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.

Comments

[John F. Carr]

I would read the words "offensive" in the context of the words around, giving the landlord the right to stop a private nuisance, a public nuisance, disorderly conduct, or fighting words, but not speech that a hypothetical reasonable person would take offense at.

Does the principle that an ambiguous contract is construed against the drafter hold here, where the lease was a standard form?

[Bob from Ohio]

"Does the principle that an ambiguous contract is construed against the drafter hold here, where the lease was a standard form?"

I would think it would. The landlord choose the form, the fact that it was written by a trade association instead of the landlord [or its lawyer] ought not to matter.

The landlord no doubt filled in the specific terms [rent, duration etc.] and identified the property being leased. I can recall the time before word processors when deeds were typed on a form obtained from a legal forms company that had blanks for parties, dates and description. Such deeds were still prepared by the lawyer.

[bernard11]

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.

So how does encouraging the murder of gays not constitute an "activity which is a nuisance or is offensive, noisy, or dangerous;?"

It may not be noisy, but it is undoubtedly offensive, and certainly dangerous to gays.

[John F. Carr]

I believe under my state's laws that would be considered a non-criminal conditional threat rather than a criminal unconditional threat. He's saying if somebody bullies you, shoot to kill.

[bernard11]

He’s saying if somebody bullies you, shoot to kill.

I don't think so, John. Read the sentences before the incitement.

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.

He is not saying, "if somebody bullies you, shoot to kill." He is saying, "These people are bullying you, so shoot to kill." Quite a difference.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Reads the same to me. If someone is bullying you, or they are bullying you, same trigger, pardon the pun.

[Jon Rowe]

I've followed these clowns for some time. FTR, they would note they are "peaceful," don't believe in taking the law into their own hands, but rather think government should execute gays via a firing squad.

Arguably it makes their hate speech constitutionally protected via the Phelps-Snyder ruling.

[Brett Bellmore]

Well, it's obviously morally offensive to most people, including me. But the contract appears to be aimed at forms of offensive use that directly impact neighboring tenants; Bad odors, loud noises, that sort of thing. Not Satanic rituals or Brony conventions.

[Roman Moroni]

Shooting to kill sounds pretty noisy to me.

[Davedave]

Surely these words constitute hate crimes, even in the deeply backwards USA?

No idea why it doesn't bother more Americans that 99% of their country is duelling-banjos territory. Don't you realise that the USA is becoming a laughing stock?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Doesn't it bother you that you are more ignernt than your claimed 99% of the country?

[Krychek_2]

Doesn't it bother you that you can't call someone else ignorant without misspelling ignorant?

[Davedave]

I like the way he spelled it as pronounced in Duelling-Banjos territory.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Doesn't that whooooshing sound over your head bother you? Maybe you are used to it by now.

[Krychek_2]

You thought that was a whoosh? You're funny.

[Purple Martin]

First Rule of Holes, Á àß. First Rule of Holes.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I'm surprised you keep digging then.

[Krychek_2]

I doubt there's anyone here who thinks Purple Martin is the one digging.

[Toranth]

"Ignernt" is an internet slang term, used since at least 2018.

It's also been used to mock southern accents since at least the 1990s, but that doesn't seem to be the usage here. Considering both the letters used, and the fact that he's spelled the word correctly before, it seems unlikely that this (as you suggest) is an accident.

In other words, K2 and Purple, congratulations! Today is the day you have been introduced to a new thing, and learned a little more about internet slang.

[Krychek_2]

I get that, but that's not the point. If you're going to criticize someone, then don't do the same thing you accuse them of doing. Wearing a clown suit is fine if you're in a play and your role demands it; it's not such a great idea if you're criticizing someone else for not knowing how to dress.

[Toranth]

Then you could have prevented this entire subthread by simply posting that, rather than you and PM both seeming to attack ABC's "misspelling", as if it were not deliberate.

Although while I have the Davedave account blocked, it would not surprise me if the original post was exactly deserving of a non-serious and mocking response. Was whatever it posted worthy of defending?

[Don Nico]

Of course, it doesn't otherwise stuttering dave would stop posting

[Ed Grinberg]

If the only alternative is clamping down on freedom of speech (as they do in Europe), I'd rather be "deeply backward" and "a laughing stock."

[David Nieporent]

Surely these words constitute hate crimes.

Your ignorance of the constitution continues to not astound anyone who has read what you have written.

[Davedave]

There are plenty of crimes of speech in the US, so evidently such things are not unconstitutional. Do try again if you can scrape together a few marbles long enough to splurt some more words.

[Roman Moroni]

There are crimes of speech in the US, but "hate crime" isn't one of them. We do have OTHER "hate crimes" (although they aren't so much crimes in and of themselves, but mitigating factors that could add to someone's sentence) where speech can be used as evidence of motive, but hateful speech itself is not a crime.

He could be guilty of incitement to violence, which is indeed speech that is not constitutionally protected. But I'm not a legal expert so I don't know if he crossed that particular line.

[David Nieporent]

It does not remotely meet the Brandenburg standard. For "incitement" to be unprotected, it must be speech that is

(a) intended to
(b) likely to
(c) produce lawless action
(d) which is imminent.

The one that virtually all "incitement" claims flunk is (d). It's not enough to advocate that people do something illegal. One has to advocate that the act occur right then and there. Think lynch mobs. Basically, if there's a gay person in the church and the preacher yells, "Go get that guy and put a bullet in his head!" it would be unprotected. But an abstract, "Gay people should all be shot" is not.

[David Nieporent]

There are plenty of crimes of speech in the US,

There are a few crimes of speech in the U.S. "Hate speech" is none of them.

[SimonP]

There would be no interesting constitutional question here - would there be? - if the lease had simply said, "You can lease this property as long as you don't engage in 'hate speech' directed towards gays." We generally take it for granted that the First Amendment does not protect people who have agreed, by contract, to limit their speech, from those same limitations.

Similarly, there would be no interesting constitutional question - would there be? - if the lease had simply said, "You can lease this property as long as you don't engage in speech that the owner disagrees with." That might require a court to review evidence, interpret the lease, etc., but having a court do that kind of thing presents no kind of First Amendment issue, does it?

That all being the case, it's hard for me to read this post as anything other than Eugene suggesting that strong First Amendment protections for speech in tort law ought to be extended to protect even people who have contractually agreed not to do things that, in other contexts, would have free-speech implications. Why can't I agree to a "heckler's veto" contractually? Is the First Amendment supposed to void those kinds of contractual provisions?

This is nasty business, Eugene. Once again making your anti-LGBT bias clear.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Protecting free speech almost by definition means protecting offensive speech. It's telling here that you are offended by the protection. Your hate-free-speech is more offensive than the speech itself.

[Krychek_2]

No, that's not it at all. The First Amendment only applies to the government; not private parties. The government cannot tell Stedfast Baptist what to say or not say, but Stedfast's landlord absolutely can.

[Rossami]

Actually, the landlord can't. (At least, not always.) Contractual clauses that require a waiver of rights are frequently deemed "void as contrary to public policy". This is especially so when the contract drafter is far more sophisticated than the other party and even more so when the contractual clause in question is vague or discretionary.

To Simon's point above, the landlord will be on stronger ground the more specific the prohibition and the more customized the contract (customization being evidence that the parties negotiated as equals and that acceptance of the terms was fully voluntary). In the case above, the landlord is on relatively weak ground. But more importantly, it should have actually required a trial to decide rather than merely being dismissed.

[Krychek_2]

"Absolutely" may have been a bit of an overstatement, but this is a commercial contract, not a consumer contract, so the church will have a lot harder time convincing a court that void as against public policy applies. Assuming it does apply, do you really think a judge is going to find that it violates public policy to not allow your property to be used to advocate violence?

[Rossami]

Commercial contract does weigh against the tenant. But the vagueness of "offensive" weighs rather strongly against the landlord.

Regardless, whether the conduct described above is actually "advocating violence" assumes the very conclusion that a trial is supposed to sort out. Remember that this is still at motion-to-dismiss stage. The merits have not yet been argued (except at the "justice court" level which, as the decision points out, is not determinative).

[Krychek_2]

There will be no trial; the landlord will win on summary judgment. Here's what the pastor said:

"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."

[Roman Moroni]

Are saying the landlord wins because that statement is objectively offensive, so "offensive" need not be more specifically defined for the purpose of the contract? Or are you saying that the quoted statement is a crime in and of itself (incitement) so the landlord can void the contract for that reason?

[Davedave]

There may be a vague lower bar for 'offensive', but it's irrelevant given the actual words in question.

[David Nieporent]

Contractual clauses that require a waiver of rights are frequently deemed “void as contrary to public policy”.

All contractual clauses require a waiver of rights. I mean, the entire point of a contract is to bind you to do something you wouldn't otherwise be legally obligated to do (or the reverse: to bind you to not do something you would otherwise be legally obligated to do.) Assuming the contract isn't with the government, that's virtually never problematic.

(I say virtually; an obvious exception is that one can't sell oneself into slavery.)

[Rossami]

That's true - and not at all what I said. Some rights cannot be waived. (See your own example about selling oneself into slavery.) Others can be waived but only with higher-than-usual degrees of scrutiny, specification, etc.

While it's true that most contractual clauses aren't 'void as contrary to public policy', "virtually" is doing a lot of work in your statement. Most clauses are upheld because most clauses aren't actually contrary to the public policy - they don't touch public policy at all. Voiding controversial clauses, however, ... Well, it's still not common but it's hardly unknown.

[SimonP]

Another angle you're missing here, Eugene - which you are missing because you are not a practitioner - is that the lease serves an important risk-shifting function.

In the tort context, we abide by a general rule that holds, effectively, that some putatively libelous statements are nonetheless non-actionable. A person may be wrongfully harmed by these statements, but we view that as less important than the broader free speech values we're trying to uphold. And the wrongfully-harmed person always has a remedy they can pursue - by speaking out in their own defense.

In the contractual situation, and in particular a lease-tenant situation, the purpose of the contract is to allocate risks and associated costs to one party or the other. A contractual provision that says, "Tenant may not use the property to engage in nuisance activity" means that the Tenant bears the risk of its nuisance-causing behavior. If the Owner gets sued, the Tenant may be required to indemnify the Owner. If the Tenant engages in the behavior, the Owner may terminate the lease.

So to speculate that maybe the lease shouldn't be interpreted to effect a kind of "heckler's veto" over the Tenant's behavior is just to say that the Owner ought to bear the risks and costs of protest activity and/or damage. The Owner, under such a rule, can do nothing to stop the Tenant from engaging in activity that attracts and enrages the mob. The Owner can't stop them from engaging in the speech, and the Owner can't evict them. But the mob continues - and the Owner is potentially on the hook for the nuisance and damage such a mob might cause, with no remedy against Tenant.

In what possible universe does the First Amendment require that result?

[Bored Lawyer]

"That all being the case, it’s hard for me to read this post as anything other than Eugene suggesting that strong First Amendment protections for speech in tort law ought to be extended to protect even people who have contractually agreed not to do things . . . This is nasty business, Eugene. Once again making your anti-LGBT bias clear."

Always good to condemn someone on your own interpolation of what he said. Prof. Volokh made no such claim. He posts about interesting issues that implicate speech. And what is different from your hypothetical and the actual case is that application of the contract here is vague, to say the least. I read the post as arguing that you need a clear waiver of your free speech rights before a court will enforce the contract. Quite a bit different from your, ahem, reading.

[SimonP]

Well, you're a partisan hack, so a fat lot of fuck I give this take.

The lease itself is not actually what anyone would describe as "vague." That's perfectly ordinary contractual language. The only question that is "vague" is whether it specifically applies to the conduct in question.

Eugene's suggestion in the OP is that it ought to be interpreted in such a way as to respect First Amendment principles, invoking in particular a "clear waiver" principle that has no apparent legal support apart from the say-so of a district court judge, when evaluating a situation where no contractual language existed.

This is plainly motivated reasoning. And motivated by what? Is it just a coincidence that anti-gay rhetoric is at the center of the dispute?

[Bored Lawyer]

Keep beclowning yourself. Try one of those red-nose attachments, works wonders.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

He did, he wears it all the time, thinks it makes him leader of the reindeer pack distributing wisdom around the world.

[SimonP]

Given that it would not be particularly difficult to find an example where you've taken a specious "legal" position on an issue, in order to support a conservative agenda, or where you've embraced a conspiratorial narrative, this might easily be taken as "high praise."

Fascists hate people who favor pluralistic and democratic values. Bigots hate people who don't share their narrow and obsessive "othering" of disfavored groups. Conservatives hate people who effectively point out their shit. If I am a "clown," in your view, then I'm doing something right.

[Toranth]

Fascists hate people who favor pluralistic and democratic values. Bigots hate people who don’t share their narrow and obsessive “othering” of disfavored groups. Conservatives hate people who effectively point out their shit.

.
..
...

Well, then.

[Roman Moroni]

Simon, it's not even a coincidence. I'm pretty sure you'd need more than one instance to even rise to the level of coincidence.

But that's just snark on my part, and I do want to engage you sincerely because I do happen to know that your assumptions about Eugene's biases are incorrect, and I'd like you to come away from this at least CONSIDERING the possibility that you aren't seeing the complete pattern.

No doubt you could find multiple instances where his free speech principles win out in cases that involve the LGBT community. But that would be a small circle entirely contained within a much larger circle of cases where his free speech principles win out against pretty much everyone.

I'm not trying to win an argument or imply that you're arguing in bad faith. I believe you do see the pattern you think you're seeing. We're all guilty of interpreting things and seeing patterns based on (often reasonable) assumptions. You're probably right about many "free speech" conservatives and even some self-professed libertarians. You're just wrong about Eugene.

If you do actually want to come away with a more accurate assessment of Eugene, go over his many, many, many, free speech posts, and instead of looking for all the ones that land on the free speech side vs. the LGBTQ community, look for all the clearly non-principled, anti-free speech conclusions he reaches in other cases where (presumably) his own Ox is being gored. If you can find a bunch of them where the only reasonable conclusion is non-principled viewpoint bias, then by all means, retain your current assumptions. If not, perhaps reconsider them.

[Roman Moroni]

Simon, I think you're being completely unfair in your criticism of Eugene here. First of all, I don't see any clear opinion on his part when it comes to this case. Only that it's interesting.

And the reference to "Heckler's Veto" in this context is that an abortion clinic was not responsible for the actions of anti-abortion protestors. I don't know much about the specific case but I think it sounds like a pretty good precedent. What kind of bias on my part do you infer from that?

The only personal opinion I see Eugene contributing here is that Stedfast's speech was appalling.

Is your contention that because you, Eugene, and I all find the preacher's speech to be appalling and offensive, that we should assume the preacher violated some objective definition of "offensive" in contract law that wasn't explicitly defined in the contract itself? For all I know, you may be right. I know very little about what the standard of vagueness is for such things. If it's "what a reasonable person thinks it means" then it would probably qualify as offensive. But from what others are saying about vagueness usually working against the drafter of the contract, I'm inclined to think it might not be such a slam dunk.

But regardless, I don't see any bias on the part of the author that you are describing. And if you want to reference a "pattern of behavior" I think if you really want to look at the larger pattern you'll see that Eugene generally leans to the free speech side (at least when it comes to legal issues) regardless of who doesn't like the speech. I'd be interested to see some examples you could provide to the contrary that shows a clear viewpoint bias.

Do you assume he's just so hardcore pro-choice in the "Heckler's Veto" case that he'd take the reverse position if it involved protestors of one of those "save the baby at all costs" clinics? Do you see his bias there too?

[tkamenick]

Too subjective to be an enforceable clause in a contract. Anything that gives one party unilateral discretion to decide whether a duty has been fulfilled or violated can be struck. The archetypical personal satisfaction clause - "I'll pay you $1,000 to paint my house if I think you've done a good enough job." There's no objective standard for something being "offensive" (or "noisy" for that matter).

[John F. Carr]

I remember seeing a decision, I think it was applying Colorado law to a contract for cable TV. The customer tried to get out of the contract by pointing to the standard tech company clause saying the terms were subject to change without notice and the customer always loses. Surely that means there was no agreement because the company did not have to perform. The court noticed that the customer had paid the bills for a while and received services in return and refused to void the contract. This may have been a dispute over arbitration – if it's an enforceable contract the arbitration clause rules, and if it's not a contract at all the customer does not have to arbitrate. So it might be relevant that the landlord and tenant had both acted like the contract was real.

[apedad]

Ugh. . . the words "First Amendment" should be NOWHERE near this case.

There are zero first amendment issues since the govt is not a party.

Additionally, it doesn't matter which words were used and they could have said kill Muslims, Jews, left-handed baseball players, etc.

This is a straight up contract/property case.

[Bored Lawyer]

I think what he is arguing, if I read him right, is that while you certainly CAN give up your rights contractually, there has to be clear language that does so, not the vague stuff in this case. Whether that emanates from the First Amendment or from some common law gloss on the law of contract interpretation, you have to ask him.

There is some precedent for requiring clear and unmistakable language on certain contract issues. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (Questions of arbitrability are presumptively for a court unless the parties clearly and unmistakability manifest their intention (i.e, agreement) that such issues should be determined by an arbitrator in the first instance. )

[apedad]

But it's not a 1A issue if you voluntarily give up a right.

Military officers voluntarily give up their 1A right to publicly degenerate the President.

So the only question is how to interpret the contract.

[Bored Lawyer]

But that begs the question of whether the church volunatrily gave up its rights or not. The contract, as applied to this situation, does not necessarily mean the rights were given up. So the issue is, if I agreed to something that might or might not be construed as giving up my 1st Amendment rights, should the benefit of the doubt go against the construciton that gives up the rights.

Frankly, I am dubious whether there was an intent to restrict what could be said in a sermon at the church. There are lots of passages in the Bible that many would find offensive. Many are to the effect that "You are sinners whom God will punish if you do not repent." It would be pretty shocking if the church gave up the right to preach that.

[Brett Bellmore]

I agree: It seems extremely unlikely that the church would voluntarily give up a right so central to their use of the space as deciding what they will preach.

[Davedave]

Nutjobs like these think they are above contracts and laws. Just like you, in fact.

[apedad]

But they did agree to the contract and this particular restriction which states, ". . . any activity which is a nuisance or is offensive, noisy, or dangerous. . . ."

So, in this case, who has the contractual right to define 'offensive?"

[Bob from Ohio]

"who has the contractual right to define ‘offensive?”

Nobody. "Offensive" could have been defined, it wasn't so both sides are stuck with it. Up to the court to define it further since there is litigation.

[Davedave]

You have created an imaginary situation where the speech was borderline or debatably offensive and still acted against. But this speech was neither - even the religious types in question likely agree it is offensive to gay people, and argue it is their religious duty - that was Fred Phelps' line. (How they square that with claiming to be Christian is another issue.)

[Brett Bellmore]

Sure, it’s clearly “offensive” in some sense, and intended to be so. The question is whether it’s “offensive” in a sense relevant to the contract. Based on the accompanying language,

“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; ”

I take the contract to mean conduct which was “offensive” in a manner which interfered with the other renters’ use of the property, or threatened to impose costs on the owner. Loud noises, bad smells, posting obscene signage, creation of crowding outside the unit. Not morally offensive.

The closest you get to qualifying under that reading is that they might be creating a potential for disruptive protests.

[shawn_dude]

By your own take, actions likely to attract protestors would qualify as they would interfere with other tenants' use of the property and potentially result in violence and/or damage which would impact insurance premiums and impose costs on the owner.

[Brett Bellmore]

It's kind of a question whether actions likely to attract protestors would really qualify, in as much as it's the protestors, not the church, causing the problems.

[shawn_dude]

This would be a "known or should have known" type of situation. If you thwack a beehive, the bees do the stinging but the chaos started with swinging the stick. The protestors are not the cause but the effect. They're *legally* liable (most likely) but the insurance company isn't going to care when it raises rates. Consider, by example, a fully insured driver who gets into a few accidents, none their fault legally, but still gets a premium increase as a result. And if they damage the property, the landlord and other tenants bear the brunt of the associated inconveniences until it's repaired and paid for.

[perlmonger]

This was explicitly covered by the part at the end where the abortion clinic was not found guilty of attracting arsonists.

[shawn_dude]

That's easy enough to do, really. The Bible, mostly in the Old Testament but not entirely, has some very strong words about "men who sleep with men as if a woman" and, depending on which version you pick up, it's often followed by "shall surely be put to death" or something similar.

I'm personally grateful that most Christians find ways to avoid following the more violent parts of the Bible.

[Davedave]

"The Bible, mostly in the Old Testament but not entirely, has some very strong words about “men who sleep with men as if a woman”"

Not in the original - it's a mistranslation. But in any case, that's the OT. You could claim to be Jewish and argue that's an acceptable view (mistranslations aside). Christian, nah, Jesus said otherwise very, very clearly.

[shawn_dude]

Mistranslation is an opinion and, in this case, an irrelevant one. It doesn't matter what the Bible does say, should have said, or meant to say. What matters is what individual Christians and pastors and churches think it says because that's what they'll base their actions on. The new testament sections that many Christians believe speak to homosexuality are: Romans 1:26–27, 1 Corinthians 6:9–10, and 1 Timothy 1:8–11.

And yes, Jews can also believe these things and even, occasionally, act upon them.

[Bored Lawyer]

So in your view, if the pastor or minister read those passages of the Bible, the landlord could evict the church as having engaged in offensive activity?

[Davedave]

Are your brainworms moving and making you hallucinate things no-one said again?

[SimonP]

No one is "giving up their First Amendment rights."

Tenant in the OP clearly gave up their "right" to cause a nuisance using the Owner's property and to do anything "noisy, offensive, or dangerous" with that property. The question is just whether giving sermons that attract protests on or near the property - thereby disturbing neighbors and potentially damaging the property itself - properly falls within that description.

Under ordinary principles of contract interpretation, we would look to the intent of the parties when entering into the contract. We don't play this silly, legalistic "originalism" game, where we try to parse the meanings of the words and apply them pedantically. We ask, instead, something like: What would the parties have understood a "nuisance" to include? We try to understand whether the parties would have entered into this contract, with these terms, if they knew ex ante that it would be interpreted one way or another.

Now what you and the other conservatrolls are arguing in favor of is some kind of "public policy" rule that imposes its own limiting principle on how we interpret the word "nuisance." "Free speech" activity, under this rule, is just categorically excluded from the possibility of being a "nuisance," unless the contract spoke from the very beginning with "clear and unmistakable language" that that "free speech" activity would not be permitted on the property. But that just means that the Owner now has to tolerate a use of his property that he might not have wanted to tolerate, and bear all of the risks and potential costs that might result. Why would the First Amendment require this? Why should it? What do you reasonably expect an Owner, locked into a lease with a nuisance-causing Tenant due to this "public policy" limitation, to do about it?

This is all so bonkers that it's hard to understand why any reasonable person would go along with it.

What would you say if the church, instead of giving hate-filled sermons, instead endeavored to operate a food bank-like service out of the property? Let's suppose it's not prohibited by any other clause of the lease. But by nature of the program, it tends to attract a lot of poor, possibly homeless people. Let's say it's so successful that people line up, leave trash on neighboring property, maybe even relieve themselves publicly nearby. That sounds like a "nuisance," doesn't it?

But what if the Tenant church comes back and says - this is First Amendment activity! Specifically, this is about exercising the church's right of free expression. So even if it disturbs the neighborhood unreasonably, it's protected.

Am I wrong in expecting you to say: well, that's obviously a "nuisance," so it's covered by the lease, and there's no issue?

[mulched]

The President is publicly degenerate, isn't he?

[Roman Moroni]

apedad, I understand your point about the first amendment not being applicable legally, but I also understand why it might be mentioned in the context of the vagueness of "offensive" in a contract.

For example. If you sign an HOA that says your house must remain safe to live in, if they kick you out for having a gun in the house, it might be relevant that they never specifically asked you to give up your second amendment rights. It might be easier for them to kick you out for having open containers of gasoline in your living room.

Yes, the primary issue is the vagueness of the word in the contract. But maybe if they want you to give up a constitutional right (which we all agree you can do in a private contract) without being very explicit about it, perhaps it can at least be presented as a reasonable assumption on the part of the tenant that they were not making that particular demand in the contract. Perhaps it's an argument that a court might consider. Like, "if it's vague, err on the side that they didn't ask you to give up a specific constitutional right."

But I could be totally off base here.

[SimonP]

So, class, can someone explain why the rule on arbitration-of-arbitrability clauses might require "clear and unmistakable language," that might not apply in other contractual cases? It appears that our colleague BL is having difficulty discerning the underlying principle.

[Bored Lawyer]

Are you actually a human waste portal, or do you just pretend to be one?

[mulched]

A lot of angst here for a case where there's been no decision on the merits and the OP didn't even pick a side.

[Bob from Ohio]

Apparently even talking about this case makes you a horrible bigot.

[M L]

1. If we're being honest, contractual language like this stems from a very short time ago when, if an "offensive" "activity" were to extend to speeches and sermons and opinions at all, it would be more likely to apply to pro-gay speech than anti-gay speech. It is what it is.

2. I would aimlessly speculate that a survey of case law would indicate that in a real property context, the term "offensive," particular as applied to "activity" would be a lot more applicable to actual, you know, action, as opposed to talk. Things like strip clubs and other lewd activity. It probably also overlaps with nuisance, like smells that are offensive to the nostrils.

3. Of course when it comes to speech, "offensive" is in the eye of the beholder. That's all. So which beholder counts? The party alleging breach? The judge? The community activists who show up on the sidewalk? Does it depend on which side has better turnout on the sidewalk?

4. As seems obvious from the foregoing, if a contract provides that saying or doing something "offensive" is a breach, and what counts as offensive is not specified either in the contract or as a term of art, but is up to what the counterparty considers offensive, then it would seem like the counterparty has you by the short hairs and can declare breach rather easily. This could affect many areas beyond real estate. Sports, music, and other entertainment contracts come to mind where an individual might be canceled from a political motivation for saying something mildly politically incorrect, as opposed to economic motivation to protect a brand. That seems like it could be a tough one to distinguish.

5. A lot of the commenters above seem to be seeing red at awful speech like the Nazis in Skokie and just want to punish it, while dressing it up as some other legal argument. Unfortunately there is a very widespread idea that offensive speech is or should be a punishable hate crime.

[bernard11]

They are not saying they disapprove of homosexuality, or that it is sinful or immoral, or ought to be illegal.

They are explicitly advocating murder.

[Brett Bellmore]

Eh, I think it's clear that they ARE saying they disapprove of homosexuality, that it is sinful and immoral, and ought to be illegal. And thus explicitly advocating murder.

But not imminently enough to lose constitutional protections; You CAN advocate murder and be within the 1st amendment, so long as you're non-specific enough about it.

[bernard11]

I think it’s clear that they ARE saying they disapprove of homosexuality,

Sure. What I meant was that they weren't just saying that.

[Brett Bellmore]

I got that, but it's generally a good idea to make sure what you say actually agrees with what you mean, rather than contradicting it.

[Roman Moroni]

Let's assume, just for the sake of this exchange, that the preacher didn't reach the legal threshold of incitement (in which case the definition of "offensive" as it applies to the contract would be moot). Are you saying that advocating murder is per se offensive? What if he'd said that anyone who commits violence against gay people deserves a bullet in the head? Would that also meet what you believe is an objective definition of "offensive" in this context?

If not, the offensive part (or at least what tips the balance to offensive) is who he's saying deserves the bullet, yes?

For the record I'd want the preacher kicked out too. I don't know enough about contract law to know if "offensive" has some kind of "what a reasonable person thinks it means" standard in this context. But from reading the comments of more knowledgable commenters here, it doesn't seem so.

[Jon Rowe]

I mentioned this above and I will again note. These are the most despicable examples of "Christians" I can think of. But, like the Westboro Baptist Church a lot of their figures are not dummies.

They do NOT advocate for homicide against LGBT. They would note they think the GOVERNMENT should execute them via firing squad.

That makes their speech constitutionally protected via Brandenburg and Snyder.

[bernard11]

BTW, while I'm glad Stedfast disapproves of this shit, did they not know who they were renting to?

[Brett Bellmore]

I expect they knew they were renting to "a church". And didn't inquire further.

[David Nieporent]

Yeah, I agree with Brett on this one. Why would a landlord review a preacher's sermons before renting out a property to a church?

[shawn_dude]

" 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."

I've read about words just like this before, only not regarding LGBT persons and they had a similar, of not more efficient, final solution.

Vile.

[Roman Moroni]

Yes, absolutely vile.

But as you pointed out already, quoting the bible (as currently translated, just to cover my bases here) can be pretty damn close to this level of vile.

I think that's perhaps relevant when it comes to what a reasonable interpretation of "offensive" might be in the context of a contract between a landlord and a Christian preacher. If all that preacher did was quote the vile passages from the bible about homosexuals surely being put to death, and made those sermons public which brought on nuisance causing protests, I don't think the landlord would have much of a case. We have to assume that the landlord knew that both testaments, and everything in them, is what preachers preach about. Even if they are just paraphrasing rather than quoting.

But I wonder if it could be argued that making the vile sermons public on the internet might be the actual violation, since a reasonable person could anticipate that this might bring on lease-violating activity on the property.

I'm not a lawyer so I have no clue. Just musing.

[Rev. Arthur L. Kirkland]

America’s vestigial bigots have no greater friends than the Volokh Conspiracy and its carefully curated collection of conservative commenters.

Carry on, clingers.

[SimonP]

It's part of a pattern. He cares an awful lot about how laws against things like sexual harassment and anti-LGBT inhibits "free speech." We practically have a whole body of caselaw now about how the Constitution specifically protects anti-LGBT beliefs and speech, and Eugene appears interested in expanding it.

[Ed Grinberg]

I suppose, by that logic, those ACLU lawyers who made sure neo-Nazis could march through Skokie must've been card-carrying Nazis themselves... What a moron you are!

[Davedave]

I think Eugene is just lacking in empathy, or perhaps in life experience. He doesn't think of the victims as people, but as data points. If you refuse to admit the harms being caused, then obviously it's impossible to conclude that any restriction, however minimal, reasonable, and justifiable, is striking a fair balance.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And your pattern is different because it's morally superior or something?

[Davedave]

I have no time for that sort of pseudo-science, I'm afraid. It only ever reflects the prejudices of the researchers.

(That's not to say the conclusion is necessarily wrong, just that the methodology is nonsense and the proof nonexistent.)

Apart from anything else, the definition of libertarian is too loose for the claim to hold up. Sure, you can define it more narrowly - but the subjective decisions involved mean the science ends there.

[SimonP]

Conservatives have no problem whatsoever in pointing out the ACLU's apparent or express position against "hate speech" and "gun rights," and for "liberal" issues like abortion rights and voting rights, so I fail to see your point here. They have a "pattern," sure. Slightly less noxious than Eugene's.

[SimonP]

What do you think my "pattern" is, exactly?

I find the anti-LGBT skew of First Amendment law obnoxious, because I favor the rule of law, coherent doctrine, and consistent adjudication.

I dislike sloppy extensions of First Amendment principles from one area to another without sufficient attention paid to relevant distinctions, because I favor rigorous scholarship.

I repeatedly try to bring attention to Eugene's consistent anti-LGBT bias because, being a professor at a public law school in LA, I think his students (who likely skew more liberal and more LGBT) should be aware of the kinds of biases that inform his constitutional views. His biases are less patent than the biases that inform, for instance, David's and Josh's views, so his students (being inexperienced) are less likely to perceive them independently.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"I repeatedly ..."

There. That pattern.

[Brett Bellmore]

It's not an anti-QUERTY skew. The exact same reasoning would protect the Church of Holy Butt Sex advocating public executions of straights.

It's an anti-restricting what people can say skew. The fact that a lot of QUERTY people are convinced that they're entitled to dictate others' speech is just an historically contingent coincidence.

[bernard11]

The exact same reasoning would protect the Church of Holy Butt Sex advocating public executions of straights.

As I read it, they are not advocating public executions. That would, I suppose you could argue, imply that there was appropriate legislation, etc.

They are advocating murder.

"These people are bullying you and you should just shoot them."

[SimonP]

If you're going to try to get my goat by refusing to use any form of "LGBT," a term that is perfectly commonplace in right-wing and left-wing discourse, the least you could do is correctly spell your oh-so-edgey substitution. Try "QWERTY," dumbass.

But anyway, if you knew a single ounce about what you're talking about, it wouldn't be hard to describe exactly what I mean. It turns out that religious, conservative people have a lot of constitutionally-protected rights when they want to discriminate against LGBT people that pro-LGBT people don't really have access to, when they want to discriminate back.

[Ridgeway]

Legally, that is a distinction without a difference.

[Brett Bellmore]

Yes, I refuse to use an acronym that keeps mutating on a daily basis, and lacks any vowels to allow it to be pronounced.

I'm not doing it to get your goat, that would require that I actually CARE about your goat.

[Roman Moroni]

Queen, I think a single instance can be a break in a pattern. Or at least it can help you figure out what the pattern actually is, and is not.

If you show me that someone seems to defend speech rights in all cases where the offended party is a member of the LGBTQ community, but then I show you an example where the offended party is someone other than a member of the LGBTQ community, then perhaps it should tell us that the LGBTQ aspect isn't the defining component to the pattern. It could be that it just involves a larger circle of bigotry (like against Jews as well in the Skokie example). OR it could be a pattern of uncompromising free speech principles (which I believe you are inclined to believe when it comes to Eugene).

Unless I can see examples of clear hypocrisy on Eugene's part when it comes to free speech cases, I don't think viewpoint bias is a reasonable assumption.