The plaintiff in Doe v. First Presbyterian Church U.S.A. (Okla. Dist. Ct. filed June 9, 2014), who was born in Syria but is a U.S. permanent resident, converted from Islam to Christianity at the First Presbyterian Church in Tulsa. But because “Under Sharia law, one who converts from Islam is to be put to death usually,” and he “continued to periodically travel to Syria,” “he knew that any publication or dissemination of his Christian beliefs could pose a danger to his life both in Syria and in the United States.” According to the plaintiff’s Complaint,

Therefore, in late 2012, Plaintiff and the Defendants repeatedly discussed the need for his prospective conversion to Christianity to remain strictly confidential. All of the Defendants were aware of the potential danger to Plaintiff and pledged strict confidentiality. In fact, in November 19, 2012, Mrs. Slick texted to Plaintiff that “I will call my pastor today and let you know how we will PRIVATELY work this out. Nobody will find out. We will make sure that your secret is safe!!”

Only after receiving absolute assurance from all of the Defendants that Plaintiff could be privately baptized into the Christian faith at the FPC, he agreed to be baptized on December 30, 2012, the same date on which he had already booked a flight for travel to Syria. All Defendants were aware of Plaintiffs travel plans to Syria and of the fact that he would be put to death in Syria if his conversion became known there.

On December 30, 2012, Plaintiff drove to the residence of Dr. and Mrs. Slick who then drove the Plaintiff in their own car to the FPC for his private baptism at FPC. Before and after his baptism by Dr. Miller, Plaintiff was assured that his baptism and conversion to Christianity would not be publicized. After being baptized and participating in his first worship service as a Christian, Plaintiff went to the airport for his previously scheduled trip to Syria [where he arrived on January 2, and where, according to a quote from his lawyer in a press account, he was picking up his bride -EV]….

On January 6, 2013, despite their assurances that Plaintiff’s baptism and conversion would remain private, the FPC published an announcement of his baptism complete with his name and the date of his baptism and caused such announcement to be placed on the worldwide web and the internet for distribution to and viewing by the entire world, including, but not limited to, the entire radical element of the Muslim world….

On January 7, 2013, the Slicks reported that they were “horrified” that the FPC had published the baptism announcement on the internet, expressed their appreciation of the danger to which they had exposed Plaintiff and stated that they would have the matter removed from the internet, which they did not do. In spite of the danger posed to Plaintiff, the Defendants refused to remove the Plaintiff’s baptism announcement from the internet until April, 2014, more than a year later.

In mid-January of 2013, plaintiff says, he was kidnapped in Damascus by “radical Muslims” — including his uncle — “who told Plaintiff that they had read of his Christian conversion on the internet and that they were aware that he had converted from Islam. Although Plaintiff denied that he had converted to Christianity, his accusers were undeterred because they repeatedly told him that the news of his baptism at FPC was on the internet.” They then tortured him for several days, and said they would “carry out his death sentence resulting from his conversion from Islam.”

Finally, after several days of being bound, beaten and tortured, Plaintiff was, again, taken out to be beheaded. When Plaintiff observed that video cameras had been set up to record his beheading, he knew that his death was imminent and was able to free his hands of the ropes that he loosened in the days leading up to his execution. By doing so, Plaintiff was able to forcibly take possession of a firearm that one of his captors held and turn it against his captors. In his escape, Plaintiff was forced to shoot and to kill his paternal uncle who was among his captors. For doing so, Plaintiff is now wanted for the crime of murder in Syria.

He then escaped to the U.S., but, “[s]ince returning to the United States, Plaintiff has received numerous death threats and continues to face a death sentence that could be imposed by radical Muslims in the United States at any moment.” He also claims that he has lost property, because he can’t go back to Syria to sell his residence or his car, or run his business; and he claims that he can no longer “visit his own son who resides in Syria.”

Plaintiff therefore sued the Church and James Miller, the pastor of the church for (1) negligently helping cause his physical, emotional, and financial injuries, by publicizing the baptism (in violation of their agreement), (2) breaching the contract not to disclose the baptism, and (3) “outrage,” often labeled “intentional infliction of emotional distress,” on the grounds that “The Defendants’ actions in immediately publicizing Plaintiffs baptism and conversion on the internet and keeping it posted for nearly a year-and-a-half with the full knowledge that it subjected Plaintiff to a death sentence under Sharia law is utterly atrocious and unacceptable in a civilized society.”

The church, according to the Tulsa World, disputes at least part of the allegations:

The lawsuit is brought by a person who received the Sacrament of Baptism before the congregation during a regular Sunday service at First Church. As the facts and truth of these events are revealed during the judicial process, it will become clear that First Church followed its normal procedures in baptizing this person and the claims made in the suit are not proper.

(Note that the statement, at least as quoted in the Tulsa World, doesn’t deny that some promise of confidentiality was made, though it does give a factual account of the circumstances of the baptism that differs from the plaintiff’s.)

My quick analysis: If the plaintiff can persuade the jury that he was attacked because of the publicity given to his conversion, and that the church had promised that the conversion would be kept confidential, or at least not noted on the Internet (where his evil uncle and others who knew him could see it), then he would have a good legal case. And this is so even though the vastly more culpable parties are (assuming plaintiff’s account is correct) the would-be murderers in Syria.

The breach of contract claim would be the clearest one. If plaintiff’s account of the facts is correct, they made a promise, there was legal “consideration” for the promise (he went through the conversion because of it), defendants breached the promise, and the damages were a foreseeable consequence of the breach.

That the damages also stemmed from criminal conduct by third parties doesn’t change this. If I promise to supply you with bodyguards, but fail to do that, and as a result you are attacked, I may be liable for breach of contract.

Likewise, say you and I agree that you’ll travel to Syria to promote my business’s products there. You’re hesitant, because I’ve learned that you’d converted from Islam to Christianity, and if people in Syria learn of that, you’ll be attacked. I therefore promise not to disclose your conversion — but I breach the promise and you get attacked. There, too, you could be liable for breach of contract as well. I don’t think the church situation is any different.

The negligence claim should also be sound, I think. If I do something that helps bring about foreseeable physical harm to you or your property, and I don’t take reasonable care to prevent that harm, I’m liable for negligence. (Again, this could include harm caused by third parties, if it’s foreseeable.)

To be sure, courts have rightly been hesitant to impose negligence liability based on constitutionally protected speech — for instance, when a movie or TV show supposedly stimulates copycat crimes, or crimes by people who go to watch the movie in a theater. I don’t think that, for instance, just disclosing that someone you know has converted from Muslim to Christianity should be actionable, even if that foreseeably causes attacks on that person. But if the defendants really agreed not to reveal this information, then they have waived their free speech rights on this score. Under Cohen v. Cowles Media (1991), such a waiver would authorize the imposition of liability for harm caused by breach of the agreement; and I think this would apply to negligence liability as well as breach of contract liability.

For a similar claim, albeit brought under the disclosure of private facts tort, see Doe v. Gangland Productions, Inc. (9th Cir. 2013). The plaintiff there was a “former prison gang member and police informant” who agreed “to be interviewed for an episode of [defendants’ documentary television serious] Gangland,” allegedly “on condition that his identity would be concealed in the broadcast.” The identity wasn’t concealed, which plaintiff claims exposed him to risk of attack and other harms; and the court said the disclosure of the identity could indeed be tortious (at least if the plaintiff was correct that the defendants breached their promise).

Finally, Doe v. Gangland Productions also allowed an intentional infliction of emotional distress claim (the analog to the Oklahoma plaintiff’s outrage claim) to go forward, again because of the broken promise coupled with the risk of violent retaliation: “[I]f Defendants agreed to conceal Plaintiff’s identity, but then intentionally disclosed it, Defendants’ actions would likely constitute extreme and outrageous conduct done with the intent to cause emotional distress.” (Here “intent” was likely used in its tort law sense of knowledge or purpose — so knowledge that the conduct would cause severe emotional distress would suffice, even if that wasn’t the defendants’ deliberate goal — and not in the common criminal law sense of purpose.)

Nor would it matter, I think, that the Oklahoma plaintiff went to Syria knowing that the place was dangerous. He had tried to mitigate that danger, he claims, by insisting that the defendants promise confidentiality, and he didn’t know that the defendants would break their promise. Again, if I pay you for bodyguard services while I’m doing something dangerous, but you fail to send the bodyguards and I get injured partly because of the absence of the bodyguard, you’re liable for breach of contract — and maybe negligence — even though I knew my underlying actions were dangerous. The whole point of our agreement, after all, was to diminish that danger. The same, I think, would apply here.

Again, all this assumes the jury believes the facts are as plaintiff says they are; but if that’s so, then the law would likely be on plaintiff’s side.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.