In the broad context, the statements are made on obviously critical blogs (“Leaving Art of Living” and “Beyond Art of Living”) with heated discussion and criticism of the Art of Living Foundation and Ravi Shankar. In this context, readers are less likely to view statements as assertions of fact rather than opinion.

Julie Anne’s commentary must be read in the full context of the church dispute and rest of the blog, as well as the entire lengthy entry [3rd Williams Decl. Ex. B] and the actual surrounding text:

He will have a hard time in court proving that my words are defaming. I wouldn’t waste my time on defamation – what is there to gain in that? I will, however, sacrifice my time and energy in speaking the truth when there is an abuse of power going on and lives are at risk.

In the context of the blog and the understandable reaction to a lawsuit, the statement clearly emphasizes that the religious convictions and opinions in the blog are important to Julie Anne because of the perceived risk to spiritual “lives.”

As a believer, she sees threats to spiritual growth as risks to eternal life. No reasonable person would see this as an allegation of fact, such as an accusation of threatened murder.

The words, the entire entry–the blog in toto–are not defamatory. This is simply strongly phrased opinion based on religious conscience.

“Oppressive” and “abusive” are subjective terms. Julie Anne’s summary of her opinion and choice of adjectives is not defamatory. As discussed, the opinions are based on her personal experiences and the controversial shunning of her family.

It is opinion based on stated facts. It is protected expression. See, Standing Committee v. Yagman, 55 F3d 1430 (9th Cir 1995), and discussion at Memorandum in Support (April 27, 2012), pp. 16-17.

Julie Anne was served with the Complaint on March 1. It is not surprising that she would perceive the Complaint, filed by her former shepherd, as further “interfering” with her lawsuit is a serious matter.

Finding an Oregon attorney while in the Richland, Washington area can be daunting. $500,000 damages is a lot of money. It is a devastating threat of financial ruin to a family with a stay-at-home mom and seven children.

Allegations about “punitive damages” are empty threats with no legal basis–but seemed threatening to Julie Anne. Perceiving that Plaintiffs were “interfering” with her peace of mind is not defamatory. It is Julie Anne’s opinion. It is protected speech.

I use no real names, since this blog is not about vengeance, but about sharing my personal struggles and hopefully helping others with theirs.  Everything in my blogs is based on what I have witnessed with my own eyes/ears, and things I have been told by Richard or others who know Richard and Tracy, things which I had no reason to doubt.

In the very few (two?) cases when it came from someone other than Richard, I could confirm it with my own knowledge, as a witness and/or from what Richard told me.  I can produce these sources, which are in writing.

Also, any opinions I formed based on these things, are protected by the First Amendment, especially since I’m simply blogging my personal journal, not making medical pronouncements etc. in the newspaper using real names. 

No, I’m trying to understand why some people act this way, why some people abuse, why some people don’t seem to care that you’re in pain.  It’s a means of analyzing, understanding and then setting aside the actions of my abusers, so that ultimately I stop internalizing them, and realize they were not my fault.

The same as I see on other abuse blogs, such as One Mom’s Battle, where the blogger claims her ex is a narcissist, even though he has no medical diagnosis.  But she does not name him, so any time he tries to sue her over it, he fails.

Identifying someone as sociopathic or narcissistic is about discovering that you have to cut them out of your life and keep them out, rather than giving them the benefit of the doubt or trying to change them (see here).

Whether they truly are sociopathic or narcissistic is irrelevant, because their behavior matches that of a narcissist, and therefore is no good for you.  The information is out there so we can learn to identify such people without having to lug a psychiatrist along with us everywhere we go, so we can protect ourselves.

And all sorts of abuse blogs talk about “narcissist” or “sociopath” etc. family members, but do not name them, so the blogs are still up.  These blogs are about finding healing and learning that it’s not the victim’s fault.  They are not about vengeance–which would mean using real names and identifiers for the purpose of destroying reputations.

Therefore, any claim my blog stalkers might make against me, would be frivolous and subject to dismissal–ie, a huge frickin’ waste of time and money.  Note that the case against Julie Anne Smith and others who were sued along with her, was dismissed–and the church now has to pay her legal fees.

Unfortunately, we live in a world where we have to watch everything we say, give everyone the benefit-of-the-doubt, worry about being sued for “slander” and basically tolerate everyone and everything.

What if the good people stood up against the bad people, exposed them, fought them, and became strong against them?

…And for those harmed by Sociopaths or someone with a Personality Disorder: What if you didn’t hide away with shame? What if you spoke out, used your experiences to teach others, and stood tall and strong for what you believe in? –Lynna, What if the Teachers Had Guns?

But how can we, as lay persons, make that determination and measure the leap from having JUST a personality disorder to being a sociopath without a conscience? How can we accurately, as non-scientists, measure the truth and conscience of another person?

Out of respect for the researchers in the field of psychology and neurology, we can’t. Only a skilled and experienced professional in the field can diagnose or determine the mental state of a person we date, marry, or cohabitate.

But we can still listen to our intuition and act in order to protect our own mental health and existence and that of our children.

So, instead of waiting to find out if your Cluster B is also a sociopath, it’s best to be on the safe side and assume that he is.

In my experience with a sociopath, I made the mistake of trying to disprove he was a narcissist (because who wants to accept being a victim?) when I should have gone with the safer assumption that he was a full-blown sociopath.

I would have escaped sooner, and then I could have spent my time away from him (in a safe place) reflecting, researching, and making the determination as to what he was and remains to be.

Making such an extreme assumption is not a very scientific or politically-correct thing to do, but it certainly would have saved me a lot of blame, shame, and guilt.

I recommend that each of you, if in an abusive relationship, assume the person who is abusing you (physically, emotionally, and/or sexually) to be a sociopath and get out, seek support, and try to put your life back together before it’s too late. –Paula Carrasquillo, The mask of a sociopath: awareness of cluster B disorders and sociopaths

Identifying the Narcissistic Sociopath–After reading this on Paula’s Pontifications, sociopathy becomes a distinct possibility not just for one, but for both my blog stalkers.  It is, of course, hard to be absolutely sure, but as the above blogger advises, better to behave as if they are.  It’s safer.

In my opinion, the victims of sociopaths and cluster B personality types are better at diagnosing these monsters than any psychiatric professional.

Sure, doctors have the background in the terminology and the experience with real “crazies.”

But do they have the real-life experiences and reactionary impulses victims have? Are they going to get the “truth” of what these monsters did straight from the horse’s mouth? Do they have video, audio, or even images of these creeps in action?

Most likely no (unless they are dealing with convicted sociopaths who could possibly be countered with lots of jail-house video on file.)

But your everyday, non-convicted sociopaths just lie with impunity and make gigantic fools of these skilled and highly-trained pros. (Sorry, doc, but it’s the truth.) –Paula Carrasquillo, You know in your heart she’s a sociopath.  So what’s holding you back from saying it?

My story is also in the public interest.  Not only are we allowed to tell our autobiographies and publish memoirs, but the number of people searching for stories and information just like mine, shows it is of interest.

The BGBC/O’Neal lawsuit was pivotal to watch last summer because it discussed freedom of speech regarding church abuse.

Because of the clear victory in my case, a precedent has been set, giving bloggers added confidence to know that it is within their rights to publish their stories and express their opinions about their negative experiences in churches or ministries with strong words like: spiritual abuse, cult, creepy.

They can even discuss publicly online how churches handle sex abuse or sex offenders. –Julie Anne, Are Bloggers & the Internet Having a Direct Affect on Churches and Their Policies?

I am 100% supportive of outing these fools by name. Unfortunately, there are many who don’t understand that outing them is a direct consequence and they should deal with it. They don’t.

Instead, they seek low-life attorneys willing to send cease and desist letters to scare us into thinking we’re committing a crime.

We’re not!! It’s called freedom of speech. If they think we’re lying and hope to sue us for defamation, libel, or slander, they need to prove that in court. The burden in U.S. courts is on the complainant, not the defender. I believe it is opposite in some countries, including Canada and the UK. :) –Paula, Lance Armstrong’s Jailhouse Confession