One would expect the Church to find itself in a worse position than Arthur Andersen. After all, the prevalence of child sexual abuse — both alleged and proven — among its clergy is truly breathtaking. So too is the Church leadership’s role in hushing up the lawsuit settlements, then frequently re-assigning sexual predators to new and unsuspecting parishes. But as it turns out, the Church is in a very different — and far more favorable — position from business corporations that are criminally liable for the actions of their employees. That’s because the First Amendment protects not only religious freedom, as most people know, but also the freedom to associate with other like-minded individuals for a wide variety of political, religious, philosophical, and other such purposes. Churches, in other words, are doubly protected.
The legal interpretation of the First Amendment that protects the Church from criminal indictment on grounds of associational liberty was spelled out in a 1982 civil case involving a non-religious organization: the National Association for the Advancement of Colored People (NAACP). Ironically, the ruling that saved the NAACP from a ruinous money judgment and also prevented its being indicted by the hostile state of Mississippi now protects the Boston archdiocese and its leader.
The case, decided by the US Supreme Court, was curiously named National Association for the Advancement of Colored People v. Claiborne Hardware Company. It grew out of a 1966 boycott in Claiborne County, Mississippi, in which the local black population attempted to force white merchants to grant black citizens access to jobs and services equal to that enjoyed by whites. At a meeting of several hundred people held by the local branch of the NAACP, speakers sought to persuade black citizens, some of whom were not yet honoring the boycott, to join the effort. The methods of persuasion used by some of the boycott organizers, and hinted at in some of the leaders’ speeches, convinced the Mississippi state courts to award damages to the white merchants who sued civilly, claiming an illegal conspiracy by the NAACP to enforce by threats of violence an economically devastating consumer boycott.
One of the more potent pieces of evidence cited by the state court for the illegal, threatening nature of the boycott was a speech by local civil-rights leader Charles Evers. He promised that blacks who did not observe the boycott would be "disciplined." To enforce such "discipline," boycott leaders stationed people known as "Black Hats" outside boycotted stores to record the identity of black customers. The names of boycott violators were read at NAACP meetings and published in a small newspaper. Such individuals were deemed "traitors," called demeaning names, socially ostracized, and received threatening phone calls. In a few instances, their homes were subjected to gunfire and other forms of vandalism. Such violence, concluded the Mississippi courts, could be attributed to the NAACP itself and turned an otherwise lawful political action, fully protected by the First Amendment, into an illegal conspiracy. This was so despite the fact that the NAACP’s leadership did not officially urge violence against those named by the Black Hats.
What does all this have to do with the Catholic Church’s criminal liability in the clergy-sexual-abuse scandal? Plenty. If the white merchants could prove the conspiracy alleged against the NAACP in the civil case, it would have been grist for the local prosecutor’s mill, since the acts for which the civil-rights group bore civil liability would also have justified a criminal prosecution. (Getting a criminal conviction would have been much tougher, though. In a criminal case, the facts must be proven beyond a reasonable doubt, while the establishment of civil liability requires a mere preponderance of the evidence — in other words, 51 percent on the side of the plaintiff.)
In this case, the state court’s remedy was a potentially bankrupting money judgment against the NAACP, rather than a criminal conviction. Given the court’s findings, the organization itself could have been criminally indicted along with the individuals acting, in a sense, in its name. However, no criminal case was brought. The state of Mississippi seemed content simply to bankrupt the NAACP and put it out of business. One aspect of the civil money judgment — a requirement that the national organization post a huge and ruinous bond before it could appeal — reached the US Supreme Court.
The Supreme Court’s analysis of the case made it clear that before a political-membership organization can be held liable for the unlawful acts of some of its members, it must be demonstrated that the illegal actors were operating for, in the name of, and with the approval of the organization itself. It found this not to be so in the Claiborne County boycott. The Court noted that while there are special dangers associated with "conspiratorial activity," consisting of a group of people who by agreement get together to commit a crime or crimes, "one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means." While individuals "may be held liable for the consequences of their violent deeds," there is a high burden in proving that the lawful collective conduct of the many was vitiated by the violence of the few. The Court made clear that anyone wanting to bankrupt — or worse, criminally indict — a political institution like the NAACP would have to prove that the illegal activity was sanctioned and directed by the organization itself. "A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees," concluded the Supreme Court in one of its more famous pronouncements — one that saved the NAACP from ruin.
DESPITE THE NUMEROUS "reptiles hidden in the weeds," if the Catholic Church chose to contest some of the civil lawsuits brought against it, it might actually be able to win — because there were, and are, so many more "freestanding trees" represented by the vast number of law-abiding clergy. And it would be a huge stretch to argue that Cardinal Law actually approved of the child abuse, even if he negligently allowed it to continue and inadvertently facilitated it by his re-assignment of offending priests. However, the Church has chosen to settle these civil cases, rather than litigate them to trial and verdict. (The motives for the Church’s settling rather than litigating must have been substantial, since under Massachusetts law the verdict against the Church in any single case would be limited to $20,000, the maximum a plaintiff may collect from a nonprofit, charitable organization. The Church has shown itself willing to pay more than $20,000 to each plaintiff, presumably to avoid the spectacle of a public trial.)
However, the burden for proving a criminal violation is much heavier than that for winning civil damages. The white merchants of Claiborne County were unable to prevail civilly against the NAACP despite the sporadic violence committed by some of its members, which was to some extent treated lightly by the organization’s leadership. This was because the NAACP was protected from the actions of a few lawbreakers by the associational rights conferred by the First Amendment upon the organization and its law-abiding members. By the same token, a logical extension of the 1982 Supreme Court ruling would almost certainly protect the Catholic Church from criminal liability growing out of the actions of even scores of sexually predatory priests who were indirectly aided, albeit unintentionally, by a secrecy-prone and perhaps too-trusting leader. The Church is, after all, a large organization engaged in activity every bit as protected as the political activity of the NAACP. Furthermore, the Church’s activity is protected not only by the First Amendment’s guarantee of associational rights, but also by its religious-liberty clause. Any prosecutor seeking to indict the Church, or its leader, would face an overwhelming legal burden.
Prosecutors should restrict themselves to indicting sexual predators against whom crimes can be proven beyond a reasonable doubt. The Church will have to heal itself, and Cardinal Law will have to live down his massive disservice to Catholicism and the people he is sworn to serve. All the irresponsible and ill-informed babble about indicting the Church and its leader should cease, and we should get on with the serious business of prosecuting only the guilty. Emotions understandably run high in instances as shocking as this still-unfolding, nationwide scandal. But raw emotion unchecked by prudence can lead to witch-hunts — something for which the Bay State is infamous. We shouldn’t let overzealous politicians and prosecutors use the pain racking the Catholic Church for their own purposes.
Harvey Silverglate is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1998) and a partner in the law firm Silverglate & Good.
