Interesting 1A case

From an article in the Dallas Morning News, October 15, 2009, a lawyer in a test of First Amendment protections for free speech, is challenging a Dallas-based organization that endorses military chaplains, alleging that the leaders of the organization have used prayer to incite violence against him and his family.

The lawyer, Michael Weinstein, is a veteran of the Reagan Administration and once worked as general counsel for Ross Perot. In the suit, Weinstein v. Ammerman, et al, Mr. Weinstein alleges that respondent Gordon Klingenschmitt, acting on behalf of The Chaplaincy of Full Gospel Churches and its founder, Elmer Harmon "Jim" Ammerman, issued a "fatwah" against Weinstein in April.

The Weinsteins are alleging that retaliatory actions against them started at some point in the past, then increased in 2005 after Weinstein founded the non-profit Military Religious Freedom Foundation (MRFF), and began questioning the Chaplaincy's right to be an official endorser, or approver, of chaplains.

In the petition, filed Sept. 23 in Dallas' 68th District Court, Weinstein alleges, "… Klingenschmitt called upon his followers to commit violence against, or even kill, Michael Weinstein, and even his family." Weinstein's wife Bonnie joined her husband in filing the suit.

Dallas attorney Randal Mathis, who represents the couple, says the Weinsteins' suit tests whether threats made in prayer are constitutionally protected. "Of course, we think the answer to that is 'no,' " says Mathis. "We think these things called prayers cause violence." Mathis says people have fired shots at the Weinsteins' home in Albuquerque, N.M., set fire to their lawn and left animal carcasses on their porch.

The Weinsteins, who are Jewish, allege in their petition that the MRFF is devoted to protecting and preserving constitutional religious freedom for American military personnel. According to the petition, the majority of the MRFF's work deals with the problems of individual members of the armed forces and their families who have been discriminated against in the military.

Klingenschmitt, who served as a U.S. Navy chaplain from 2002 until 2007, says, "My prayers never use the words 'death' or 'violence.' Those are his [Michael Weinstein's] embellishments of my words. My words were simply to quote Psalm 109 verbatim." Klingenschmitt says specifically he quoted from the psalm: "Let his days be few" and "Let his posterity be cut off."

"My prayer to God is a prayer to God -- nothing more," says Klingenschmitt, who declined further comment and refers other questions to Austin, Texas attorney, Stephen Casey. When questioned, Casey said, "I'm very, very certain the courts are going to recognize the protected nature of Mr. Klingenschmitt's speech."

The Chaplaincy refused a request for an official statement, stating that "Rev. Dr. Jim Ammerman and CFCG, upon advice of counsel, cannot comment on specific allegations raised in the suit against him filed by Mr. Michael Weinstein. Dr. Ammerman believes the allegations are unfounded."

John Whitehead, president and founder of The Rutherford Institute, says his Virginia-based civil liberties organization is representing The Chaplaincy and Ammerman but plans to use Texas lawyers for the case. Whitehead says Weinstein involves an important free-speech issue. "If you can stop people quoting Bible verses, you're going to shut down half the churches, synagogues and mosques in this country," Whitehead says.

Whitehead also says, "When Martin Luther King spoke, violence erupted in many places. He wasn't inciting violence. Free speech is the last bastion we have in this country. You can't shut down speech based on speculation."

Mathis says the Weinsteins filed their suit in state court because, "I think we'll have a quicker route to discovery," but adds that his goal is to take the case to SCOTUS. He wants to find out whether a person enjoys 1A protection when cloaking threats in prayer.

This will be a tough one to win. As Doug Laycock, a religious liberty scholar and former professor at the University of Texas School of Law says, "If the claim is they [the defendants] are praying for God to punish these people, that's not a cause of action. They can pray for whatever they want." Laycock says a court is going to be skeptical that someone will act on a prayer. "I think it's going to be hard to prove," he says.

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