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Sacramento atheist Michael Newdow took plenty of grief from conservative commentators two years ago when he tried unsuccessfully to get the words “under God” taken out of the Pledge of Allegiance. But being called a liar in an online column was more than he could stand � and a Northern California minister could pay the price. This Monday, Newdow � who’s both a lawyer and an emergency room physician � is scheduled to appear in San Francisco’s First District Court of Appeal to argue that his libel suit against the Rev. Austin Miles should be allowed to proceed. Newdow claims Miles � a self-described “interdenominational chaplain” who writes conservative columns posted on the Internet � defamed him by accusing him of committing perjury before the Ninth Circuit U.S. Court of Appeals during the pledge case. Specifically, Newdow claims Miles accused him, in posts on two news service sites, of telling the court his young daughter suffered emotional distress as the result of being forced to recite the pledge in her classroom. Newdow insists he never said that. Instead, he says, he only argued that children, including his daughter, are unduly influenced when a state-run school leads them in a ritual proclaiming the existence of God. “Had Miles done as any reasonable person would have done � i.e., simply read the Ninth Circuit’s panel decision before writing his article,” Newdow wrote in court papers, “he would have quickly appreciated that his ‘view’ … was 100 percent wrong.” The Ninth Circuit in 2002 agreed with Newdow’s claim that the pledge, as recited in public schools, violated the First Amendment’s establishment clause. But two years later, the U.S. Supreme Court tossed Newdow’s suit, voting 5-3 that he didn’t have standing to bring it in the first place. Since then, Newdow has pursued the merits of his arguments by representing an unnamed “Roe” client in challenging the pledge again. That case is now pending before the Ninth Circuit, as is a separate case of Newdow’s challenging the inclusion of the words “In God We Trust” on American money. In his case against Miles, Newdow won a $1 million default judgment in superior court in June 2004 after Miles failed to respond to the initial complaint. That judgment was later set aside, though, after the trial court found Miles, through no fault of his own, had no actual notice of the suit. Immediately thereafter, Miles filed a motion to strike Newdow’s libel suit as an attempt to block free speech. Contra Costa County Superior Court Judge Steven Austin denied that motion last year. On appeal, Miles’ lawyers � Edward White III, associate counsel at the Thomas More Law Center in Ann Arbor, Mich., and Stockton attorney Mark Thiel � contend their client has shown his online comments were protected speech involving an issue of public interest. To overcome that presumption, they argue in court papers, Newdow � as an admitted public figure � would have to show by clear and convincing evidence that Miles acted with actual malice. White and Thiel contend Miles’ comments were based on information from other sources that he believed were accurate. “When all is said and done,” the two argued, “the dispute here is one of semantics and not of malicious falsehood.” That’s not what Newdow believes. He even accuses Miles of making up quotes purported to be Newdow’s own words. “This man has no compunction whatsoever about disseminating falsehoods and persisting in flouting the law,” Newdow, who is representing himself, wrote in court documents. “His meaningless claim that Newdow must have said something, somewhere � ‘on an Internet site … or during television interviews’ � that could be used to support his fabrication is nothing but drivel.” Newdow also argues his default judgment should be reinstated, contending Miles actively hid to avoid being served the suit. Newdow says he tried service by mail, made two attempts through a professional service company and hired a licensed private investigator, all to no avail. “The court will see,” he wrote, “that the only inference that can be drawn from the evidence in this case is that Miles sneered at our judicial system and intentionally avoided service.” Miles’ lead lawyer, White, couldn’t be reached for comment. Newdow, contacted in his Sacramento office, said Monday he mainly wants to clear his name. “I think many people think that what he wrote was true,” he said. “I’d like to restore my reputation.” The case is Newdow v. Miles, A109660.

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