
Opinion issued January 5, 2006











     





In The
Court of Appeals
For The
First District of Texas




NO. 01-04-00231-CV




HARVEST HOUSE PUBLISHERS, JOHN ANKERBERG, AND JOHN
WELDON, Appellants

V.

THE LOCAL CHURCH, AN UNINCORPORATED ASSOCIATION;
LIVING STREAM MINISTRY, A CALIFORNIA NON-PROFIT
CORPORATION; THE CHURCH IN HOUSTON, A TEXAS NON-PROFIT
CORPORATION, THE CHURCH IN ARLINGTON, A TEXAS NON-PROFIT CORPORATION; CHURCH IN BEAUMONT, A TEXAS NON-PROFIT CORPORATION; THE CHURCH IN CORPUS CHRISTI, A
TEXAS NON-PROFIT CORPORATION; THE CHURCH IN DALLAS,
INC., A TEXAS NON-PROFIT CORPORATION; CHURCH IN DENTON,
INC., A TEXAS NON-PROFIT CORPORATION; THE LOCAL CHURCH
IN EL PASO, A TEXAS NON-PROFIT CORPORATION; THE CHURCH
IN FORT WORTH, INC., A TEXAS NON-PROFIT CORPORATION; THE
CHURCH IN HUNTSVILLE, INC., A TEXAS NON-PROFIT
CORPORATION; THE CHURCH IN PLANO, A TEXAS NON-PROFIT
CORPORATION; CHURCH IN ODESSA A TEXAS NON-PROFIT
CORPORATION; THE CHURCH IN RICHARDSON, A TEXAS NON-PROFIT CORPORATION ; THE CHURCH IN SAN ANTONIO, INC., A
TEXAS NON-PROFIT CORPORATION; THE CHURCH IN TEXARKANA
A TEXAS NON-PROFIT CORPORATION; THE CHURCH IN TYLER, A
TEXAS NON-PROFIT CORPORATION; THE CHURCH IN FORT
STOCKTON, A TEXAS NON-PROFIT CORPORATION; CHURCH IN
LAREDO, A TEXAS NON-PROFIT CORPORATION; CHURCH IN
ALBUQUERQUE, A NEW MEXICO NON-PROFIT CORPORATION; THE
CHURCH IN ANAHEIM, A CALIFORNIA NON-PROFIT
CORPORATION; THE CHURCH IN ARCADIA, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN CERRITOS, A
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN
ATLANTA, INC., A GEORGIA NON-PROFIT CORPORATION; THE
CHURCH IN BATON ROUGE, INC., A LOUISIANA NON-PROFIT
CORPORATION; CHURCH IN BELLEVUE, A WASHINGTON NON-PROFIT CORPORATION; THE CHURCH IN BELLINGHAM, A
WASHINGTON NON-PROFIT CORPORATION; THE CHURCH IN
BERKELEY, THE CHURCH IN BIRMINGHAM, AN ALABAMA NON-PROFIT CORPORATION; CHURCH IN BOCA RATON, INC., A
FLORIDA NON-PROFIT CORPORATION; THE CHURCH IN BOISE, AN
IDAHO NON-PROFIT CORPORATION; THE CHURCH IN CAMBRIDGE,
INC., A MASSACHUSETTS NON-PROFIT CORPORATION; THE
CHURCH IN CARY, A NORTH CAROLINA NON-PROFIT
CORPORATION; THE CHURCH IN CHULA VISTA, A CALIFORNIA
NON-PROFIT CORPORATION; THE CHURCH IN COLLEGE PARK, A
MARYLAND NON-PROFIT CORPORATION; THE CHURCH IN
CYUPRESS, A CALIFORNIA NON-PROFIT CORPORATION; THE
CHURCH IN DAVIS, A CALIFORNIA NON-PROFIT CORPORATION;
THE CHURCH IN DIAMOND BAR, A CALIFORNIA NON-PROFIT
CORPORATION; THE CHURCH IN DUNN LORING, A VIRGINIA NON-PROFIT CORPORATION; CHURCH IN EL MONTE, A CALIFORNIA
NON-PROFIT CORPORATION; THE CHURCH IN EUGENE, AN
OREGON NON-PROFIT CORPORATION; THE CHURCH IN
FAIRBORN, AN OHIO NON-PROFIT CORPORATION; THE CHURCH
IN FRESNO, INC., A CALIFORNIA NON-PROFIT CORPORATION; THE
CHURCH IN FULLERTON CORPORATION, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN HUNTINGTON BEACH, A
CALIFORNIA NON-PROFIT CORPORATION; CHURCH IN IRVINE,
INC., A CALIFORNIA NON-PROFIT CORPORATION; CHURCH IN
JACKSON, A MISSISSIPPI NON-PROFIT CORPORATION; THE
CHURCH IN JACKSONVILLE, INC., A FLORIDA NON-PROFIT
CORPORATION; THE CHURCH IN KANSAS CITY, INC., A MISSOURI
NON-PROFIT CORPORATION; THE CHURCH IN LAFAYETTE, A
LOUISIANA NON-PROFIT CORPORATION; THE CHURCH IN LITTLE
ROCK, AN ARKANSAS NON-PROFIT CORPORATION; THE CHURCH
IN LONG BEACH, A CALIFORNIA NON-PROFIT CORPORATION;
CHURCH IN LOS ANGELES, A CALIFORNIA NON-PROFIT
CORPORATION; THE CHURCH IN MEMPHIS, A TENNESSEE NON-PROFIT CORPORATION; THE CHURCH IN MIAMI, INC., A FLORIDA
NON-PROFIT CORPORATION; CHURCH IN MILWAUKEE, A
WISCONSIN NON-PROFIT CORPORATION; THE CHURCH IN
MISSION VIEJO, INC., A CALIFORNIA NON-PROFIT CORPORATION;
THE CHURCH IN MONTEBELLO, A CALIFORNIA NON-PROFIT
CORPORATION; CHURCH IN MONTEREY PARK, A CALIFORNIA
NON-PROFIT CORPORATION; THE CHURCH IN MORENO VALLEY,
A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN
NASHVILLE, A TENNESSEE NON-PROFIT CORPORATION; THE
CHURCH IN NEWINGTON, INC., A CONNECTICUT NON-PROFIT
CORPORATION; THE CHURCH IN NORTH PROVIDENCE, A RHODE
ISLAND NON-PROFIT CORPORATION; THE CHURCH IN NUTLEY, A
NEW JERSEY CORPORATION; THE CHURCH IN OKLAHOMA CITY,
INC., AN OKLAHOMA NON-PROFIT CORPORATION; THE CHURCH
IN ORLANDO, A FLORIDA NON-PROFIT CORPORATION; THE
CHURCH IN PALATINE, AN ILLINOIS NON-PROFIT CORPORATION;
CHURCH OF GOD WHISH IS AT PHILADELPHIA, A PENNSYLVANIA
NON-PROFIT CORPORATION; THE CHURCH IN PLEASANT HILL, A
CALIFORNIA NON-PROFIT CORPORATION; CHURCH IN PORTLAND,
AN OREGON NON-PROFIT CORPORATION; THE CHURCH IN
PULLMAN, A WASHINGTON NON-PROFIT CORPORATION; THE
LOCAL CHURCH IN RALEIGH, A NORTH CAROLINA NON-PROFIT
CORPORATION; THE CHURCH IN REDDING, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN RIVERSIDE, A
CALIFORNIA NON-PROFIT CORPORATION; CHURCH IN
ROSEVILLE, A CALIFORNIA NON-PROFIT CORPORATION; THE
CHURCH IN SACRAMENTO, A CALIFORNIA NON-PROFIT
CORPORATION; THE CHURCH IN SALT LAKE CITY, A UTAH NON-PROFIT CORPORATION; CHURCH IN SAN DIEGO, A CALIFORNIA
NON-PROFIT CORPORATION; THE CHURCH IN SAN FRANCISCO,
INC., A CALIFORNIA NON-PROFIT CORPORATION; ASSEMBLY OF
THE SAN GABRIELLERS, A CALIFORNIA NON-PROFIT
CORPORATION; THE CHURCH IN SAN JOSE, A CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN SANTA CLARA, A
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN SANTA
CLARITA, A CALIFORNIA NON-PROFIT CORPORATION; THE
CHURCH IN SEATTLE, A WASHINGTON NON-PROFIT
CORPORATION; CHURCH IN SHREVEPORT, A LOUISIANA NON-PROFIT CORPORATION; THE CHURCH IN SPOKANE, A
WASHINGTON NON-PROFIT CORPORATION; THE CHURCH IN
STREAMWOOD, AN ILLINOIS NON-PROFIT CORPORATION; THE
CHURCH IN TACOMA, A WASHINGTON NON-PROFIT
CORPORATION; THE CHURCH IN TAMPA, INC., A FLORIDA NON-PROFIT CORPORATION; CHURCH IN TEMPE, INC., AN ARIZONA
NON-PROFIT CORPORATION; THE CHURCH IN THOUSAND OAKS, A
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN
TORRANCE, A CALIFORNIA NON-PROFIT CORPORATION; THE
CHURCH IN TUCSON, INC., AN ARIZONA NON-PROFIT
CORPORATION; CHURCH IN TULSA, AN OKLAHOMA NON-PROFIT
CORPORATION; THE CHURCH IN VICTORVILLE, A CALIFORNIA
NON-PROFIT CORPORATION; THE CHURCH IN VISTA, A
CALIFORNIA NON-PROFIT CORPORATION; THE CHURCH IN
WICHITA, INC., A KANSAS NON-PROFIT CORPORATION; CHURCH
IN YORBA LINDA, A CALIFORNIA NON-PROFIT CORPORATION,
Appellees




On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2001-65993




O P I N I O N
          This is a libel suit brought by a church against a publisher and two authors after
the church was included in a book about “religious cults,” as that term is defined in
the book.  The publisher and authors moved for summary judgment, which the trial
court denied. This interlocutory appeal followed.  See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(b) (Vernon Supp. 2005).  Because we agree that the passages in the
book that refer to the church are not, as a matter of law, defamatory, we reverse the
judgment of the trial court and render judgment that the church take nothing from the
publisher and authors.
BACKGROUND
A.  An Overview of the Encyclopedia of Cults and New Religions
          John Weldon and John Ankerberg [“the authors”] wrote a book entitled
Encyclopedia of Cults and New Religions [“the book”], which was published by
Harvest House Publishers [“the publisher”].  The book is 700 pages long.  It begins
with a section entitled “How to Use this Book,” which is followed by a 16-page
Introduction, 57 separate chapters that describe various religious groups, including
a chapter on appellees, The Local Churches and Living Stream Ministry [
collectively, “the church”], and concludes with a 66-page section entitled, “Doctrinal
Appendix.”
          The church is not named at all in the Introduction.  The chapter on the church
is 1 and 1/4 pages long.  Living Stream Ministry, the publishing voice of the church,
is mentioned once in the chapter.
          The Doctrinal Appendix mentions the church twice and Living Stream Ministry
once.  The first mention of the church is in a chart with 15 other religious groups
under the title “Different Concepts of God.”  The church is next mentioned in a list
of 50 other religious groups under the subcategory “Religions, Cults, and the Deity
of Christ.”  Living Stream Ministry is mentioned in a footnote, as the source of a
quote from one of the church’s founders.
PROPRIETY OF TRIAL COURT’S DENIAL OF SUMMARY JUDGMENT
          The authors and publisher moved for a traditional summary judgment,
contending that (1) the language of the book is not legally capable of any defamatory
meaning, (2) the allegedly defamatory statements were not made with “actual malice,”
and (3) the statements were protected by the free speech and press provisions of the
United States and Texas Constitutions.

A.  Standard of Review
          When reviewing the denial of summary judgment, we apply the same well-
known standards applicable to the granting of summary judgment. See Associated
Press v. Cook, 17 S.W.3d 447, 451 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
For their traditional summary judgment motion, the authors and publisher had the
burden to show that no genuine issue of material fact existed and that they were
entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Swilley v.
Hughes, 488 S.W.2d 64, 67 (Tex. 1972).  A defendant who conclusively negates at
least one of the essential elements of a cause of action is entitled to summary
judgment on that cause of action.  Swilley, 488 S.W.2d at 67.  Likewise, a defendant
who conclusively establishes each element of an affirmative defense is entitled to
summary judgment.  Id.  Once the movant has established a right to a summary
judgment, the burden shifts to the nonmovant. Marchal v. Webb, 859 S.W.2d 408,
412 (Tex. App.— Houston [1st Dist.] 1993, writ denied). The nonmovant must
respond to the motion for summary judgment and present to the trial court any issues
that would preclude summary judgment.  City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 (Tex. 1979); Marchal, 859 S.W.2d at 412.  The summary
judgment should be granted if any of the theories advanced in the motion for
summary judgment is meritorious.  See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d
623, 626 (Tex. 1996).
B.  Is the Language of the Book Defamatory as to the Church?
          In their first issue on appeal, the publisher and authors contend that the
language of the book cannot, as a matter of law, be defamatory.  To maintain a cause
of action for defamation, the plaintiff must prove that the defendant (1) published a
statement (2) that was defamatory concerning the plaintiff (3) while acting with either
actual malice, if the plaintiff was a public figure, or negligence, if the plaintiff was
a private individual, regarding the truth of the statement.  WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998).  Whether a publication is capable of
being defamatory is initially a question of law to be determined by the court.  Turner
v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000).  To make this
determination, the trial court should consider whether the words used are reasonably
capable of defamatory meaning by considering the allegedly defamatory statement
as a whole.  See Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654-55
(Tex. 1987).  The determination is based on how a person of ordinary intelligence
would perceive the entire statement.  See also Bentley v. Bunton, 94 S.W.3d 561, 579
(Tex. 2002).  This question is submitted to a jury only if the contested language is
ambiguous or of doubtful import.  See Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884
(Tex. 1970).
          1.  Is the Introduction Defamatory?
          The church claims that it has been defamed by certain references made in the
book’s Introduction.  Specifically, paragraphs 15-17 of the church’s petition allege:
15.  Within one year of the date of this Complaint, defendant published
the Encyclopedia.  The Encyclopedia consists primarily of descriptions
of various religious organizations identified by the authors as cults. 
Preceding these descriptions is a lengthy, introductory section which
informs the readers that, all of “the groups contained herein deserve the
title” “cult.”  Under a subheading entitled “Characteristics of Cults,” the
introduction offers the reader a numbered list of negative attributes that
the authors attribute to the “cults” described in the text.  The
introduction also includes many other statements attributing misdeeds
and other approbations to the groups listed in the Encyclopedia.
 
16.  Among other things, the Encyclopedia’s introduction specifically
attributes to “cults” and therefore to Plaintiffs’ the following:
 
A.   Subjecting members to “physical “harm” (Page XXIV).
B. “[F]raud or deception concerning” “fundraising” and
“financial costs.” (Page XXIV).
C.  “[A]cceptance of shamanism.” (Page XXIV).
D.  “[E]ngaged in drug smuggling and other criminal activity,
including murder.” (Page XXV).
E.  “[D]enied their followers blood transfusions and medical
access.” (Page XXV).
F. “[E]ncouraged prostitution.” (Page XXV).
F. “[S]ometimes raped women.” (Page XXV).
G. “[M]olested children.” (Page XXV).
H.  “[B]eaten their disciples.” (Page XXV).
I.  “[P]ractices black magic and witchcraft.”  (Page XXV].
 
17.  The Encyclopedia’s introduction expressly and implicitly imputes
these “Characteristics of Cults” to the religious organizations described
in the text.  The language, layout, tone and tenor of the introduction is
designed to, and does, cause a reasonable reader to conclude that the
organizations described in the Encyclopedia were selected for inclusion
therein precisely because they possess the “Characteristics of Cults” and
commit the misdeeds listed.  Furthermore, the authors expressly
characterize their descriptions of Plaintiffs as factual: “Facts are facts.” 
(Page XIX).

          In their motion for summary judgment, the publisher and authors argue that the
Introduction section of the book cannot be defamatory, as a matter of law, because
(1) “the foundational context of the Encyclopedia centers on doctrinal and apologetic
issues of theology,” and (2) the introduction cannot be reasonably interpreted to
defame every group in the book.  To determine these issues, we consider first whether
the label “cult” is actionable.  Then, we turn to the issue of whether the negative
attributes and practices attributable to “cults” are actionable.
 
                    a.  Is being labeled a “cult” actionable?
          The Introduction of the Encyclopedia defines a “cult” as “a separate religious
group generally claiming compatibility with Christianity but whose doctrines
contradict those of historic Christianity and whose practices and ethical standards
violate those of biblical Christianity.”  In their motion, the publisher and authors
claim that the Introduction “centers on doctrinal and apologetic issues.”  We agree.
Under the Establishment Clause of the First Amendment, civil courts are prohibited
from deciding theological matters, or interpreting religious doctrine, or making
matters of religious belief the subject of tort liability.  See Serbian Eastern Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 707, 96 S. Ct. 2372, 2379 (1976).
          The issue of whether a group’s doctrines are compatible with Christianity
depends upon the religious convictions of the speaker.  “Whether [a] statement of
religious doctrine or belief is made honestly or in bad faith is of no moment, because
falsity cannot be proved.”  Tilton v. Marshall, 925 S.W.2d 672, 679 (Tex. 1996).  “As
such, no jury can be allowed to determine [the truth or falsity of one’s religious
beliefs] for ‘[w]hen triers of fact undertake that task, they enter a forbidden domain.’”
Id. at 680 (quoting United States v. Ballard, 322 U.S. 78, 86, 64 S. Ct. 882, 886
(1944)).
          In Tran v. Fiorenza, 934 S.W.2d 740, 742 (Tex. App.—Houston [1st Dist.]
1996, writ denied), the plaintiff, a Catholic priest, sued Bishop Fiorenza for 
defamation because the bishop wrote a letter in which he stated that the plaintiff had
been excommunicated by the Catholic church.  This Court held that it could not hear
the plaintiff’s defamation claim because, to decide whether a tort had, in fact,
occurred, we would have to decide whether the plaintiff had been excommunicated,
a matter of ecclesiastical concern.  Id. at 744.  The First and Fourteenth Amendments
of the United States Constitution prohibit civil courts from deciding such
ecclesiastical matters.  Id. at 743.
          Therefore, we conclude that being labeled a “cult” is not actionable because the
truth or falsity of the statement depends upon one’s religious beliefs, an ecclesiastical
matter which cannot and should not be tried in a court of law.  See Sands v. Living
Word Fellowship, 34 P.3d 955, 960 (Alas. 2001) (holding that reference to church as
“cult” and church member as “cult recruiter” not actionable as defamation because
statements convey religious belief and opinion and are not capable of being proven
true or false).
          b.  Is the description of the negative characteristics of a cult actionable?
          The Introduction of the book contains a list of 12 “characteristics of cults.” 
The 12 characteristics of cults include the following.
1.  Despite the claim to be a friend of Christianity, the new religious are
rejecting or hostile to Christianity.
 
2.  Despite the claim to allow for individual expression and to respect
members as individuals, we discover a destructive authoritarianism and
sanction-oriented mentality: members must obey explicitly or be
punished or ex-communicated.
 
3.  Despite a claim to interpret the Bible properly, the Bible is
systematically misinterpreted, either through additional revelation that
distorts proper biblical interpretation or through alien (mystical,
symbolic, subjective) methods of interpretation.
 
4.  Despite a claim to care for members, members are often subject to
psychological, physical and spiritual harm through cult dynamics that
reject biblical, ethical and pastoral standards.
 
5.  Despite a claim to allow independent thinking, there is a restriction
of independent thought, a rejection of reason and logic, and often
unquestioning obedience to the leader or organization.
 
6.  Despite public claim for openness and tolerance to other religions,
exclusivism and intolerance are taught privately.
 
7.  Despite the claim for independent verification and objective evidence
in support of a group’s beliefs and practices, the evidence is almost
exclusively based in undocumented claim or the subjective
realm—mystical experience or powerful occult experience.
 
8.  Despite the claim to offer true spirituality and a genuine experience
of God or ultimate reality, and despite the claim not to be occult, what
is offered is often occult practices and beliefs.
 
9.  Despite the claim for accurately representing one’s history and to
give a true portrait of a group’s leader(s), there is a
distortion—reinvention and cover-up—of a group’s history and leader
for purely advantageous interests.
 
10.  Despite the claim to trust others, cults may be paranoid or
persecution conscious, and they may be oppositional or alienated from
the culture, having beliefs, values and practices opposed to those in the
dominant culture.
 
11.  Despite the claim for honesty there is use of intimidation or
deception on both members and outsiders.  There is often fraud or
deception concerning a group’s true teachings, the life of the founder,
the group’s history, fund-raising, front groups and financial cost.

          The section of the book on the “characteristics of cults” concludes with the
following paragraph, upon which most of the church’s libel claims are based:
When people are manipulated in different ways for ulterior motives, as
cults are shown to do in this Encyclopedia, is not this to be condemned? 
Those cult leaders or gurus who have encouraged their followers to
oppose moral convention, denied their followers blood transfusions and
medical access, encouraged prostitution for making converts, sometimes
raped women, beaten their disciples, molested children, practices black
magic and witchcraft, engaged in drug smuggling and other criminal
activity, including murder—do they not deserve the condemnation of us
all?  And such things have occasionally happened even in what many
people regard as the “respectable” cults.

          The church contends that some of the conduct mentioned in connection with
the characteristics of cults—prostitution, rape, beating, molesting children, drug
smuggling, and murder—are facts that can be proven false, and, therefore, are
actionable under Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695,
2706–07 (1990) (holding that statements of “opinion” may be actionable if containing
facts provable as false).
          The publisher and authors, however, argue that the characteristics of
cults—including the criminal acts that the church contends are provable as false
under Milkovich—“cannot reasonably be interpreted to defame every group in the
book.”  In other words, the publisher and authors argue that the second element of a
defamation claim—that a defamatory statement was made concerning the
plaintiff—cannot be met.  We agree.
          If a statement does not concern appellants, it cannot defame them, nor can it
injure their reputations.  See Newspapers Inc. v. Matthews, 339 S.W.2d 890, 893
(Tex. 1960).  For a plaintiff to recover for the publication of an allegedly libelous
statement, the asserted libel must refer to some ascertained or ascertainable person
and that person must be the plaintiff.  Id.  The publication need not make direct
reference to the plaintiff individually; reference may be indirect, and it is not
necessary that every listener understand it, so long as there are some who reasonably
do so.  Davis v. Davis, 734 S.W.2d 707, 711 (Tex. App.—Houston [1st Dist.] 1987,
no writ).
          Under the group libel doctrine, a plaintiff has no cause of action for a
defamatory statement directed to some or less than all of the group when there is
nothing to single out the plaintiff.  Eskew v. Plantation Foods, Inc., 905 S.W.2d 461,
462 (Tex. App.—Waco 1995, no writ); Wright v. Rosenbaum, 344 S.W.2d 228, 231-33 (Tex. Civ. App.—Houston 1961, no writ) (holding that statement that “one of the
four ladies” stole dress, but not naming guilty person, was not slanderous of any
particular person); Bull v. Collins, 54 S.W.2d 870, 871-72 (Tex. Civ. App.—Eastland
1932, no writ) (holding that statement that either A or B stole the money, without
specifying guilty party, not slanderous); Harris v. Santa Fe Townsite Co., 125 S.W.
77, 80 (Tex. Civ. App.—1910, writ ref’d) (holding that statement that an unnamed
“band of nine women” from South Silsbee cut a fence was not libelous because 15
women lived in South Silsbee).
          In Eskew, the chief executive officer of the defendant company stated in the
newspaper that “[I]rregularities in the company’s maintenance department prompted
personnel changes. . . .  Everyday we hire people, let people go and people quit . . .
.  I don’t want to take the chance of coloring the innocent with any kind of accusation. 
I don’t think everyone we let go had something to do with this.  But some of those we
let go, we think, were involved.” 905 S.W.2d at 462.  The plaintiff, one of the
employees the defendant company had fired, sued for libel, contending that the chief
executive officer’s statement identified plaintiff as a wrongdoer even though he was
not named in the story.  Id.  The court of appeals stated that “[the chief executive
officer’s] statement did not malign the entire group and is clearly referable only to an
unidentified portion of a group.”  Id. at 463.  As such, summary judgment was proper
for the defendant company.  Id. at 464. 
          Thus, in order for an alleged defamatory statement that is directed to an
unidentified group of individuals to be actionable, it must create the inference that all
members of the group have participated in the activity that forms the basis of the libel
suit.  If the statement refers to some, but not all members of the group, and does not
identify to which members it refers, it is not a statement of and concerning the
plaintiff.
          The church argues that, under Gibler v. Houston Post Co., 310 S.W.2d 377,
385 (Tex. App.—Houston [1st Dist.] 1958, writ ref’d n.r.e.), the statements regarding
the alleged criminal acts are actionable, even if the church is not directly mentioned
in connection with the criminal acts.  Under Gibler, a libel plaintiff may maintain a
cause of action, even if not named in the publication, if the language of the
publication and the surrounding circumstances are such that friends and
acquaintances of the plaintiff recognize that the publication is about the plaintiff.  Id. 
In its petition, the church alleges that the book has defamed every group named
therein.  Specifically, the church alleges that the Introduction of the book “is designed
to, and does, cause a reasonable reader to conclude that the organizations described
in the Encyclopedia were selected for inclusion therein precisely because they possess
the ‘Characteristics of Cults’ and commit the misdeeds listed.”
          To the contrary, the Introduction of the book specifically states that “[t]he list
[of the characteristics of a cult] is not exhaustive.  Not all groups have all the
characteristics and not all groups have every characteristic in equal measure. . . .  ” 
The appropriate inquiry in determining what a reasonable reader would believe, for
the purposes of libel, is objective, not subjective.  See New Times v. Isaacks, 146
S.W.3d 144, 162 (Tex. 2004). The question is not whether some actual readers were
misled by the publication, as they inevitably will be, but whether the hypothetical
reasonable reader could be.  Id. Moreover, the prefatory language “[t]hose cult
leaders or gurus” is restrictive—focused only upon those leaders who commit such
acts, not on all leaders or gurus.  In sum, considering the Introduction as a whole, we
cannot conclude that a reasonable reader could believe that all groups named in the
book participate in the criminal activities that plaintiffs claim as the basis of their
libel action.  No reasonable reader could conclude that the book accuses the church,
and, in fact, every other church named in the book, of rape, murder, child molestation,
drug smuggling, etc.  As such, the allegedly libelous statements in the Introduction
are not “of and concerning the church” and are not actionable.
          2.  Is the Doctrinal Appendix Defamatory?
          The church also contends in its petition that it has been defamed by certain
portions of language in the Doctrinal Appendix.  Specifically, paragraph 18 of the
petition alleges the following:
18.  The Encyclopedia also includes a section entitled “Doctrinal
Appendix.”  This Section attacks the groups included in the
Encyclopedia, including Plaintiffs with further defamatory statements
including the following:
                    A.  The groups included in the book “accept occult powers.” (Page 708);
B.  The groups included in the book are “associated with idolatry” and
“universally promote idolatry” with its inevitable outcome “human
sacrifice.” (Pages 710, 721);
C.  The groups included in the book engage in “murder,” “child
sacrifice,” “prostitution,” and “snake worship” (Pages 714, 722).

          In their motion for summary judgment, the publisher and authors argue that the
Doctrinal Appendix section of the book cannot be defamatory, as a matter of law, for
the same reasons that the Introduction is not defamatory, i.e., because (1) “the
foundational context of the Encyclopedia centers on doctrinal and apologetic issues
of theology” and (2) the Doctrinal Appendix cannot be reasonably interpreted to
defame every group in the book.  To determine these issues, we consider first whether
being accused of “accepting occult powers” and “promoting idolotry” is actionable. 
Then, we turn to the issue of whether the negative attributes and practices attributable
to “cults” are actionable.
                    a.       Is being accused of “accepting occult powers” and “promoting
idolatry” actionable?

          The Doctrinal Appendix defines “idolatry” as the “worship of false gods and
spirits” and occult [demonic] powers and practices are associated, in the text, with
idolatry.  The section of the Doctrinal Appendix on the occult and idolatry is entitled
“The Occult: The Modern Spiritual Counterfeit.”
          As with the definition of the term “cult,” which we discussed earlier, whether
someone worships a false god or accepts occult powers and practices depends upon
the speaker’s religious beliefs.  “To avoid conducting ‘heresy trials,’ courts may not
adjudicate the truth or falsity of religious doctrines or beliefs.”  Tilton, 925 S.W.2d
at 678-79.  “Heresy trials are foreign to our Constitution.  Men may believe what they
cannot prove.  They may not be put to the proof of their religious doctrines or
beliefs.”  Unites States v. Ballard, 322 U.S. 78, 86-87, 64 S. Ct. 882, 886-87 (1944).
          Because the statement concerns the speaker’s religious beliefs, which cannot
be proved true or false, an allegation that one is an idolator and accepts occult powers
is not actionable.
          b.       Are the statements regarding human sacrifice, murder, child
sacrifice, prostitution, and snake worship actionable?

          The publisher and authors argue that the occult practices that are mentioned in
the Doctrinal Appendix, “cannot reasonably be interpreted to defame every group in
the book.”  In other words, the publisher and authors argue again that the second
element of a defamation claim—that a defamatory statement was made concerning
the plaintiff—cannot be met.  Again, we agree.
          None of the passages alleged to be defamatory in the Doctrinal Appendix
mention the church at all.  The occult practice of human sacrifice, which gives rise
to one of the church’s libel allegations, is mentioned in the following passage:
As [the Bible verses referenced earlier] suggest, in ancient Israel occult
practices were associated with idolatry (worship of false god and spirits) and
inevitably led to human sacrifice, as is increasingly occurring in the Western
world today. 

          This passage does not accuse the church, or indeed any of the organizations
named in the book, of human sacrifice.  Instead, it points out that, in ancient Israel,
idolatry led to human sacrifice, in the authors’ opinion.  As such, the statement
regarding human sacrifice is not of and concerning the church.
          The occult practices of child sacrifice and murder, which give rise to another
of the church’s libel allegations, are mentioned in a section of the Doctrinal Appendix
that lists what the authors refer to as “the capacities or methods of fallen angels
[demons].”  Again, the passage does not refer to the church at all, or any other
organization in the book.  There is nothing in this list of “demonic powers” to lead
a reasonable reader to conclude that the church possesses or uses these powers to
commit child sacrifice or murder.  As such, the passage in the Doctrinal Appendix
that refers to child sacrifice and murder is not of and concerning the church.
          The occult practices of child sacrifice, prostitution, and snake worship are
mentioned in the following passage from the Doctrinal Appendix.
Idolatry (Gr. eidololatria).  Idolatry in ancient times included two forms of
departure from the true religion: the worship of false gods (whether by means
of images or otherwise); and the worship of the Lord by means of images.  All
the nations surrounding ancient Israel were idolatrous. . . .  The gods had no
moral character whatsoever, and worship of them carried with it demoralizing
practices, including child sacrifice, prostitution and snake worship. . . .

          Again, this clearly does not refer to the church or any of the organizations
named in the book.  It is a historical reference to ancient Israel and what the authors
perceive as the result of idolatry in that day and age.  As such, it is not a statement of
and concerning the church and is not actionble.
          In sum, considering the Doctrinal Appendix as a whole, we cannot conclude
that a reasonable reader would believe that all groups named in the book participate
in the “occult practices” that plaintiffs claim as the basis of their libel action.  Because
the allegedly libelous statements in the Doctrinal Appendix are not of and concerning
the church, they are not actionable.
 
          3.  Is the Chapter regarding “The Local Church” Defamatory?
          The church does not allege that the chapter on it contains defamatory language. 
Instead, it argues that the fact that there is a chapter on it would lead a reasonable
person to conclude that it “routinely engage[d] in the activities set forth in paragraph
16 and 18 above.”  Specifically, the petition alleges the following:
19.  The Encyclopedia contains a section entitled “The Local Church.” 
This section also expressly identifies Living Stream Ministry.  When
read in conjunction with the Encyclopedia’s introduction and appendix,
this section conveys false and defamatory message [sic] that the Local
Church, the Churches, and Living Stream Ministry routinely engage in
the activities set forth in paragraph 16 & 18 above.  The section of the
Encyclopedia entitled “The Local Church” is reasonably read in
conjunction with and in the context of the Encyclopedia’s introduction
and appendix, including the Characteristics of Cults” subsection.  The
contents of these sections, including the defamatory statements
described herein, were understood by readers to refer to and concern the
Plaintiffs herein.
 
20.  The above-described statements are defamatory per se in that they
falsely impute immoral, illegal and despicable actions to Plaintiffs.  In
truth and in fact no Plaintiff has ever engaged in such actions.  The false
and defamatory statements set forth herein expose Plaintiffs to hatred,
contempt, ridicule, and financial injury.

          The gist of the church’s complaint is that, by calling it a “cult” and including
a chapter on it in the book, the publisher and authors have accused it of every
“immoral, illegal and despicable action” mentioned in the book.  However, as we
stated earlier, under the group libel doctrine, a plaintiff has no cause of action for a
defamatory statement directed to some or less than all of the group when there is
nothing to single out the plaintiff.  Eskew, 905 S.W.2d at 462.  We have already held
that nothing in the book singles out the church as having committed the “immoral,
illegal, and despicable” actions alleged in its petition.  Simply being included in a
group with others who may have committed such “immoral, illegal, and despicable”
actions does not give rise to a libel claim.
CONCLUSION
          Because the allegedly libel statements are not defamatory, as a matter of law,
we sustain the publisher and authors’ first issue on appeal.  Accordingly, we need not
address the remaining issues and decline to do so.
          We reverse the judgment of the trial court and render judgment that the church
take nothing from the publisher and authors.                                                     
                                                             Sherry Radack
                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

