Following the lead of defamation: a definitional balancing approach to religious torts.

• Author: Wiesen, Daryl L.

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.

1. 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. This discretion may lead juries to hold unpopular defendants liable, which in turn may chill constitutionally protected behavior. Second, in free exercise cases, courts employ an ad hoc balancing analysis to determine whether a government action impermissibly burdens a person's free exercise of religion. These two elements combine to produce inconsistent results in religious tort cases. These ad hoc results can themselves lead to a chilling effect; religious actors may not practice or preach their religion for fear of being held liable in court. This part addresses each of these topics in turn.

   1. The General Tort

      Although the original Restatement of Torts did not include the tort of intentional infliction of emotional distress, the authors of the Restatement (Second) decided that the tort had been accepted in enough jurisdictions to warrant inclusion.(8) The general tort is outlined in section 46 of the Restatement (Second):

      One who by extreme and outrageous conduct intentionally or

      recklessly causes severe emotional distress to another is subject to

      liability for such emotional distress, and if bodily harm to the other

      results from it, for such bodily harm.(9)

      The tort thus contains three main elements: (1) "extreme and outrageous conduct that (2) intentionally or recklessly causes (3) severe emotional distress.

      The tort is far from well-defined. The commentary in the Restatement (Second) explains:

      Liability has been found only where the conduct has been so

      outrageous in character, and so extreme in degree, as to go beyond all

      possible bounds of decency, and to be regarded as atrocious, and

      utterly intolerable in a civilized community. Generally, the case is one

      in which the recitation of the facts to an average member of the

      community would arouse his resentment against the actor, and lead

      him to exclaim, "Outrageous!"(10)

      Although courts have not provided much guidance in defining the outrageousness element, in practice it tends to be the only question asked: If the plaintiff proves "extreme and outrageous" conduct, then intentionality (or recklessness) and severe emotional distress quickly follow. The Restatement (Second) even acknowledges and seems to condone this collapsing of elements.(11)

      Moreover, the outrageousness element affects the interpretation of intentionality or recklessness. According to the Restatement (Second), a defendant must "intentionally or recklessly cause[] severe emotional distress." Courts, however, apply the question of intentionality to the extreme and outrageous conduct instead of to the injury. In other words, they ask whether the defendant intentionally acted outrageously instead of asking whether the defendant intentionally injured the plaintiff.(12) By applying the intentionality or recklessness standard to the outrageousness element, courts allow a plaintiff to prove all elements of the tort simply by proving that the defendant knowingly acted outrageously.

      Courts' focus on outrageousness grants juries significant discretion regarding liability and damages. Like the question of reasonableness posed in negligence actions, outrageousness, as it is defined, is inherently a jury question--whether a reasonable member of the community would proclaim, "Outrageous!" Thus, questions of liability turn on jurors' notions of outrageousness. This jury discretion also leads to damages being open-ended.(13) Moreover, due to the difficulty of determining "actual injury" in intentional infliction of emotional distress cases, damages that are compensatory in name tend to be punitive in nature.(14)

      Separate from compensatory relief, the availability of actual punitive damages in intentional infliction of emotional distress cases compounds the problem of unlimited liability. Because the tort requires a showing of intentionality or recklessness, simply proving the elements of the tort often will allow a plaintiff to recover punitive damages.(15) By allowing punitive damages, courts create virtually no limit on the liability that could accrue to a defendant. All these factors have led one commentator to conclude that, "In sum, we have a doctrine that defies consistent definition, and presents all the problems inherent in that lack of definition compounded by a prominent punitive component."(16)

      The open-endedness of both the tort and the damages creates a risk of inconsistent, or even arbitrary, application of the tort to different circumstances. "The concept [of outrageousness] ... fails to provide clear guidance either to those whose conduct it purports to regulate, or to those who must evaluate that conduct."(17) More importantly, the tort may be applied in an especially harsh way to unpopular views and defendants. "[F]actfinders may confuse outrageous with unpopular so that fear of tort judgments might chill constitutionally protected (or at least socially important) behavior."(18)

   2. Free Exercise of Religion

      The current test for whether a state action impermissibly burdens the free exercise of religion is an ad hoc balancing test involving a compelling state interest standard.(19) This section summarizes the compelling state interest test used in free exercise cases and describes how this ad hoc balancing analysis, announced and then abandoned by the Supreme Court, has ultimately been restored by Congress. Together with the previous section, this section outlines the legal framework currently applied to religious tort cases.

      Supreme Court doctrine on the Free Exercise Clause has taken some interesting twists and turns in the last five years. Before 1990, Sherbert v. Verner(20) defined the form of analysis applicable to free exercise claims. Sherbert set forth an ad hoc balancing test, asking three questions: (1) Is the conduct based on sincere religious beliefs?(21) (2) Does the regulation impose a substantial burden on free exercise?(22) (3) If so, does a compelling state interest justify the infringement?(23) In Sherbert, the...