Dr. Newdow said Rev. Miles defamed him in a 2002 Web column that alleged that the atheist committed perjury when he told a federal court that his daughter sustained "emotional damage" by being forced to recite the pledge in school. Dr. Newdow denied ever making such a statement in or out of court.
Rev. Miles acknowledged mistakes in his reporting but asked that the libel suit be thrown out under a California law that provides for early dismissal of lawsuits about matters of public controversy. However, the appeals court held that Dr. Newdow showed the required likelihood that he would prevail if the case went to trial. Rev. Miles "used the word ‘perjury' no less than six times and unmistakably asserted that Newdow had committed that offense," Judge Paul Haerle wrote for a unanimous three-judge panel. "It is elemental that a charge of perjury, a crime, is libelous per se."
Judge Haerle also noted that a widely discussed Supreme Court case from 1991, Masson v. New Yorker, established that misquotation can give rise to a libel claim. Rev. Miles was represented by lawyers from a Michigan-based Christian legal group, the Thomas More Law Center. They argued that Dr. Newdow needed to present "clear and convincing evidence" of the libel, but Judge Haerle said that only evidence of "minimal merit" was required at this stage.
"Newdow got over the first hurdle in a long race," an attorney for Rev. Miles, Edward White III, told The New York Sun yesterday. He said the decision did not assure that Dr. Newdow would win the case if it goes to trial. Mr. White also said he would consider asking the California Supreme Court to take up the dispute.
Dr. Newdow, a Sacramento-based emergency room physician and attorney, said he was pleased with the ruling but was still debating whether to press the case against Rev. Miles. "I don't think I'm going to have trouble winning. I just don't know if he has anything, or if it's worth my trouble to go after," Dr. Newdow said in an interview. "This is a guy who lies constantly. It's a constant theme."
Dr. Newdow also faulted the Thomas More center for representing Rev. Miles pro bono. "Why would they put in $50,000 to defend a guy who violated the Ninth Commandment? Just because I'm an atheist and he's a Christian?" Dr. Newdow asked. "Why would they defend a liar?"
"This is a First Amendment issue," Mr. White said. He said Rev. Miles didn't deliberately lie, but simply misunderstood public information he found about the pledge case. "Where Rev. Miles made his error, as he admitted, was that it was his understanding that all documents filed in court are filed under oath," Mr. White said. Dr. Newdow said he believed Rev. Miles's column affected the handling of his 2004 Supreme Court case by becoming fodder for a question Justice Kennedy asked about the crusading atheist's relationship with his daughter.
The court ultimately overturned a 9th Circuit ruling in favor of Dr. Newdow. Five justices said that, as a divorced parent, he had no standing to bring the case because he did not have custody of his daughter. Three other justices rejected the suit on the merits, ruling that the Constitution is no bar to a pledge using the words "under God."
Dr. Newdow has two new suits pending before the 9th Circuit. One uses new plaintiffs to make the same argument against use of the pledge in public schools. The other suit challenges the use of the words "In God We Trust" on American currency.