Following the Lead of Defamation: A Definitional Balancing Approach to Religious Torts

Article excerpt

In the landmark 1964 case of New York Times v. Sullivan,(1) the United States Supreme Court confronted the tensions that existed between the traditional tort of defamation and the First Amendment to the Constitution. Acknowledging that allowing recovery for defamation raised free speech questions, the Court did not completely eliminate the tort, but rather limited both the definition of defamation that states could apply and the damages that plaintiffs could recover. In the end, recovery became more difficult, but not impossible.

Recently, courts again are confronting the tensions between the First Amendment and tort law. This time, however, the First Amendment questions arise from the Free Exercise Clause, and the tort action, less established than defamation, is intentional infliction of emotional distress.(2) In these "religious tort" cases, plaintiffs allege that religiously motivated conduct has resulted in a tortious injury to them.

Religious tort suits arise in a number of factual contexts. Some involve methods of religious recruitment;(3) others involve religiously motivated counseling.(4) One specific type concerns a religious group's practice of shunning ex-members.(5) Applying traditional, ad hoc free exercise analysis(6) to religious tort claims, however, has led to varying results in the face of similar fact patterns. In confronting religious tort cases, courts have held either that the Free Exercise Clause does not apply or, conversely, that it completely prevents recovery.

The unpredictability created by both the application of traditional, ad hoc free exercise analysis and the open-endedness of the intentional infliction of emotional distress tort may have a chilling effect on religious actions. Unable to predict the legal implications of their religiously motivated actions, risk averse religious actors may cease to engage not only in actionable conduct, but also in conduct that would be protected under the Free Exercise Clause.

To address the possible chilling effect in religious tort cases, I propose that the "definitional balancing"(7) approach established in defamation law should be extended to cases alleging "outrageous" religious conduct. This approach allows recovery in tort but balances First Amendment concerns within the definition of the tort itself by making recovery more difficult. Part I outlines the tort of intentional infliction of emotional distress; the traditional, ad hoc balancing analysis used by courts in free exercise cases; and the constitutional questions raised by religious tort claims alleging intentional infliction of emotional distress. This part shows how the open-endedness of the intentional infliction of emotional distress tort, combined with the free exercise balancing analysis, produces ad hoc results in cases against religious defendants. Part 11 briefly summarizes defamation law as the Supreme Court has outlined it and details the elements of the definitional balancing approach adopted by the Court. Finally, Part III proposes that a definitional balancing approach similar to the one used in defamation law should be applied in religious tort cases alleging intentional infliction of emotional distress. This part reviews previous incomplete attempts to apply definitional balancing (either implicitly or explicitly) in religious tort cases. It then proposes a comprehensive solution, suggesting that the proper application of the intentional infliction of emotional distress tort to religiously motivated conduct will include a standard for recovery requiring proof of common law malice, a higher standard of proof, and limits on damages.

I. Intentional Infliction of Emotional Distress as a Religious Tort

Claims of intentional infliction of emotional distress against religious actors based upon religiously motivated conduct raise concerns involving free exercise of religion. First, courts' emphasis on the "outrageous conduct" element of the tort grants broad discretion to juries regarding liability and damages. …