Christianity Today recently reported that Harvest Bible Chapel—a 13,000-member megachurch based in Rolling Meadows—is suing a pair of bloggers (and their non-blogging wives) for defamation, along with a reporter who was working on a story about HBC. The bloggers used to run The Elephant’s Debt, a watchdog site dedicated to exposing alleged financial mismanagement and leadership dysfunction at HBC.
I say “used to” because the blog went inactive after December 5th, 2017, and has since only posted brief updates on the lawsuit (this will become relevant in a minute).
I have no firsthand knowledge of Harvest Bible Chapel. I have never visited them (despite living next door in Palatine for three years) or blogged about them, and I was not aware of The Elephant’s Debt prior to today. I’m commenting on this because, earlier this year, I found myself in a nearly identical situation as the TED bloggers. I was sued pro se by Arlington Heights business owners concerning posts I had made on a consumer watch dog blog. In their complaint, the business owners alleged that that I was guilty of both defamation and false light, just as HBC now alleges of TED.
In another striking similarity to HBC v. TED, the blog I had created had been mostly inactive for over a year prior to the suit. I had posted frequently between May and November 6th, 2016, then pretty much stopped posting. The plaintiffs had printed out most of my blog in mid-September, 2016, and then, as far as I could tell, never revisited the blog. They sent me a cease-and-desist letter in late October 2017. I promptly removed the entire blog per their request, but they sued me anyways in mid-December 2017, citing only posts that were published in 2016.
Their case was dismissed with prejudice in March 2018. I cannot comment on HBC’s deceptive trade practices claims against reporter Julie Roys, but having read the complaint (h/t Wondering Eagle), and having recently defeated a very similar lawsuit against me filed in the same state and same county, I will comment on the lawsuit against TED. Please know that I am not an attorney and this post does not constitute legal advice.
Illinois Has a 1-Year Statute of Limitations on Defamation and False Light Claims
In Illinois, you cannot sue for defamatory statements made over a year ago. (When I say “cannot sue,” I mean “your lawsuit will not be successful.”) The HBC lawsuit was filed 10-17-18, so all of the blog posts and comments made on 10-16-17 and before that are no longer actionable, and all of HBC’s counts of defamation and false light stemming from comments that were published on 10-16-17 and before that are likely to be dismissed under the Illinois Statute of Limitations. That’s most of the blog. HBC’s complaint seems at least nominally aware of this, because it tries to insist that certain statements are being “continually republished”—more on why that won’t toll the statute of limitations in a minute.
This means that only the three TED blog posts from 10-24-17, 11-17-17, 12-5-17 are potentially actionable, and HBC must limit its claims to content from those three posts. The suit does mention the 10-24-17 post (though, if Dave Wisen authored a letter that was “inaccurate, factually false and financially damaging,” one wonders why he isn’t a co-defendant in the suit).
There is something called “the discovery rule” that can toll the statute of limitations, but that only applies to defamatory statements that were discovered after the statements had been made. These were posts on a public blog that was freely available to the general public, and HBC leadership knew about and had access to the posts, even if only in their roles as members of the general public. They will not be able to use the discovery rule to toll the SoL on earlier blog posts.
Illinois Adheres to the Single-Publication Rule for SoL Purposes
This means that a claim for defamation becomes ripe at first publication, and continued publication or republication does not toll nor reset the statute of limitations. So the SoL on a defamatory news item does not reset every time a link is shared, and a defamatory Yelp review posted in 2012 is not still actionable just because it remains up. Claiming that certain statements on TED are “continually republished” is not going to toll the SoL in Illinois.
Does the single-publication rule apply to blog posts? It did in my case. And I invite the TED defendants to look up and cite my case (2017-L-063137) as precedent if they wish.
Can a third party be sued for re-publishing a defamatory statement that is itself past the SoL? That’s debatable, but that isn’t what the TED defendants are accused of.
Can TED Be Held Responsible for Defamatory Comments on Their Blog by Others?
The answer is, “Possibly.” This never formally came up in the lawsuit against me, but while preparing my defense, my attorney expressed concern about a blog comment that was made in February 2017, potentially within the statute of limitations. I of course said, “That wasn’t me!” And he said it did not matter, I had allowed the comment and could be held responsible.
The defense to this would be to argue that a blogger is a neutral third party provider of content, but it isn’t clear yet that Section 230 of the Communications Decency Act applies to individual bloggers. Furthermore, the lawsuit alleges that the TED bloggers would not allow comments defending HBC. If true, that will make their defense tougher on this point.
On an international level, I have seen two defamation cases where defendants were held responsible for comments made by others. In one, the defendants were held responsible because one of them had “liked” a defamatory Yelp review. In the other, a woman had effectively accused her neighbor of pedophilia on Facebook, and had allowed comments from others on her page to that effect (granted, this woman did not defend herself in court and had a default judgment issued against her, so we’ll never know whether an attorney could have defended her on that point).
The HBC lawsuit does attempt to hold TED responsible for a few third-party comments, so if the case is not settled or dismissed for SoL reasons, it will be interesting to see how this turns out.
How Much Does It Cost to Defend Yourself from Defamation?
The answer is, “A LOT.” The lawsuit against me was served on January 5th, dismissed with prejudice on March 23rd (which is really fast in a Cook County Court), and cost an astounding $13K. It probably would have only cost $6K to file the motion to dismiss for SoL, but the plaintiffs filed a new motion attempting to sue my attorney (I am not making that up!), and responding to that just about doubled my costs. Another friend of mine was sued for defamation by an indigent, pro se plaintiff in another state, and it cost $20K just to get that suit dismissed.
And just so you know: it’s a television myth that the losing party pays the other side’s attorney’s fees. That rarely happens. (In my friend’s case, it did happen, but since the plaintiff is indigent and has no assets to take or income that can be garnished, my friend will probably never see a dime of his money back.)
Which is to say that TED probably doesn’t have much chance of getting HBC to pay their attorney’s fees if they successfully defend themselves.
Remember that I’m only talking about lawsuits which were successfully thrown out in the early phases. The lawsuit against me easily could have cost six figures if I’d had to go through discovery and trial.
I strongly urge any journalist, writer or blogger who is serious about their craft to purchase an umbrella insurance policy with defamation coverage. An extra $20 a month in your budget could save you thousands and thousands of dollars in legal fees. You may be sitting there thinking, “But everything I write is true!,” but trust me, truth is extraordinarily expensive to prove in court.
Is Defamation Debt Dischargeable in Bankruptcy?
NO. Defamation is an injurious tort. Injurious torts are usually not dischargeable in bankruptcy. And this was probably what scared me the most about the lawsuit against me: that, in the extremely small chance that I lost, I could have this huge cloud of debt hanging over my head for the rest of my life.
Can You Sue Someone’s Spouse for Defamation?
Doubtful. The complaint never gives any specifics on the inclusion of the bloggers’ wives in the lawsuit, other than noting that each blogger’s wife “provides material support to the ED website, including but not limited to providing funds for computer(s) that are used to create, edit, host and maintain the ED website, and providing funds for internet access for the ED site.” How does HBC know that it’s the wives who support the site? Are the men stay-at-home dads? Do only the women have income from work? And if the men had created and posted their site from the Rolling Meadows Public Library, would HBC be suing RMPL for providing computers and Internet access?
Furthermore, HBC is a complementarian church. Aren’t complementarian wives supposed to submit to their husbands? What does HBC think these women should have done had they disagreed with their husbands’ blogging agendas? More on that angle from The Wartburg Watch.
I believe most of the lawsuit against TED is past the statute of limitations, but cannot otherwise comment on its merits. The hundreds of blog comments that the site received within the SoL period may be more difficult to defend on. As someone with a general dislike for churches behaving litigiously, I wish the TED bloggers luck.