Another way to look at an unfavorable lawsuit

Responding to a headquarters request for a situation report, famed Marine Corps General Chesty Puller was reported to have said: “We are surrounded. We have [them] exactly where we want them.” When asked if they were retreating, Puller was also reported to have said: “No. We are rapidly advancing in a rearward direction.”

You just can’t beat a positive attitude.

Yet a positive attitude in the face of overwhelming odds may seem more like a denial of the reality around you. But that’s not true if you have confidence in the ultimate outcome. The immediate circumstances, as unfavorable as they may seem, are just that — circumstances not outcomes.

I was reminded of this recently when I received notification that the Eleventh Circuit Court of Appeals had denied D. James Kennedy Ministries’ appeal in our defamation and discrimination suit against the Southern Poverty Law Center and Amazon. The SPLC had defamed the ministry by putting us on its infamous "hate map" simply because of our biblical views on marriage. And because of that SPLC action, Amazon excluded the ministry from participating in Amazon's "Smile" charity program. Like General Puller’s possibly apocryphal statement, I can say we have them exactly where we want them.

I say this with a straight face because this is exactly where we expected to be at this point in our case. When we first filed suit against the SPLC and Amazon 4 years ago (2017), we knew our case was a long-shot defense of freedom and religious liberty. We knew the judge assigned to our case in Federal District Court would likely rule against us. Candidly, we had higher hopes at the Eleventh Circuit but knew this would be the most likely result.

Two reasons for optimism

So whence cometh my optimism? How can I say we have them exactly where we want them?

Our next step is an appeal to the U.S. Supreme Court, which we have already initiated, and that is the longest of long shots. Historically, the High Court only agrees to hear 4.7% of the petitions for writ of certiorari that it receives. Slim odds at best.

However, let me give you two reasons for optimism based on the Eleventh Circuit decision. First, while we lost our appeal on the Amazon portion of the case, the court’s opinion was astonishingly beneficial to Christians generally. This court ruled for Amazon on First Amendment grounds affirming in its opinion the “bedrock principle” that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” That “bedrock principle” applies to the world’s largest online retailer in this case and against us.

However, the constitutional logic of it must be universal. Therefore, it also applies to the many sole proprietor Christian bakers, photographers, and florists—some of whom have been denied justice thus far. So here at the Eleventh Circuit a high bar has been established that effectively protects religious free speech. It remains to be seen how much this important precedent will mean.

The second reason for optimism comes from the SPLC portion of the case—specifically the defamation rule as applied by the Eleventh Circuit. As you may know, the standard for proving defamation against public figures (of which DJKM is one) is higher, requiring proof of actual malice.

This comes from a Supreme Court case New York Times v. Sullivan from the 1960s. This standard has been decried across the political spectrum as having no constitutional basis. Why should some not have equal protection under the law simply because they are public figures?

Two justices agree

Our appeal to the United States Supreme Court is based solely on the unconstitutionality of Times v. Sullivan, and as it turns out, both Justices Thomas and Gorsuch agree with us. Both have written in recent opinions that the actual malice standard is constitutionally suspect and should be revisited by the Court. It does take four justices to grant a petition for writ of certiorari, but perhaps Justices Thomas and Gorsuch can persuade two more of their colleagues.

So here we are, four years into our quest to receive relief against the false and defamatory accusations made by the SPLC against DJKM and many other Christian and conservative groups. It has been a latter-day David v. Goliath battle from the beginning. The SPLC has half a billion dollars at its disposal. When last I checked, our financial resources are somewhat less than that.

Goliath must have been seen as a sure thing by the Philistines (and many Israelites). Yet, as David said: the battle is the Lord’s. That is so in this present case. Please join us in prayer that God would glorify Himself in our victory.

Whatever the outcome, if we remember that the ultimate outcome for all things will be decided before the throne of God, we have the victory already. This truth led John Quincy Adams to say: “Duty is ours; results are God’s.”

And our duty? It is to stand for truth and bear witness to Him who called us from out of darkness to walk in His marvelous light.