Pledge Challenger Gains Ground in Libel Suit

Three justices on San Francisco’s First District Court of Appeal seemed inclined during oral arguments Monday to make Internet minister Austin Miles go to trial on allegations he libeled famed Pledge of Allegiance challenger Michael Newdow.

Talk is cheap, but maybe not for Rev. Miles.

Miles, a self-described “interdenominational chaplain,” had tried to convince a lower court to dismiss the suit as a SLAPP — Strategic Lawsuit Against Public Participation — aimed at blocking his free speech.

But on Monday, First District Justice Paul Haerle hammered home the point that the California Supreme Court has made it clear in at least four rulings that libel suits, such as Newdow’s, can survive anti-SLAPP motions if they possess even “minimal merit.”

Newdow — a Sacramento attorney, doctor and atheist — is famed for challenging school-sponsored Pledges of Allegiance on constitutional grounds. His case made it all the way to the U.S. Supreme Court before being dismissed in 2004 for lack of standing.

In Monday’s case, Newdow v. Miles, A109660, Newdow accuses Miles of defaming him by posting editorials on two online news services accusing Newdow of perjuring himself during pledge case arguments before the Ninth Circuit U.S. Court of Appeals.

Specifically, Newdow claims Miles accused him of saying he lied by telling the court his daughter was hurt emotionally by being forced to recite the Pledge of Allegiance in school classes. Newdow insists he never made such a statement.

Last year, Contra Costa County Superior Court Judge Steven Austin denied Miles’ attempt to strike Newdow’s suit.

During Monday’s First District oral argument, Miles’ attorney — Edward White III, associate counsel for the Thomas More Law Center in Ann Arbor, Mich. — tried to make the case that his client’s comments were substantially true. White said Miles acknowledged he had made a mistake by relying on information gleaned from other sources, but he insisted that Newdow couldn’t prove, as required by law, that Miles acted with actual malice.

“Isn’t a charge of perjury,” Haerle asked White, “a defamatory statement?”

Newdow, arguing pro per, accused Miles of making up comments and putting them in direct quotation marks. He said he would present evidence at trial that Miles wasn’t acting innocently.

“He had to know his statement I lied under oath is wrong,” Newdow said.

Justice J. Anthony Kline, however, asked whether it wasn’t possible “to make a mistake like that non-maliciously.”

Haerle took a tangent at one point to ask White exactly what Miles means in calling himself “an interdenominational chaplain with a public ministry.”

White said it means his client doesn’t minister to a single faith and doesn’t have his own church, but will marry couples, perform funerals, provide counseling and preach on occasion when invited.

“People will come to him.”

Miles seemed to win one victory Monday, when the justices informed White they weren’t interested in hearing arguments on Newdow’s contention that a $1 million default judgment against Miles shouldn’t have been voided.

The justices said they had no notice that decision was being appealed.

Mike McKee

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