Suggestion That Rabbi Endorses Jews for Jesus May Be Defamatory

From Amitay v. Jews for Jesus, decided Thursday by the California Court of Appeal (Justice Marla Miller, joined by Justices James Richman and Tara Desautels):

In December 2023, JFJ posted on its social media pages, including on Facebook and Instagram, a blurred photograph of an Israeli soldier wearing a yarmulke. Above the photograph was the following text attributed to "Nachman": "'Thank you for leaving at my home a copy of the New Testament. I look forward to reading it when I return home from the war'—Nachman, a young Haredi soldier." {Haredim are sometimes referred to as 'ultra-Orthodox,' although this term may be considered objectionable."} {Some of the posts went on to state: "One of the ways that God provides for His people is through the generosity of other people around the World, like you. Because of your support, we were able to give a copy of the New Testament to Nachman and more than 1,000 Israelis in 2023!"}

Amitay filed a complaint against JFJ, attaching screenshots of JFJ's posts. He alleged that the photographs posted by JFJ were photographs of him, that they had been posted without his consent, and that defendant had defamed him …. Amitay alleged that he was a Jewish Orthodox rabbi who had "dedicated his life to the study of the Jewish Orthodox faith and committed many years studying to become a rabbi," recounting about a dozen years of study.

He had finally gotten a job teaching at an institution in Israel where he had worked for two years, a position he described as his "dream job." His job "suddenly came to an end as he was terminated … due to an egregious act by JFJ," namely, "upload[ing] photos of Amitay on [its] social media pages." He alleged: "JFJ posted a picture of [him] on their website giving the appearance that he supports JFJ's cause. Not only was a photo uploaded, but the post included a caption also falsely expressing that [he] supported JFJ's religious views." Amitay alleged that he is "an Orthodox Jew, a more traditional branch of Judaism, which [has] starkly different views from JFJ." He "never before associated with JFJ and disagrees with their religious views." …

Amitay alleged that when his employer "saw the pictures posted online," they "expressly stated that his termination was due to the posts online of him supporting JFJ, and that they could not condone or be associated with someone involved with JFJ or their views." Amitay alleged that the posts were false because Amitay "has no affiliation with [JFJ] … and disagrees with [JFJ's] religious views." …

Amitay also submitted third party declarations. Chaim Chadad, who described himself as "a friend and acquaintance," declared: "I saw the picture and it seems that [Amitay] writes there in favor of Christianity for a non-profit organization named Jews for Jesus." Another friend of Amitay, David Menachem Mundel Shaher, declared: "When I saw the picture of [Amitay] with a caption to the effect that he believed in a false god, I was shocked, and it is impossible to express the extent of my shock." A rabbi in the Israeli army declared: "I saw a picture of Ariel Amitay in the [social] media, and I was shocked that an observant Jew would write in support of Christianity for all to see…. This is contrary to his role as a religious Jew …." …

The appellate court held that the case could go forward. Some excerpts:

JFJ's second argument is that the posts "do not reference Amitay … by clear implication" because JFJ "blurred [his] face;" in other words, Amitay fails to sufficiently allege that the posts are of and concerning him. We disagree. In order to satisfy the "of and concerning" requirement, "the plaintiff must effectively plead that the statement at issue either expressly mentions him or refers to him by reasonable implication." Here, as pleaded, the quote in the posts can be reasonably understood to refer to the person in the juxtaposed photograph, and Amitay has sufficiently alleged that he is the person in the photograph….

JFJ contends that "libel per quod requires plaintiff to plead and prove that the publisher intended the words to impute wrongdoing to plaintiff[,]" citing Palm Springs Tennis Club v. Rangel (Cal. App. 1999). However, we decline to impose an intent requirement, which is contrary to "the great weight of authority" including our own prior decision. (See White v. Valenta (Cal. App. 1965) [requiring the plaintiff to prove the defendant intended the defamatory meaning "is contrary to other cases [citations] and the great weight of authority"]; Carl v. McDougall (Cal. 1919) ["If the words were slanderous, the intention with which they were used is immaterial …"].) …

Amitay has presented admissible evidence that JFJ made statements to third persons who reasonably understood the statements to be about Amitay. [T]he reasonable inference from [witnesses'] statements is that each of these individuals saw the picture of Amitay in one of JFJ's posts, recognized Amitay in the picture, and attributed to Amitay the words quoted ….

Second, Amitay has presented admissible evidence that others understood the posts to have a defamatory meaning, namely, that Amitay was supporting JFJ or its faith. (See Taus v. Loftus (Cal. 2007) ["The tort of defamation 'involves (a) a publication that is … (c) defamatory ….' [Citation.]"]; Civ. Code, § 45 ["Libel is a … publication … which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation"].)

Chadad declared: "[I]t seems that [Amitay] writes there in favor of Christianity for a non-profit organization named Jews for Jesus. I … was surprised that an educator would speak against Judaism …. This is unacceptable …. This caused me to distance myself from him for a period …." Rabbi Eichel stated: "I saw a picture of Ariel Amitay in the [social] media, and I was shocked that an observant Jew would write in support of Christianity for all to see…. This is contrary to his role as a religious Jew, and it is testimony to his mental instability." Shaher declared that he "saw the picture of Ariel with a caption to the effect that he believed in a false god" and "there is no place in the community for such a person or for his children." A reasonable inference is that Shaher understood the posts to mean that Amitay had expressed support for the evangelistic views of JFJ….

JFJ contends for the first time on appeal that "deciding whether Jews for Jesus harmed Amitay's reputation and standing would require the factfinder to improperly entangle itself in the tenets of Orthodox Judaism." … We conclude that JFJ waived this contention for purposes of its anti-SLAPP motion. Even if we considered JFJ's untimely argument, the argument is not persuasive….