Hamilton Hammers 'Hovas

Over at Findlaw, Marci Hamilton takes issue with some recent legal actions by the Jehovah's Witnesses. After noting that the 'Hovas have a long proud history when it comes to ensuring the protections of the First Amendment, Hamilton claims that they have "taken the position that speech, including speech by the press, should be punished and suppressed." In other words, the 'Hovas are hypocrites.

As evidence, Hamilton cites a slander/libel lawsuit by the 'Hovas against a Danish newspaper following a series of articles detailing sexual abuse by church members and a subsequent cover up. The case was thrown out and the 'Hovas ordered to pay the paper's legal fees. In addition, in California legal proceedings dealing with abuse allegations, the church has unsuccessfully clergy-penitent privilege to cover discussions within the church about the abuse. Both of these, Hamilton argues, shows that the 'Hovas are only interested in free speech when it suits them.

I don't think Hamilton is being quite fair to the church. For one, the Danish lawsuit could not have suppressed anything - the articles were written and published prior to any lawsuit. For another, the point of the suit was that, in the 'Hovas' eyes, the allegations in the newspaper articles were false. Instigating a suit against a media outlet for lying about your organization is hardly an abandonment of First Amendment values (libel and slander not being protected by the First Amendment anyway). The key, I think, is what it means that attorney fees were assessed against the 'Hovas. In the United States, that would be an indication that the suit was frivolous. However, if Denmark has some version of loser pays, the fact that one side paid the other's costs doesn't mean much. As for the California case - unless the evidentiary claim they put forth was frivolous, it's not hypocritical to advance legal defenses available to them in civil litigation.

In any event, the reason the 'Hovas have played such a role in the development of the First Amendment is that they have had to secure their own First Amendment rights over and over again. For all the good they've done for the rest of us, their motivations for bringing those actions were selfish and a means to protect their own rights. The actions mentioned by Hamilton seem to fall into the same category to me.