Sheral A. Hyde, Esq. SBN 131452
(626) 358-7471 Fax: (626)
358-2894
E-Mail: Cmulvihill@cmsynergy.com
SUPERIOR COURT OF THE STATE OF
CALIFORNIA
COUNTY OF ORANGE – UNLIMITED JURISDICTION
|
PAUL ROLF
JENSEN,
Plaintiff,
vs.
FAHED ABU-AKEL,
Defendant |
)
)
)
)
)
) |
CASE NO.: 03CC06949
[DOCUMENTS FILED CONCURRENTLY HEREWITH DESCRIBED IN “INDEX
OF DOCUMENTS FILED WITH THE COURT” ALSO FILED CONCURRENTLY HEREWITH]
DATE:
May 28, 2003
TIME:
3:30 p.m.
LOC:
C19
JUDGE:
Randell L. Wilkinson
|
MEMORANDUM OF
POINTS AND AUTHORITIES
“SLAPP plaintiffs do not care about winning their suits.
The purpose is to “punish” and distract those who oppose them by
threatening ruinous damages and imposing litigation costs for exercising their
free speech rights” California Code of Civil Procedure §425.16
;
Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2002)
7:207 et. seq.
I.
INTRODUCTION
THE REVEREND DR. FAHED ABU-AKEL (THE REV. ABU-AKEL) is the immediate past
Moderator of the General Assembly of the Presbyterian Church (U.S.A.)
(Superior Court for the State of California County of Orange
Paul Rolf Jensen v. Fahed Abu-Akel
Case
No. 03CC06949 (California State
Court Complaint), page 1, line 2 to page 2, line 1)[1].
“The General Assembly is the highest governing body of this church and
is representative of the unity of the synods, presbyteries, sessions and
congregations of the Presbyterian
Church (U.S.A.)” Presbyterian Church (U.S.A.) Book of Order, G-13.0101.
As Moderator of the General
Assembly, THE REV. ABU-AKEL held the highest elected office in the
Presbyterian Church (U.S.A.) (California State Court Complaint, page 2, line
1; Declaration of THE REV. ABU-AKEL (THE REV. ABU-AKEL Decl.) ¶4; see, also
the Affidavit of the Stated Clerk Edwin W. Albright, Exhibit “6” to EXHIBITS
TO THE REV. ABU-AKEL’S SPECIAL MOTION TO STRIKE SLAPP).
PAUL ROLF JENSEN, SBN 154013 is a member of St. Andrew’s Presbyterian
Church in Newport Beach, California (California State Court Complaint, page 2,
line 4 to 5).
On
January 21, 2003, PAUL ROLF JENSEN, acting as counsel for the Session of
Westminster Presbyterian Church, Canton, Ohio, filed a remedial complaint
before the Permanent Judicial Commission of the General Assembly of the
Presbyterian Church (U.S.A.) (hereinafter, The Remedial Complaint) (California
State Court Complaint, page 3, line 8; lines 16-18; THE REV. ABU-AKEL Decl.
¶7). The Permanent Judicial
Commission of the General Assembly of the Presbyterian Church (U.S.A.)
dismissed The Remedial Complaint on March 19, 2003 (California State Court
Complaint, page 4, line 21; THE REV. ABU-AKEL Decl. ¶¶15, 16, and 18).
As the Los Angeles Times reported, on May 24, 2003, the Remedial
Complaint was “a failed effort by conservatives to call a special assembly of
delegates to enforce the ban” on gay and lesbian clergy, “Presbyterians
Again Take Up Gay Question, The Los Angeles Times, May 24, 2003
,
Declaration of Cynthia Coulter Mulvihill (Mulvihill Decl.) ¶4.
On April 4, 2003, THE REV.
ABU-AKEL reported to a meeting of the General Assembly Council of the
Presbyterian Church (U.S.A.) (THE REV. ABU-AKEL Decl. ¶6.)
The Moderator of the General Assembly makes a report to the General
Assembly Council whenever the Moderator is present.
During the report, THE REV. ABU-AKEL made the following statement, in
part, “So, when I read that the
Moderator, the Stated Clerk and the staff in Louisville have a conspiracy, I
became strong in the Spirit because I knew that this statement was a lie and I
realize the truth is more powerful than the lie” (THE REV. ABU-AKEL Decl. ¶6).
In the same speech, THE REV. ABU-AKEL said, “So, the media can
[publicize] and cook a million stories, but when you know the truth, that is
the power of the truth.” These
statements were comments on the conspiracy allegations contained in The
Remedial Complaint, THE REV. ABU-AKEL Decl. ¶7.
PAUL ROLF JENSEN filed the California State Court lawsuit on May 20, 2003,
alleging slander by THE REV. ABU-AKEL.
On May 21, 2003, THE REV. ABU-AKEL filed a Request for Vindication with
the Presbytery of Greater Atlanta (THE REV. ABU-AKEL Decl. ¶19).
The Request for Vindication is found at D-9.0101 of the Rules of
Discipline in the Book of Order (Presbyterian Church (U.S.A.) Book of
Order, D-9.0101
).
In his Request for Vindication, THE REV. ABU-AKEL asked the Presbytery
to appoint an investigating committee because he was alleged to “have
committed the offense of slander and bearing false witness.”
Request for Vindication, May 21, 2003, Exhibit “5” to EXHIBITS TO THE
REV. ABU-AKEL’S SPECIAL MOTION TO STRIKE SLAPP.
PAUL ROLF JENSEN bases this California State Court Complaint for slander
solely on this April 4, 2003, statement, which he actually incorrectly
sets forth in his California State Court Complaint.
II.
CALIFORNIA’S
ANTI-SLAPP STATUTE
(CALIFORNIA CODE OF CIVIL PROCEDURE §425.16
)
California Code of Civil Procedure §425.16
(sometimes
referred to as California’s anti-SLAPP Statute) establishes a “Special motion
to strike action arising from an act in furtherance of a person's right of
petition or free speech under United States or California Constitution in
connection with a public issue"
“(b)(1) A cause of action against a person arising from any act of that person
in furtherance of the person's right of petition or free speech under the
United States or California Constitution in connection with a public issue
shall be subject to a special motion to strike, unless the court determines
that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim . . .
“(e) As
used in this section, "act in furtherance of a person's right of petition or
free speech under the United States or California Constitution in connection
with a public issue" includes: . . . (2) any written or oral statement or
writing made in connection with an issue under consideration or review by a .
. . judicial body [or] . . .. (4)
any other conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection with a
public issue or an issue of public interest”
THE REV. ABU-AKEL’S statement is protected under two distinct categories of
California’s anti-SLAPP statute - the right of free speech (California Code
of Civil Procedure §425.16
(b)(1)), and a statement made in connection with an issue under
review by a judicial body (California Code of Civil Procedure §425.16
(e)(2)).
A.
The California Supreme Court’s Two Step Process for Determining Whether
a Lawsuit is a SLAPP
“[California Code of Civil Procedure] Section 425.16
posits
. . . a two-step process for determining whether an action is a SLAPP.
First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected
activity [cites]. A defendant
meets this burden by demonstrating that the act underlying the plaintiff's
cause fits one of the categories spelled out in section 425.16, subdivision
(e)” Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th
1036, 1043
.
If the court finds that such a showing has been made, it must then
determine whether the plaintiff has demonstrated a probability of prevailing
on the claim, Navellier v. Sletten (2002) 29 Cal.4th 82
.
This action meets both prongs of the SLAPP test: PAUL ROLF JENSEN has attacked
two distinct rights held by THE REV. ABU-AKEL and protected by the anti-SLAPP
Statute – the right of free speech, and the right to comment on litigation.
Furthermore, PAUL ROLF JENSEN cannot possibly prevail on his California
State Court Complaint, satisfying the second prong.
B.
THE REV. ABU-AKEL made his statement in connection with an issue filed
before the Presbyterian Church (U.S.A.) General Assembly Permanent Judicial
Commission, a ‘judicial body’ under the plain meaning of California Code of
Civil Procedure §425.16
(e)(2)
In
Presbyterian Church in the United States v. Mary Elizabeth Blue Hull
(1969) 393 U.S. 440
,
the United States Supreme Court explicitly recognized the existence of a
proper judicial body within the Presbyterian Church (U.S.A.)[2].
The United States Supreme Court stated that a dispute involving church
property was in the jurisdiction of the Presbyterian Church (U.S.A.) “through
its proper judicial body” [emphasis added] Presbyterian Church in
the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church
(1969) 393 U.S. 440
,
page 444 at footnote 3. In
Presbytery of Riverside v. Community Church of Palm Springs (1979) 89 Cal.
App. 3d 910
[3],
California’s Fourth Appellate District affirmed the existence of a
“judicial body” within the Presbyterian Church (U.S.A.).
The Florida Supreme Court rendered a succinct, published holding about the
structure of Presbyterian churches.
“The Presbyterian churches in the United States are not congregational
in government but are representative, they are governed by an ascending series
of judicatories known as the session, the presbytery, the synod and the
general assembly, which is governed by a constitution and an ecclesiastical
code giving it legislative, executive and judicial powers.” Baldwin v.
Mills (1978) 362 So. 2d 2
. Florida’s
decision in Mills
was
prior to the reunification of the “Southern Branch” and “Northern Branch” that
now constitute the Presbyterian Church (U.S.A.) (Graninger Decl. ¶¶5, 6, 7).
The United States Supreme Court affirmed this characterization of the
structure of the Presbyterian Church in Presbyterian Church in the United
States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) 393
U.S. 440
,
stating: "Petitioner, Presbyterian Church in the United States, is an
association of local Presbyterian churches governed by a hierarchical
structure of tribunals which consists of, in ascending order, (1) the Church
Session, composed of the elders of the local church; (2) the Presbytery,
composed of several churches in a geographical area; (3) the Synod, generally
composed of all Presbyteries within a State; and (4) the General Assembly, the
highest governing body."
As
PAUL ROLF JENSEN implicitly acknowledges, the General Assembly Permanent
Judicial Commission of the Presbyterian Church (U.S.A.) (California State
Court Complaint, page 3, line 8; lines 16-18) is a judicial body.
In fact, Plaintiff, a California licensed attorney, states that he “is
engaged in building his legal practice to represent parties in these
ecclesiastical courts.”
(Complaint, page 2, line 8-9)[4].
The United States Supreme Court agrees that the Presbyterian Church
(U.S.A.) has judicial bodies.
California Code of Civil Procedure §425.16
, the California Constitution, the California Codes,
and the California Code of Regulations do not define "judicial body."
The fact that the Presbyterian Church (U.S.A.) General Assembly
Permanent Judicial Commission is a judicial body within a religious
organization does not preclude THE REV. ABU-AKEL from the protection of
California’s anti-SLAPP Statute.
The United States Supreme Court has held that this is a ‘judicial body,’ see,
e.g., Presbyterian Church in the United States v. Mary Elizabeth Blue Hull
Memorial Presbyterian Church (1969) 393 U.S. 440
.
C.
THE REV. ABU-AKEL made the statement in connection with litigation
before the Presbyterian Church (U.S.A.) General Assembly Permanent Judicial
Commission. Therefore, California
Civil Code §47
(b) protects the statement by THE REV. ABU-AKEL.
Matters protected by California Civil Code §47
(b) are also protected by the anti-SLAPP Statute.
California Civil Code §47
(b)(2) defines a
privileged communication as a communication made in a “judicial proceeding.”
“[J]ust as communications preparatory to or in anticipation of the bringing of
an action or other official proceeding are within the protection of the
litigation privilege of Civil Code section 47, subdivision (b)
. . . such statements are equally entitled to the benefits of section
425.16" Dove Audio, Inc. v Rosenfeld, Meyer & Susman (1996) 47 Cal App
4th 777
,
citing Rubin v. Green (1993) 4 Cal. 4th 1187
, 1194-1195 and Ludwig v. Superior Court (1995) 37 Cal.
App. 4th 8
,
19; see also Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998)
65 Cal. App. 4th 713
,
728,” cited in Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106
.
On
January 21, 2003, PAUL ROLF JENSEN filed The Remedial Complaint with the
Permanent Judicial Commission of the Presbyterian Church (U.S.A.) General
Assembly (California State Court Complaint, page 2, line 10 to 19), THE REV.
ABU-AKEL Dec. ¶7.
THE REV. ABU-AKEL made his statement in response to the conspiracy allegations
in The Remedial Complaint, and the subsequent dismissal of The Remedial
Complaint by the Permanent Judicial Commission, ABU-AKEL Decl. ¶¶6, 7, 15, and
16.
In
Navellier
, the majority of the Court held that an action grounded on
purported wrongs by the defendant in an earlier lawsuit did "arise from" the
defendant's protected activity in connection with a judicial proceeding and
therefore was potentially subject to the anti-SLAPP statute.
Therefore, California Civil Code §47
(b)(2) also
protects THE REV. ABU-AKEL'S statement.
D.
The statement made by THE REV. ABU-AKEL was in furtherance of the
exercise of the constitutional right of free speech in connection with a
public issue [California Code of Civil Procedure 425.16
(b)(1)]
Can there be stronger indicia of a public issue or an issue of public interest
than “considerable press coverage” even in the “secular press” (Complaint,
page 2, line 25)? The coverage is
not just about of the ordination of gay and lesbian clergy.
There is extensive coverage about the constitutional litigation within
the Presbyterian Church (U.S.A.).
Moreover, THE REV. ABU-AKEL was exercising his free speech rights in
conjunction with his free exercise of religion.
As
discussed above, The Los Angeles Times reported on this issue on
Saturday, May 24, 2003. On
Sunday, May 25, 2003, The Washington [DC] Times reported, “The uproar
over such defiant churches grew so intense last year that supporters
circulated a petition calling for a special assembly to consider how to
enforce the ban. Although they
gathered enough signatures to force an assembly, they ultimately abandoned the
petition after 13 signers withdrew their names.”
“Presbyterians meet about Homosexuals,” The Washington Times,
May 25, 2003
,
Mulvihill Decl. ¶14.
On
Friday, May 23, 2003, The Kansas City [MO] Star reported, “Petitioners
won enough signatures to require the denomination's leaders to call a special
assembly on enforcing the gay clergy ban.
[¶] It would have been the
first such assembly in the denomination's history, but 13 signers withdrew
their names, leaving petitioners short of the minimum needed under church
law.” “Presbyterians May
Debate Gay Clergy Ban.” The
Kansas City Star, May 23, 2003
.
See, also, the same topic addressed in “Atlanta’s
Palestinian for Christ;” The Atlanta [GA] Journal Constitution May
16, 2003
;
“Church Mired Over Debate in Ordaining Gays, “ The Denver Post, May 18,
2003
;
“Presbyterians Again Take Up Gay Question,” The Los Angeles Times, May
24, 2003
;
“Presbyterian court upholds church official's decision to avoid showdown
over gay ministers,” The Charleston [WV] Daily
Mail
;
“Presbyterian court clears official in gay-ministry flap” The Beacon
[OH] Journal, March 19, 2003
, Mulvihill Decl.
¶¶ 14 – 19.
III.
PAUL ROLF JENSEN
HAS NO PROBABILITY OF SUCCEEDING ON HIS CALIFORNIA STATE COURT COMPLAINT
A.
The California State Court Complaint Arises from a Matter
Vested Exclusively in the Ecclesiastical Courts of The Presbyterian Church
(U.S.A.).
The following is a brief summary of the relevant facts giving rise to the
California State Court Complaint.
This summary is based on the pleadings including The Remedial Complaint and
the DECISION and ORDER of the Permanent Judicial Commission of the General
Assembly of The Presbyterian Church (U.S.A.) in the Session of Westminster
Presbyterian Church, Canton, Ohio v. Office of the Stated Clerk of the General
Assembly, Office of the Moderator of the General Assembly, et. al.,
THE
REV. ABU-AKEL Decl. ¶7.
In September 2002, Dr. Alex Metherell,[5]
a Commissioner to the 214th General Assembly, began circulating a
petition to the other approximately 600 General Assembly commissioners
nationwide requesting a special meeting of the General Assembly to
specifically address issues surrounding allegations of ordination and marriage
of gays and lesbians by ordained officers in the Presbyterian Church (U.S.A.)[6]
On January 14, 2003, Metherell handed the
Moderator, THE REV. ABU-AKEL, the Petition for a Special Assembly, allegedly
signed by 57 commissioners.[7]
Upon receipt, Moderator THE REV. ABU-AKEL asked the Stated Clerk to
confirm that the signatures were valid.
Moderator THE REV. ABU-AKEL also wrote a letter to the 57 signatories of the
Petition asking them to reconsider their petition.[8]
Immediately, several commissioners withdrew their names from the
petition. By the end of January
2003, the Moderator determined there were insufficient signatures and
announced to the Presbyterian Church (U.S.A.) that he was not calling a
special meeting of the 214th General Assembly.
The Session of the Westminster Presbyterian Church of Canton, Ohio, appealed
this decision in The Remedial Complaint.
The Permanent Judicial Commission of the General Assembly of the
Presbyterian Church (U.S.A.) held a trial on March 17, 2003 against the
Moderator THE REV. ABU-AKEL and the other named respondents, THE REV. ABU-AKEL
Decl. ¶14 THE REV. ABU-AKEL Decl. ¶15, 16.
On
April 4, 2003, Moderator THE REV. ABU-AKEL reported this decision to the
General Assembly Council. During
his report, Moderator THE REV. ABU-AKEL mentioned, in part, that he believed
that the allegations of the complaint against him, that he had inappropriately
refused to call the Special Session, were ‘lies’.[9]
This is the statement upon which PAUL ROLF JENSEN bases the instant
action for slander against Moderator THE REV. ABU-AKEL.
Immediately upon receiving service of this
California State Court Complaint, Moderator THE REV. ABU-AKEL[10]
filed a Request for Vindication
within
the church court system, THE REV. ABU-AKEL Decl. ¶20 – 22.
By this action, THE REV. ABU-AKEL has properly removed PAUL ROLF
JENSEN’S complaint back into the Presbyterian Church (U.S.A.)’s ecclesiastical
judicial system where, in fact, it belongs.
This matter should be resolved in its entirety within the confines of
the detailed judicial process of the Presbyterian Church (U.S.A.).
This Court should immediately dismiss PAUL ROLF JENSEN’S California
State Court Complaint for slander against THE REV. ABU-AKEL.
B. Plaintiff Cannot Establish Even a Possibility, Much Less a Probability, Of Prevailing on His California State Court Claim
Once a defendant has made a
prima facie showing that the lawsuit arises from petition or speech activity
covered by California Code of Civil Procedure § 425.16, as Moderator THE
REV. ABU-AKEL has here, the burden shifts to PAUL ROLF JENSEN to establish a
probability of prevailing on [his] claims, which must be done by competent and
admissible evidence, Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, 830;
Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 15-16, 21 fn.
16, 25.
C.
Moderator THE REV. ABU-AKEL’S Statement Was Not Slanderous
PAUL ROLF JENSEN alleges Moderator THE REV. ABU-AKEL slandered him when THE REV. ABU-AKEL stated on April 4, 2003 before the General Assembly Council of Presbyterian Church (U.S.A.), “When I read [in the complaint] that the Moderator, Stated Clerk and the staff had a conspiracy, I became strong in the Spirit because I realized that was a lie.” (PAUL ROLF JENSEN’S California State Court Complaint, page 3, lines 4-6). As shown above, this allegation arises solely from THE REV. ABU-AKEL’s speech, activity covered by California's anti-SLAPP statute. Thus, this is not an actionable statement.
D. Moderator THE REV. ABU-AKEL’S Statement is not Slander because it Does Not Contain Provably False Assertions of Fact.
To establish a cause of action
for slander, PAUL ROLF JENSEN must show that THE REV. ABU-AKEL’s statement
was:
"[A] false and unprivileged
publication, orally uttered ... which . . .tends directly to injure him in
respect to his office, profession, trade or business, either by imputing to
him general disqualification in those respects which the office or other
occupation peculiarly requires, or by imputing something with reference to his
office, profession, trade, or business that has a natural tendency to lessen
its profits…” (California
Civil Code § 46
.)
PAUL ROLF JENSEN cannot make
this showing. First, he was not
the entity whom THE REV. ABU-AKEL allegedly slandered when he made the
statement. PAUL ROLF JENSEN was
not a party to The Remedial Complaint; he was merely the counsel for
Westminster Presbyterian Church of Canton, Ohio (PAUL ROLF JENSEN’S Complaint
page 2, lines 4-14). Indeed, THE
REV. ABU-AKEL mentioned no person and no church body at all.
It is quite a reach for PAUL ROLF JENSEN to assume that anyone hearing
THE REV. ABU-AKEL’s statement would even wonder about the identity of one of
the lawyers involved.
Furthermore, truth is an
absolute defense against civil liability for defamation Hejmadi v. AMFAC,
Inc. (1988) 202 Cal.App.3d 525, 552-553.
A plaintiff must show that the defendant's statements contained or
implied a "provably false factual assertion.”
Moyer v. Amador Valley Joint Union High School District (1990)
225 Cal.App.3d 720, 724-725.
In
making the distinction [between fact and opinion], the courts have regarded as
opinion any "broad, unfocused and wholly subjective comment," such as that the
plaintiff was a "shady practitioner," "crook," or "crooked politician.”
Similarly, in Moyer
,
the court found no cause of action for statements in a high school newspaper
that the plaintiff was "the worst teacher at FHS" and "a babbler."
The former was clearly "an expression of subjective judgment.”
And the epithet "babbler" could be reasonably understood only "as a
form of exaggerated expression conveying the student-speaker's disapproval of
plaintiff's teaching or speaking style."
Copp v. Paxton (1996) 45 Cal.App.4th 829
, 837-838 [citations omitted]; see also Morningstar, Inc. v.
Superior Court (1994) 23 Cal.App.4th 676
,
691, n.5 [citing cases holding that "playing hide and seek" with township
funds, "fellow traveler of fascism," "sleazy sleight of hand," "unbelievably
unscrupulous character," and "sleazebag" are nonlibelous because phrased in
vituperative terms or because language used in "loose or figurative" sense].
If
the coarse, shocking statements described above are not slanderous, THE REV.
ABU-AKEL’s mild comment about the allegations in The Remedial Complaint
certainly is not slander.
In addition, the context of
the statement is important for determining whether it is defamatory, in light
of the "totality of circumstances” Moyer
, supra,
at pp. 724-725. Here, the tone
and context of Moderator THE REV. ABU-AKEL’s religious report to the
Presbyterian Church (U.S.A.) General Assembly Council shows only his
reflections on his faith and his relief at the dismissal of The Remedial
Complaint. THE REV. ABU-AKEL’s
tone is full of the language of his Christian and Presbyterian faith (REV. DR.
ABU-AKEL Decl. ¶6). There is no
malice or anger.
Further, the statement is not
actionable because it does not contain provably false assertions of fact.
No reasonable listener would understand that THE REV. ABU-AKEL was
claiming the counsel for a party, who presumably drafted that complaint,
deliberately lied or prepared a false complaint.
THE REV. ABU-AKEL used the word “lies” in belief – and relief - that
the dismissal of The Remedial Complaint meant that The Remedial Complaint did
not have had merit.[11].
The context also shows the Moderator referring to the media generally
and how its work sometimes obscures the truth.
E.
The Statement is Protected Because PAUL ROLF JENSEN
is a “Public Figure”
Under the First Amendment,
defendants sued by public figures for defamation have special protections, for
two reasons:
"First, ...public figures are generally less vulnerable to injury from
defamation because of their ability to resort to effective "self-help.”
Such persons ordinarily enjoy considerably greater access than private
individuals to the media and other channels of communication.
This access in turn enables them to counter criticism and to expose the
fallacies of defamatory statements.
Second, and more significantly, ... public figures are less deserving
of protection than private persons because public figures, like public
officials, have voluntarily exposed themselves to increased risk of injury
from defamatory falsehood concerning them" Readers Digest Association v.
Superior Court (1984) 37 Cal.3d 244, 253
,
citing and quoting Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323
, 344-345
[internal citations omitted.)
In his California State Court
Complaint, PAUL ROLF JENSEN asserts that anyone merely reading an Internet
article or press report, would identify him as the intended target of the
statement (California State Court Complaint, page 3 lines 7 - 15).
Assuming, arguendo, that PAUL ROLF JENSEN’S assumption is true,
he is, by his own admission in his Verified California State Court Complaint,
at the very least, a "limited purpose" public figure[12]
with respect to the issue in this lawsuit in that he has been litigating these
issues in church courts all over the country.
PAUL ROLF JENSEN aggressively
pursues publicity for himself and his views, actively thrusting himself to the
forefront of the controversy over the ordination of gays within the
Presbyterian Church (U.S.A.).
See, e.g., “Weblog: The
Gathering Presbyterian Storm – Lawsuits, gay marriages precede Presbyterian
meeting,” Christianity Today, May 22, 2003
; “Same chapter, different verse – Jensen takes a new tack,
basing heresy charge on doctrinal grounds,” PCUSA News, May 20, 2003
; “Jensen Continues
Complaints,” Witherspoon on the Web, last updated December 2, 2002
“Jensen Charges,” Witherspoon
on the Web, last updated December March 28, 2002
; and more than 20 other
articles at Witherspoon on the Web,
www.witherspoonsociety.org.
.
The Layman
Online
at
www.layman.org lists 76 articles mentioning PAUL ROLF JENSEN; the independent
Presbyterian website
www.presbyweb.com
has
posted 127 articles mentioning him, Mulvihill Decl. ¶21 - 27.
PAUL ROLF JENSEN was even prominently mentioned in a June 28, 2002,
lengthy article “Presbyterian Pastors Sued Over Church’s Rule on Gays,”
The New York Times, June 28, 2002
, Mulvihill Decl. ¶28.
PAUL ROLF JENSEN is a very public figure on this issue.
As one who "voluntarily
injects himself or is drawn into a particular public controversy and thereby
becomes a public figure for a limited range of issues"
Gertz
, supra,
at 351, PAUL ROLF JENSEN’S protections are limited.
F.
Moderator THE REV. ABU-AKEL's Statement Was Not Made with "Actual
Malice."
Under the First Amendment, public figures, in order to recover in a defamation action, must show by clear and convincing evidence that the defendant's statements were made with "actual malice," i.e., with knowledge that they were false or with reckless disregard of whether or not they were false. Readers Digest , supra, 37 Cal.3d at p. 256. To do this, a plaintiff must show "that the defendant in fact entertained serious doubts as to the truth of his publication.” (Ibid.) "[W]hether any misconduct [by plaintiffs] occurred is irrelevant to the resolution of the issue of [defendants'] subjective state of mind. Instead, it is [defendants'] subjective attitude toward the information they discovered which properly bears on the issue of actual malice.” McCoy v. Hearst Corp. (1986) 42 Cal.3d 835