End Times for Lawsuit Against End Times Preacher

From the Complaint in Diver v. Cote, which alleged intentional and negligent infliction of emotional distress, fraudulent misrepresentation, and an unfair and deceptive trade practice:

The Defendants produce and distribute religious content focused on eschatology, pre-tribulation rapture, and speculative end-times predictions. The Defendants' content includes repeated fear-based messages, such as:

• "Jesus is coming. The rapture is coming soon."
• "You do not want to experience standing before the Lord of the universe naked in your sin, apart from Jesus Christ."

The Defendants repeatedly emphasize 2025-2026 as a likely timeline for the rapture, fostering obsessive thought patterns and undue distress in vulnerable viewers.

The messaging in Defendants' videos induces psychological distress, anxiety, and religious trauma among susceptible individuals. The Defendants frame those who question their theology as "deceived", which promotes social isolation and cognitive rigidity for their followers. The Defendants have monetized their content through YouTube advertising, donations, and merchandise sales, potentially violating consumer protection laws if the financial solicitations are based on misleading claims.

As a direct result of the Defendants' content and messaging, the Plaintiff has suffered:

• Severe emotional distress.
• Anxiety and mental anguish.
• Disruption to personal and professional life.

No dice, Connecticut Superior Court Judge Trial Referee Joseph Shortall concluded, granting a motion to dismiss under Connecticut's anti-SLAPP statute:

The court has carefully examined the arguments made in support of the defendants' motions. The court finds that they have shown by a preponderance of the evidence that the complaints in both actions are based on the exercise of their right of free speech on matters of public concern [as required for the anti-SLAPP statute to apply], that is, issues related to health, community well-being and a public figure; namely, Jesus Christ. The defendants' speech was made in a public forum; namely, You Tube and websites open to the public, as required by [the statute].

Once there is a finding that a lawsuit is " in a public forum on a matter of public concern," the Connecticut statute requires that the plaintiff "set forth with particularity the circumstances giving rise to the complaint … and demonstrate to the court that there is probable cause, considering all valid defenses, that [he] will prevail on the merits of the complaints." But plaintiff, who is representing himself, failed to appear to present his argument on that, so the case was dismissed.

Mario Cerame (Aeton Law Partners LLP) represents defendants.

 

Comments

[tkamenick]

"The messaging in Defendants' videos induces psychological distress, anxiety, and religious trauma among susceptible individuals."

So.... don't go watch the videos?

[AmosArch]

Seems like a fairly straightforward religious question

[Mario Cerame]

Agreed. I did argue ecclesiastical abstention too (links to briefs below), but Jesus is a public figure was catchier and the judge picked that up.

[Krayt]

Also, the world's about to end, you'd best repent rikki tik or you'll be tortured in lava for all eternity!

Yes, the purpose is to stress you. The purpose of speech is to change behavior, and scaring the shit out of someone is one valid use.

You think that stress is bad, imagine someone shoving a pointy telephone pole up your ass and making you march in a circle while it works its way out, only to have it shoved in again.

You'll probably be waddle-marching next to the lawyer who sued on your behalf, if it makes you feel any better.

J/k, there's just nothingness, with a tiny but nonzero chance of a techno rapture from future super science.

[Drewski]

Under originalism, which I'm told the courts are now supposed to use in 1A cases, this decision is obviously wrong. The government was allowed to ban fortune-telling and divination at the time of the founding and therefore such matters are not amenable to First Amendment protection. Indeed, courts have historically rejected 1A defenses (both speech and religious) and the Supreme Court has declined to step in when petitioned. Seems silly to me, but if you're going to demand originalism you need to follow it wherever it goes.

[ReaderY]

Some states still ban fortune-telling etc..

These matters have long been held not to be in any way religious as a matter of law. They involve claims the individual personally has special clairvoyance powers. The idea behind these laws is that people are committing fraud because nobody actually has these powers. Because they are not doctrines about a Supreme Being or Beings, they are not religion. And to the extent they involve fraud, they are not protected by free speech.

In the 1990s, when the Michigan Legislature was debating whether to repeal its law against fortune telling, somebody asked whether anyone had ever prosecuted an economist.

[Mario Cerame]

Our Connecticut constitution, which I also used, has a particular flavor of originalism as its guiding principle:

"[J]udges must identify the framers' values, and then interpret our constitution in ways that protect those values in the modern world."

I use our state constitution frequently in free speech cases, and that originalism is quite different from the federal one. You'll also note I relied on Connecticut specific history and tradition in my arguments as well, and I think this quote fits the application here.

Best--

https://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=30022823
https://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=30022810

[CommentMonkey]

It doesn't appear that there is an uninterrupted practice of upholding blanket prohibitions on fortune-telling. There are several cases in which such laws have been struck down on 1A grounds. One consistent thread in the cases seems to involve whether the laws flatly prohibit fortune-telling (content restrictions) or whether they are primarily regulatory (requiring disclaimers, license fees, etc.). Regulatory requirements are generally permissible and flat prohibitions not.

A complicating factor for purposes of originalism is that the 1A was not deemed incorporated and applicable to the states at the time of the founding. So the fact that some state and local governments may have regulated or banned fortune-telling does not necessarily establish that the First Amendment was understood to permit such regulations/bans.

Additionally, as ReaderY points out, the impetus for laws restricting fortune-telling was consumer protection and the prevention of fraud. Fortune-tellers generally make paid predictions specific to each consumer. The theory was essentially that charging customers for fortune-telling was inherently deceptive or fraudulent. Here, the court stressed that the statements were made in a public forum and concerned matters of public importance. They weren't made in a private setting or directed at the plaintiff in particular.

So founding-era restrictions on fortune-telling don't have much, if any, relevance to this case.

[Drewski]

"There are several cases in which such laws have been struck down on 1A grounds."

But only very recent ones. Certainly none prior to WWII. Originalism doesn't look toward modern decisions.

"as ReaderY points out, the impetus for laws restricting fortune-telling was consumer protection and the prevention of fraud"

Plaintiff properly alleges unfair and deceptive trade practice.

"Here, the court stressed that the statements were made in a public forum and concerned matters of public importance."

So? Lots of fraudsters make statements in public forums regarding matters of public importance, yet are found liable for fraud for those statements. Trump University immediately comes to mind for some reason. You're applying 1A analysis, which is off the table because the Founders did not consider it susceptible to 1A.

[CommentMonkey]

"Plaintiff properly alleges unfair and deceptive trade practice."

It's alleged in boilerplate fashion. But there's no allegation of any harm flowing from the "misrepresentation." The guy didn't pay for anything. He's mad that he read or listened to something he considers offensive or untrue or unlikely to be true or whatever. In other words, he doesn't like the content of someone's speech, so he wants the government to punish the speaker. That's core First Amendment stuff.

As for the Trump University comparison, that illustrates my point. If Trump University made some false claim, and someone paid to enroll based on that claim, there's a case. It isn't a First Amendment issue because the payment was procured through fraud. Likewise, the government can punish false statements intended to mislead consumers. If, on the other hand, someone reads an ad for Trump University and it makes them mad, they can't sue to collect damages because they didn't like what they read.

Applying the First Amendment here is entirely consistent with its original public meaning.

[Mario Cerame]

"Plaintiff properly alleges unfair and deceptive trade practice."

AHh, no. He didn't make out a viable CUTPA claim. CUTPA is not a defamation statute for starters, says our CT SCt. He doesn't allege he was harmed in a pecuniary way from the trade practice, he doesn't allege a viable public policy element, etc. etc.

[wvattorney13]

"A complicating factor for purposes of originalism is that the 1A was not deemed incorporated and applicable to the states at the time of the founding. So the fact that some state and local governments may have regulated or banned fortune-telling does not necessarily establish that the First Amendment was understood to permit such regulations/bans."

Technically true, but every state had a state constitution analogue to the free speech clause. There is no reason to think that the original understanding would have been different for those state enactments as it was for the 1A.

[CommentMonkey]

"every state had a state constitution analogue to the free speech clause."

I'm no historian or expert on state constitutions, but I don't think this is right. For example, Connecticut, where this case arose, didn't even have a state constitution until 1818, and before then it had an established state religion. While many other states had constitutions in place roughly contemporaneous with the passage of the Bill of Rights, the language of most of them differed from the 1A.

So it seems to me a huge stretch to conclude that because some states prohibited fortune-telling, and because some of their constitutions had language similar to the 1A, the original public meaning of the 1A must have incorporated, sub silentio, a carve-out for banning fortune-telling that is broad enough to control the outcome of this case.

[Dr. Ed 2]

But WHY was the govt allowed to ban fortune telling, etc.?

Because it was offensive to the Christian faith.

[wvattorney13]

I don't think that's right. A lot of things are "offensive to the Christian faith" that aren't banned. ReaderY had it right. It was a consumer protection law to prevent fraud.

[David Nieporent]

Even if you weren't just trying to take a shot at originalism, your argument would be wrong. This case involves the application of a state law; the 1A is not involved at all.

[wvattorney13]

In purporting to apply originalism you have determined that hellfire and brimstone preachers can be sued? Perhaps you have misapplied originalism.

[Longtobefree]

"As a direct result of the Defendants' content and messaging, the Plaintiff has suffered:
Severe emotional distress.
Anxiety and mental anguish.
Disruption to personal and professional life."

Funny, a lot of conservatives have had that happen from democrat "messaging" (lawfare).

[ReaderY]

It’s weird how an obvious free religion claim gets shoehorned into a speech claim about a public figure because that’s what permits quick dismissal and sanctions.

The shoehorning strikes me as potentially problematic. If someone is simply a public figure, statements about that person are potentially falsifiable. But the whole point about religious claims is they are not legally falsifiable.

[Davy C]

If the claim is that the rapture will happen in 2025-2026, it's falsifiable when we hit 2027.

I think a religious freedom argument also would have worked. They used this one because of the requirements of the anti-SLAPP law.

I'm not quite sure how the shoehorning is problematic. A plaintiff would have to "set forth with particularity the circumstances giving rise to the complaint … and demonstrate to the court that there is probable cause, considering all valid defenses, that [he] will prevail on the merits of the complaints." I do think there ARE problems with that - even if the 7th Amendment isn't incorporated, Connecticut's constitution says "The right of trial by jury shall remain inviolate" and this law has the judge make a decision on the merits before it reaches a jury - but that's a problem with the law itself, not something specific to extending it to this context.

[Mario Cerame]

"They used this one because of the requirements of the anti-SLAPP law."
Winnerwinnerchickendinner, sir.

[wvattorney13]

I think we tried this in another thread. Courts have ruled that there is nothing inconsistent with a judgment as a matter of law and the 7th Amendment.

[Davy C]

Presumably the anti-SLAPP provisions make it easier to get a case dismissed than normal. So either in normal cases we are allowing meritless cases to go on for no good reason, or in anti-SLAPP cases we are allowing potentially merited cases to be dismissed.

[Mario Cerame]

Actually, it's a "community wellbeing" argument and a "safety" argument--not a religion argument--because that's what the statute provides for.

I do a fair bit with the history of religious speech in CT as part of the argument. Links above.

[Malika la Maize]

"Jesus is coming. The rapture is coming soon."

I wonder if he has a savings account or a mortgage or car lease..

[Purple Martin]

"Jesus is coming. The rapture is coming soon."

Ummm, OK. Can I have your Mercedes?

[Davy C]

Why wouldn't he have a car lease? Seems like leasing would have a lower monthly payment than buying it outright, and if you think it won't matter whether you have equity in a year or two...

[not guilty]

Do you know how to discombobulate a believer in the Rapture?

Leave several empty pairs of shoes on the sidewalks alongside the roads he is known to travel on the way to his workplace.

[Rossami]

At the risk of inserting logic into a religious question, why would the Rapture take a person with their shirt, pants and underwear but not their shoes? There's nothing in Christian theology that makes shoes inherently profane.

Sorry but if you're going to pull that prank, you'll need to spring for entire suits of clothing, socks, pocket change and all.

[Jmaie]

Hmmm. I am on the verge of retirement and was planning on taking my business attire to Goodwill this weekend…

[IANNAL]

Shake the dust from your feet ...

[John F. Carr]

Without religion as a defense, an apocalyptic preacher would be in the same position as somebody who says a building or airplane is going to blow up tomorrow.

[Krychek_2]

Oh get real. Without religion as a defense, 3/4 of religion would be shut down for fraud, and most of the remainder would be shut down for conspiracy.

In the United States, at the present time, Christian nationalism is indistinguishable from garden variety fascism and is probably the greatest threat to liberal values of my lifetime. In the Middle East, gallons of blood are being spilled because Jews and Muslims are each convinced God gave that land to them. In India, Hindu nationalists are going on murderous rampages and trying to plunge the country back into the Middle Ages. In Nigeria, Islamic extremists are kidnapping Christian children and torching Christian churches, and in East Africa, Christian terrorist organizations are returning the favor.

Reminds me of the late great Mike Royko's prayer: Dear God, please do not send us any more religion as I do not know how much more religion we can stand.

[That ain't my name]

And here we have another performance of public bigotry and hatred.

Funny how you focus on fringe groups that have a dominant, but not universal, religious identity and accredit that for violence while completely ignoring the ethnic, tribal, or national identities? Also ignoring, of course, the centuries or millennia of history that don't support your claims?

Funny, too, how you ignore atheist ideologies and all the violence perpetrated by those groups. I mean, you'd think that a hundred million murdered in the same of one of those would be worthy of at least a casual mention, since you dredged all the way down to the "East Africans" killed by "Christian terrorist organizations".

But, thank you for displaying your close-minded prejudice, hate, and bigotry to everyone. It's nice to see that it isn't only the antisemites here that are taking off the masks. Makes people like you so much easier to deal with when everyone can recognize you for what you are.

[Krychek_2]

If by atheist ideologies you mean communism, the issue was that they are communists and not that they are atheists. A China run by libertarian atheists would look very different. Mao may not have believed in God but he also didn't believe in astrology, palm reading, or weather predictions by groundhogs on February 2, so why not blame the things he did believe instead of the things he didn't?

Was the inquisition a fringe group? How about the Baptist church, which enthusiastically supported Jim Crow and gave the Klan most of its members? The Hindu nationalists I mentioned have control of the Indian government; that does not sound fringe to me.

You benefit from living in a country in which the First Amendment places limits on just how much damage religion can cause, so you don't notice just how bad things can get when religion is given free rein. I lived in the Middle East for three years so I've seen theocracy up close and personal.

[Krychek_2]

Forgot to mention, in the not too distant past I would have agreed with you that Christian nationalism was fringe. That was before Trump got elected and made one of them his Secretary of Defense. As we know from the Bolshevik Revolution, once a fringe group actually seizes power, it's no longer fringe.

[Dr. Ed 2]

Let's simplify -- I say that I think that an airplane is going to ingest a flock of Canada Geese and crash tomorrow, with no survivors.

Heck, I say that I had a dream that this will happen.

Exactly what are they going to get me for??

[Its_Not_Inevitable]

"But plaintiff, who is representing himself, failed to appear to present his argument on that, so the case was dismissed."

So the moral of the story is to hire a lawyer?

[Davy C]

Or just make sure to show up to present your argument?

[Detroiter]

Perhaps he was, in fact, raptured, rendering his claim moot?

[Mario Cerame]

Really it's learn about anti-SLAPP statutes before harassing people.