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2. Litigation

The second half of the Twentieth Century has experienced a significant growth in the social welfare state. Social movements and lobbying have identified ever expanding domains where the benevolent social welfare state "ought" to protect or serve its citizens. Litigation has increasingly become the instrument whereby individuals and organizations press their claims for access to resources. Religious organizations generally, and religious broadcasters in particular, have not escaped this trend. Over the past decade-and-a-half, major ministries have devoted increasing resources to legal matters. Some of the increased legal work reflects a need among religious broadcasters for legal counsel in contractual matters as well as in matters respecting regulatory compliance. But religious broadcasters have been increasingly involved in litigation, both as defendants and as plaintiffs. Legal proceedings involving religious broadcasters have occurred on a wide range of issues. I can here offer only illustrations.

One of the major struggles religious broadcasters have faced is the issue of their tax-exempt status. In 1983 the State Board of Equalization of California revoked the tax-exempt status of Robert Schuller's Crystal Cathedral in response to the use of the cathedral for admission charging events. The Board of Equalization subsequently agreed to a compromise in which taxes would be paid on part of the Crystal Cathedral's "facilities used for such non-exempt commercial purposes as concerts

and community group meetings." [47] A ministry spokesperson characterized the taxation issue as "the beginning of a new kind of harassment [of] religious institutions." [48]

Religious broadcasters as defendants: California was also the scene of Swaggart v. Board of Equalization [49] which has not received great attention, but which nonetheless has had tax exemption implications for religious broadcasters specifically and for religious institutions more generally. This case involved the authority of the state of California to collect taxes on various items, including religious records, tapes, and books sold by the Swaggart ministry to Californians. The Supreme Court upheld a decision by the California appeals court permitting the state to tax items sold by the Swaggart ministry. The decision leaves open the question of whether any religious organization has a constitutional right to tax exemption.

Religion-based tax exemption challenges have also been brought against the ministries of television preachers by individuals. In Virginia, two Lynchburg residents appealed a Circuit Court ruling granting Jerry Falwell's Liberty University the right to issue $61 million in tax-free government bonds on the grounds that this violated the Separation Clause. [50] Ultimately, the Virginia Supreme Court blocked the issuance of the tax-free bonds. Falwell, electing not to appeal to the Supreme Court, turned to Kemper Securities for assistance with a private bond sale. Kemper, finding no market interest in the bonds, withdrew from the underwriting agreement. Falwell, in turn, sued Kemper for default. [51] The parties agreed to submit the dispute to arbitration. Arbitrators subsequently found the case "without merit." [52]

Religious broadcasters as plaintiffs: Jerry Falwell sued Hustler magazine for "intentional infliction of emotional distress" resulting from a satirical parody. [53] In anticipation of his bid for the Republican nomination for the presidency in 1988,

Pat Robertson sued former California Congressman Paul "Pete" McCloskey and Indiana Congressman Andrew Jacobs for making statements about his Korean War military record that were alleged to be "wanton and reckless." [54] Neither Falwell nor Robertson's suits were ultimately successful, but they illustrate a perceived need to protect the good name and reputation of religious broadcasters. Interestingly, both Falwell and Robertson publicly interpreted the litigation outcome as vindicating their positions.

Apart from the need to litigate, legal departments have become a part of virtually every television ministry for other reasons. They seek to develop endowments and trust funds for long term support of their ministries. In addition to developing trusts and endowments, the legal departments of television ministries, more often than other nonprofit organizations, face challenges to wills by heirs of those who have made significant bequests.

More recently, radio and television ministries have found themselves embroiled in controversy and litigation with former employees. In the wake of the PTL scandals, CBN placed The 700 Club co-host Danuta Soderman on "temporary leave of absence" after the publication of her autobiography that included a discussion of a love affair outside of marriage. CBN, sensing that this could be grist for media that was on a feeding frenzy with the PTL scandal, concluded that they could not risk having Soderman, who had been called the, "Barbara Walters of Christian television," on the air. Ms. Soderman quietly disappeared from the scene. [55]

Religious broadcasters also need good legal counsel to keep abreast of developments in constitutional law affect free exercise. Take for example, Employment Division v. Smith [56] a Supreme Court case potentially with significant implications for the regulation of religious broadcasting. If Smith effectively establishes the precedent that religious organizations are entitled to no substantive protection under the Free Exercise Clause of the First Amendment, then religious broadcasters--along with other religious organizations--stand to be entangled in a much broader web of government regulation.

Or, take the recent passage of the Religious Freedom Restoration Act [57] (RFRA), an act intended to lessen, if not altogether to defeat, the impact of Smith. Will RFRA substantially alter the fact that religious broadcasters have become deeply and increasingly involved in all kinds of litigation? Probably not. But, as a general proposition, we can postulate that religious broadcasters can expect to continue to spend precious resources on legal matters. It follows that, whereas larger ministries can more easily allocate resources to deal with legal costs, small ministries can be easily overwhelmed by such costs.

In the years since the PTL scandal, other religious broadcast employees have declined passively to accept what they perceive to be mistreatment by their employers. James Dobson's radio program Focus on the Family is broadcast daily on 1,350 outlets, second only to Paul Harvey. When co-host Gil Moegerle's marriage ended in divorce in 1987, Dobson reassigned Moegerle to the film department. Some months later, Moegerle married an employee of the ministry. Subsequently, both resigned claiming they were forced out. Moegerle sued claiming, among other things, "invasion of privacy, interference with business activities, and wrongful termination." [58] More recently, Bob Larson Ministries, which broadcasts a radio and television talk-show, has been a hotbed of employee grievances, including wrongful dismissal, sexual harassment, nonpayment of accrued overtime, and the like. [59] The day of religious broadcast employees passively accepting managerial decisions that affect their lives appears now to be a thing of the past.

This discussion of the impact of technology and the increasing propensity for problems to be resolved by litigation draws attention to the fact that the religious broadcasting industry no longer lives in a world apart. They have entered the mainstream of society. They have utilized technology to great advantage, even as technology has shaped the character of their ministry. An increasingly litigious society is similarly impacting religious broadcasting in ways that are only now beginning to be understood.