THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, April 22, 1996 TAG: 9604220041
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Long : 165 lines
It was the kind of letter that was bound to be noticed.
The author was Pat Robertson. The subject was Regent University. The language was scathing.
On Aug. 22, 1994, Robertson wrote a long letter denouncing some law professors who had challenged his leadership of Regent. He compared them to Branch Davidians and cult leader Jim Jones. He called them ``fanatics'' and ``inept as lawyers.'' He implied that they were racist, sexist and anti-Catholic.
It got the faculty's attention. It also got Robertson sued for libel by three Regent law professors, each seeking $10 million in damages.
Now, Robertson will try to convince a judge that his letter was merely hyperbole and exaggeration, not meant to be read literally. He argues that the five-page letter was just an expression of opinion, protected by the First Amendment and the Virginia Constitution.
Failing that, Robertson argues that he is immune from nearly all lawsuits because he is an unpaid chancellor at a non-profit university.
On May 2, Judge Edward W. Hanson Jr. is scheduled to hear these arguments in Virginia Beach Circuit Court, where the lawsuits are pending. If he agrees with Robertson, Hanson could throw out the lawsuits entirely, or he could dismiss Robertson as a defendant.
The suits were filed in September 1994 against Robertson personally and Regent University by law professors Roger Bern, Paul Morken and Jeffrey Tuomala. Since then, lawyers have filed numerous motions, briefs and counter-briefs.
The three cases are set for trial in July, August and September, although they probably will be combined for one trial at some other date.
Whatever happens May 2 will determine whether the trials move forward, and how.
The controversy began when Robertson fired law school dean Herbert Titus in July 1993.
Titus, a biblical conservative, claimed he was fired because his views did not match Robertson's. Robertson later said Titus left because he was ``a rogue dean with a dominating spirit'' who refused``to release his power lock'' on the law school.
Titus later sued Robertson and others, and that case is set for trial in August.
Faculty loyal to Titus were incensed. In September 1993, eight law professors complained to the American Bar Association that Titus' firing was a blow to academic freedom. They said Robertson fired Titus to help his presidential aspirations.
Robertson was furious. He wrote a scathing letter to one professor and sent copies to three top university officials. The letter included a postscript, urging the recipients to ``share this letter with your colleagues on the faculty.''
As a result, the letter was widely circulated on campus and later was published in The Virginian-Pilot.
It's this letter that is the subject of the libel suit.
In the letter, Robertson wrote that the professors' complaint to the bar association was irrational and that their reasoning ``borders on lunacy.''
``No rational person burns down the house he occupies,'' Robertson wrote. ``No rational professional person seeks to destroy the source of his own employment and career advancement. Only cultists after the order of Jim Jones or the Branch Davidians do such things. Hence the complaint merely served to reinforce the view held by leaders at the ABA that the Regent Law School was in the grip of extremist fanatics.''
Robertson wrote that the ABA wanted assurances that the law school was ``not a fundamentalist cult opposed to women, blacks and people, such as Roman Catholics, who did not fit the narrow definition of Christianity held by the present dean (Titus) and certain of his faculty members.''
He also wrote of the complaining faculty, ``I have never encountered a group of supposedly educated people who were so myopic, so lacking in common sense, or so inept as lawyers.''
He wrote that Regent ``will never rise to greatness if it must depend on third-rate minds to get there.'' Eventually, two of the professors, Bern and Morken, were fired.
In October 1994, Bern, Morken and Tuomala sued Robertson and Regent because of the letter.
Now, Robertson claims he is virtually immune from lawsuits as Regent's chancellor.
Robertson's attorney, Glen A. Huff, cites a state law on non-profit groups. It exempts unpaid officers of such groups from almost any liability in the performance of their work. That law applies directly to Robertson in writing his letter, Huff wrote.
``The letter was written on Regent's letterhead and signed by Dr. Robertson in his capacity as chancellor. . . ,'' Huff wrote. ``Dr. Robertson has never received any compensation, in any form whatsoever, for serving as a trustee of Regent. . . Regent is and always has been a not-for-profit institution that is exempt from taxation.''
The law exists, Huff wrote, to encourage people to work for non-profit groups without fear of being sued. But there is an exception to the law. Robertson is not exempt from civil liability if he engaged in ``willful misconduct'' - that is, if he knew that statements in his letter were wrong and that they would hurt someone.
The professors argue exactly that. ``Robertson's letter reeks of willful misconduct,'' the professors' attorney, Jeremiah A. Denton III, wrote in a legal brief. ``Such a letter could only be written willfully. . . . It was clearly misconduct to write and publish the letter, and all the more so because of the explicit encouragement to republish to persons with no need to see it.''
In their lawsuit, the professors claim that Robertson wrote the letter ``with actual malice'' and with the specific intent to hurt them.
``Accordingly,'' Denton wrote in his brief, ``Robertson is not cloaked with charitable immunity.''
But was it libelous?
If a judge finds that Robertson can be sued, the professors then must prove that the letter was defamatory.
Robertson and Regent say it is not. They have asked the judge to throw out the lawsuits before they ever get to a trial.
In a legal brief, Regent's attorney, Thomas M. Lucas, argues that Robertson's letter is protected by the free-speech clauses of the state and federal constitutions.
``It is clear that the comments contained in the Feb. 22 letter are, when read in context, mere expressions of opinion,'' Lucas wrote.
For example, Lucas wrote, Robertson's reference to the professors as ``myopic,'' ``lacking in common sense,'' ``inept as lawyers,'' ``irrational persons'' and ``irrational professionals'' are ``mere hyperbole and loosely defined terms of opinion.''
Similarly, Lucas wrote, Robertson did not say that the professors actually are fanatical cultists like Jim Jones and Branch Davidians, but merely analogized that a professor who acts to harm the law school and jeopardize his job is like Jones and the Davidians, who ``destroyed their own houses.''
Also, Lucas wrote, Robertson's statement that the professors are not ``qualified lawyers,'' not ``capable teachers of law'' and have ``third-rate minds'' is simply a relative statement, depending on the speaker's point of view, and cannot be proved true or false.
Finally, Lucas wrote, Robertson's letter never mentioned the professors by name, so they could not have been harmed.
In any case, Lucas wrote, ``It simply strains credulity to assert that the statements in the Feb. 22 letter, when read in full context. . . could conceivably injure plaintiff's reputation. . . ''
The professors disagree.
In their reply brief, the attorney for Bern, Morken and Tuomala wrote that while some of Robertson's statements may be strictly opinion - for example, the claim that the professors lack common sense - other statements ``are flat-out factual assertions.''
``When a chancellor of a university. . . states that the professors are not capable teachers, that they are inept as lawyers, and that they are extremist, fanatical, fundamentalist, cultist, racist, sexist, anti-Catholics, motivated by a desire to destroy the law school that employs them, the chancellor implies a knowledge of facts which lead to the conclusion that those professors are guilty as charged,'' Denton wrote.
These charges are especially harmful, Denton wrote, coming from a national religious leader against professors at a religious-oriented university.
``The allegations ring all the more true to many ears, and cause all the more damage, when stated by a nationally recognized televangelist-politician-entrepreneur, etc., like Robertson,'' Denton wrote.
It doesn't matter, Denton wrote, that Robertson did not name the professors in his letter. They are easily identifiable from the context of the letter, which refers to them as ``the eight faculty signers of the (ABA) complaint. .
The motions will be heard by Judge Edward Hanson, who ruled last year against three Regent professors, including Tuomala, in a tenure case. ILLUSTRATION: Color photos
Pat Robertson
Regent University professor Jeffrey Tuomala, top, and former
professors Paul Morken and Roger Bern, not pictured, filed the
suits, contending that Robertson defamed them.
by CNB