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Free Speech

Church's Standard Commercial Lease Forbids "Offensive" "Activity"; Does That Cover Offensive Sermons

when the sermons lead to protests? That question is pending in Texas court.


From Stedfast Baptist Church v. Fellowship of the Sword, Inc., decided yesterday by the Texas Court of Appeals, in an opinion by Justice Wade Birdwell, joined by Justices Dana Womack and Mike Wallach:

Seeking declaratory relief construing the default provisions of a commercial lease to exclude constitutionally protected religious speech, as well as an award of damages for breach of the lease by wrongful eviction, Stedfast Baptist Church sued Fellowship of the Sword, Inc., a Texas non-profit corporation operating as a Christian ministry in district court….

In July of 2020, Stedfast, … executed a 63-month commercial lease with Fellowship, as one of several tenants in a multi-tenant commercial property on West Bedford–Euless Road in Hurst, Texas. The lease itself consisted of standard forms promulgated by the Texas Association of Realtors, Inc. and expressly acknowledged the leased premises would be used for religious purposes as a church, with contemplated hours of operation from 6:00 a.m. through 10:00 p.m., Sunday through Saturday. Beginning August 1, 2020, the term of the lease ended on October 31, 2025….

Crucial to the dispute that eventually arose, Section 10(A) of the lease expressly prohibited the following activities on any part of the leased premises or the multi-tenant property generally:

A. Tenant may not use or permit any part of the leased premises or the Property to be used for:

(1) any activity which is a nuisance or is offensive, noisy, or dangerous;

(2) any activity that interferes with any other tenant's normal business operations or [Fellowship's] management of the Property; …

(4) any hazardous activity that would require any insurance premium on the Property or leased premises to increase or that would void any such insurance; ….

As alleged by Fellowship, the dispute over the lease arose because [Stedfast pastor Jonathan] Shelley posted sermons online that Fellowship viewed as having advocated for violence against and celebrated the deaths of members of the gay community.

{Fellowship specifically alleged that mere days after a truck had accidentally driven through a gay pride parade in southern Florida and killed one person, Shelley made the following statements during one of his sermons, employing a pejorative term for members of the gay community [expurgations in the court's opinion -EV]:

It's great when trucks accidentally go through those parades. I think only one person died so hopefully we can hope for more in the future. You say, "[W]ell that's mean." Yeah, but the Bible says they're worthy of death. You say, "[A]re you [sad] when f*gs … die?" No, I think it's great. I hope they all die. I would love it if every f*g … would die right now. And you say, "[W]ell I don't think that's what you really mean." That's exactly what I mean. I really mean it.

Shelley also allegedly urged that to save America, members of the gay community should be shot and killed:

I mean 95% of America thinks that the most disgusting thing imaginable is being a f*gg*t …. Because it is. I don't even have to convince people. And then you have to think about it – why in the world would every single company and our government and the media and just all the social media be constantly saying like let's support the most gross and disgusting thing ever[.] Because f*gs … are in control of the media, because f*gs … are in control of the government, because f*gs … are in control of these businesses because they love money, they love power, they love influence, and they're a bully. And you know what, they're bullying all these companies and they're bullying our country and they're bullying our leaders and they're doing what? They're doing their bidding for them. And you know the right thing to do to a bully is to put a bullet in his head. It's not to back down, it's not to apologize, it's to put a bullet in his head. And you want to save America? Start there.

We do not quote any of this language gratuitously, but simply to demonstrate the potential constitutional gravity of the issues presented by this dispute that may eventually require adjudication. See Snyder v. Phelps (2011) (holding that the First Amendment shielded members of the Westboro Baptist Church in Topeka, Kansas, from tort liability to a grieving military family for publicly expressing their view that the United States is overly tolerant of the gay community, and particularly of gay service members, and that God kills American soldiers as punishment, through picketing the funeral services of the family's departed loved one in Maryland employing similarly pejorative language). Although Snyder may ultimately inform a decision on the merits of this dispute, the language allegedly employed in Shelley's sermons implicates the jurisdictional question before us only to the extent we consider below whether, as urged by Fellowship, the forcible detainer proceeding in justice court finally adjudicated Stedfast's First Amendment defense to eviction from the leased premises.}

In response to the sermons Shelley posted on social media, in June 2021, protesters appeared across from the leased premises. Not long after the protests started, on July 1, 2021, Fellowship sent Stedfast a "Notice of Default of Commercial Lease" addressed to Shelley, stating:

You have violated certain terms of the Lease and accordingly, this is your notice of default.

It has come to [Fellowship's] attention that as the pastor and President of [Stedfast], your words and behavior have incited violence against certain members of our society, and that those publicized, inciteful words and behavior have caused violent protests to occur on the Property, endangering both the Property and the other tenants. Accordingly, you have violated Section 10.A of the Lease:

  1. Your violent, inciting words and behavior, stated while speaking to the Stedfast Baptist Church congregation and then later posted for the general public to witness on YouTube, are a nuisance, offensive and dangerous to the other tenants and to the public at large;
  2. Your actions have endangered other tenants and caused interference with their normal business operations, prohibiting them from the quiet enjoyment of their own suites; and
  3. You have invited hazardous activity onto the Property that would be a detriment to [Fellowship's] insurance policy and continued hazardous activity would cause such policy to either increase in price or be terminated….

The court, however, didn't reach the question whether Stedfast's actions indeed breached the contract; rather, it held only that the district court shouldn't have rejected Stedfast's claims on procedural grounds:

Stedfast filed a lawsuit in district court seeking a declaratory judgment that it had not breached the lease and injunctive relief prohibiting Fellowship from evicting it from the leased premises. Stedfast also sought "monetary relief of $250,000.00 or less" for breach of lease. Fellowship filed a general denial on September 13, 2021. On October 5, 2021, Stedfast filed its first amended petition in which it continued to seek declaratory relief, injunctive relief, and "monetary relief of $250,000.00 or less" for breach of lease….

In contrast, Fellowship filed a petition for forcible detainer in justice court, asserting a superior right of possession in the leased premises and seeking Stedfast's eviction therefrom. After a jury trial, the justice court rendered a judgment on October 22, 2021, awarding Fellowship possession of the leased premises. Stedfast did not appeal the judgment to the county court at law….

{Without addressing the merits of Stedfast's claims for declaratory relief and breach of lease, we hold that the district court had subject matter jurisdiction over them; thus, the district court erred by dismissing those claims with prejudice. We further hold that the justice court proceedings triggered neither collateral estoppel nor res judicata principles that defeated Stedfast's district court claims, so to the extent that the district court assumed jurisdiction and disposed of Stedfast's claims with prejudice because they had previously been litigated in the justice court, the district court also erred.}

A justice court is not a court of record. As explained by our sister court in Waco [in 1937]:

Due to the fact that justice courts are often presided over by laymen who are not supposed to be skilled in the technicalities of the science of the practice of law nor well informed in the forms of judicial proceedings as observed in courts of records, great liberality and indulgence are extended to the proceedings in such courts. It is said that if their proceedings are intelligible and attain the ends of substantial justice, they are generally sustained. The test of the validity of the judgments of such courts is their intelligibility, and in pursuance of the indulgence accorded by the policy of the higher courts, very brief entries have been held sufficient to sustain their judgments. If this were not true, the parties might often experience great difficulty in getting out of the justice court so as to secure a trial in a court of record….

Justice courts are also limited to "civil matters … in which the amount in controversy is not more than $20,000, exclusive of interest." Stedfast pled an amount in controversy in excess of $20,000. Thus, the justice court had no jurisdiction over Stedfast's breach of contract claim. Because the justice court had no jurisdiction over Stedfast's breach of contract claim, res judicata did not bar Stedfast from asserting that claim in the district court….

It will be interesting to see what happens on remand, and on any possible appeal from the remand. Appalling as Stedfast's speech was, the same issue could easily arise with regard to any other speech that some find to be "offensive" and that draws protests, especially given that the lease appears to be a standard form, so that there are many leases of this sort. One particular question might be whether "clear, compelling, written language is required to waive" free speech rights.

For a tort law version of this issue, see "No Heckler's Veto: Court Reverses $1.5M Nuisance Verdict Against Abortion Clinic, Which Was Chiefly Based on Actions of Protesters and Arsonists," though I appreciate that parties may limit their rights by contract, so that the contract law issues aren't identical to the tort law ones.