From THE AMERICAN JURIST, November 1995, Vol. 9 No. 2 (cover story).
THE AMERICAN JURIST is the student newsmagazine of the Washington
College of Law at American University, Washington, DC, USA, and can be reached at
by e-mail at jurist@american.edu.
By Eric J. Ascalon, Editor-in-Chief, THE AMERICAN JURIST.
ON THE COVER is an excerpt from an article by Marc Fisher which appeared in the August 19, 1995 edition of The Washington Post. The excerpt contains quotations from the "sacred scriptures" of the "Church" of Scientology. According to the Church of Scientology, the words excerpted are not for your eyes. They are holy -- and must not be read by anyone who has not reached the higher orders of Scientology. Reporter Marc Fisher, in exposing those words to the general public, has become a marked man. He might expect to be investigated, intimidated and threatened in the "racketeering" fashion that has become the common manner in which the church deals with its critics.
Additionally, the Church of Scientology has included Marc Fisher as a defendant in a current lawsuit, which is pending in the United States District Court for the Eastern District of Virginia. The suit is against individuals who have exposed these sacred scriptures, which the church holds to be its trade secrets. Marc Fisher is being sued by the Church of Scientology in spite of the fact that he revealed a mere 46 words from Scientology's voluminous scriptures -- an amount that would certainly seem to fall within the parameters of the fair use doctrine. He is being sued in spite of the fact that he obtained these excerpts -- not through stealing them from church headquarters, where they are guarded in vaults -- but rather from an affidavit contained within an unsealed court file in California: a public document.
It is typical of the Church of Scientology to use lawsuits -- very many of which are dismissed as frivolous -- to intimidate, harass and quell its critics and defectors into silence. This scheme is even written into the church's doctrine. Scientology pays its estimated 100 lawyers $20 million annually to orchestrate these suits. Through participation in those of Scientology's many lawsuits which are clearly without merit and solely for the purpose of harassment, these lawyers are in violation of their obligation under the various rules of professional conduct in addition to provisions of the Federal Rules of Civil Procedure.
...75 million years ago, the leader of the Galactic Federation, Xenu, solved an overpopulation problem by freezing the excess people in a compound of alcohol and glycol and transporting them by spaceship to Teegeeack -- which we now know as Earth. There they were chained to a volcano and exploded by hydrogen bombs. The souls of those dead -- "body thetans" -- are the root of most human misery to this day. (Fisher, 1995).
Such are the beliefs of the members of the Church of Scientology, an organization founded in 1954 by pulp science-fiction writer L. Ron Hubbard. Hubbard, who died in 1986, preached in his book Dianetics that the individual could "clear" these "body thetans" from his or her existence through participation in a special series of courses. These courses, called "Auditing," would nullify the individual's "reactive mind," and as a result, he or she could obtain true happiness.
This true happiness, however, does not come cheap. Scientology maintains a worldwide network of campuses in which participants pay "fixed donations" to partake in the organization's required classes. The first class comes with a fee of between $500 and $1000 per hour. As the participant climbs the ladder of course work over a period of years, prices increase drastically. The most progressed stages, in which members become entitled to view the most sacred of Hubbard's scriptures, are said to cost in the tens of thousands of dollars each. According to former members of the organization (known as "defectors"), by the time a Scientologist reaches the highest echelons, the typical Scientologist will have forked over in the area of $300,000 to the church. From the very first stages, defectors and psychiatrists claim that members are hypnotized and brainwashed into a dependency on further coursework: an induced mind-control that can be as powerful as any drug addiction.
By some estimates, Scientology, which claims it has 8 million members worldwide, yields a revenue in excess of a half-billion dollars per year through a spider web of subsidiary and front organizations. Hundreds of millions in revenue are said to be held out in Swiss bank accounts. In 1985, high-level defectors had "accused Hubbard of having stolen as much as $200 million from the church." (Behar, 1991) In spite of a plethora of allegations and even prosecutions for fraud, misconduct, and a variety of criminal activities, in 1993, Scientology was granted tax-exempt status as a religious organization.
The story of this "religious" organization is filled with irony. For example, it was not until after a 1967 Internal Revenue Service ruling --which took away the organization's original tax-exempt status -- that Hubbard's "counselors started sporting clerical collars. Chapels were built, franchises became 'missions,' fees became 'fixed donations,' and Hubbard's comic-book cosmology became 'sacred scriptures,'" (Behar, 1991). The organization shouted "religion" and began to hide behind the First Amendment only after it saw the tax advantage.
To this day, when persons are introduced to Scientology, there is no mention or even hint of religion, but rather it is offered as a science to cure your emotional woes. Scientology, at the entry level, is spouted as "the psychology of the next hundred years," and L. Ron Hubbard is introduced merely as an author, not a deity (just examine one of the organization's nightly infomercials). It is not until one progresses to the intermediate levels that the bait and switch tactic occurs wherein Hubbard and his doctrine become the Almighty.
This article, however, is not intended to question the religious nature of Scientology. After all, whether you believe that Jesus walked on water, that Moses parted the red sea, or that Xenu, the leader of the Galactic Federation, landed on earth 75 million years ago, all is based essentially on faith and not proof. It would be an exercise in futility to attempt to prove that any one of those incidents is more probable than the others. It would also be unfair to put forth that simply because Christianity and Judaism have been around for a long long time, and Scientology is a relatively recent phenomena, that only the former two deserve tax exemption as religious organizations. In this article, I will not delve into the question of religious legitimacy.
"People who attack Scientology are criminals."
-L. Ron Hubbard
"[A]ll men have inalienable rights to think freely, to write freely, to talk freely their own opinions and to counter or utter or write upon the opinions of others."
-L. Ron Hubbard
Which is it Mr. Hubbard? The Church of Scientology's behavior indicates that they pay no heed to the latter quote, and all heed to the former. On May 6, 1991, Time magazine published an in-depth examination of the Church of Scientology entitled " Scientology: The Thriving Cult of Greed and Power," in which author Richard Behar, after conducting some 150 interviews, exposed many of the organization's evils. It is a story of kidnapping and mysterious suicides of defecting members, "Mafia-like" intimidation against critics, Scientology's covert war against its sworn enemy: psychiatry, and the organization's use of celebrity outreach programs and high-priced public relations firms to maintain a favorable image.
The Time article is absolutely startling. Through its revelations, the Church of Scientology appears every bit as sinister as a typical villain organization in an Ian Flemming novel. We learn of how eleven high-ranking members of the church, including Hubbard's wife, were arrested in the 1980s for "infiltrating, burglarizing and wiretapping more than 100 private and government agencies"; how the organization plotted "to plant operatives in the World Bank, International Monetary Fund and Export-Import Bank of the U.S."; and how the church has successfully disseminated copies of Hubbard's writings to millions of young children through thousands of our nation's public schools. (Behar, 1991)
The Time article goes on to examine what some have had to endure as a result of criticizing the church. One shocking example was the plight of Journalist Paulette Cooper:
Strange things seem to happen to people who write about Scientology. . . . Cooper wrote a critical book on the cult in 1971. This led to a Scientology plot (called operation Freak-Out) whose goal, according to church documents, was 'to get P.C. incarcerated in a mental institution or jail.' It almost worked: by impersonating Cooper, Scientologists got her indicted in 1973 for threatening to bomb the church. Cooper, who also endured 19 law suits by the church, was finally exonerated in 1977 after FBI raids on the church offices in Los Angeles and Washington uncovered documents from the bomb scheme. No Scientologists were ever tried in the matter. (Behar, 1991)
In an afterward to Behar's Time article, he discusses the tribulations he himself has had to endure as the result of writing his article critical of Scientology. Behar says that "at least 10 attorneys and six private detectives were unleashed by Scientology and its followers in an effort to threaten, harass and discredit [him]." A copy of his credit report had been illegally obtained from the Trans Union credit bureau. Behar says of his plight:
private investigators have been contacting acquaintances of mine, ranging from neighbors to a former colleague, to inquire about subjects such as my health (like my credit rating, it's excellent) and whether I've ever had trouble with the IRS (unlike Scientology, I haven't). (Behar, 1991)
In the month following the article's publishing, Scientology ran a newspaper ad series attacking Time for such wrongs as, "writing nice things about Hitler prior to World War II." Then followed a $416 million libel suit by the church against Time for the May 1991 article. That lawsuit is still pending. (Howard, 1991).
One former Scientologist who was interviewed for the Time article is Steven Fishman. In August of 1990, Fishman began serving a five year prison sentence for his participation in a financial scam. Fishman and his psychiatrist, Uwe Geertz, allege that the scam was tied to Scientology. In the Time article, Fishman claims that when he was arrested, the Church of Scientology ordered him to kill Geertz, "and then to do an 'EOC,' or end of cycle, which is church jargon for suicide." (Behar, 1991)
Because of the allegations in the Time article, the church subsequently sued Fishman and Geertz for libel in the United States District Court for the Central District of California. In 1994, the case against Fishman and Geertz was dropped. While the case was pending, however, the court file sat in the court's records office -- unsealed -- for in excess of a year before the judge granted a temporary sealing order. The court file contained an affidavit by Fishman that included the text of 100 pages of sacred Scientology scripture -- scripture that, according to the church, was for no one's eyes but those in the high ranks of Scientology. For the more than a year that the file was unsealed, each and every morning, at 8:30 sharp, two Scientology agents would show up at the courthouse. They would check out the Fishman file and guard it the entire day until closing time so that no one could view it.
During this period, however, a Washington Post staffer -- who knew the clerk at the court -- was able to circumvent the Scientology agents and obtain copies of material from the public file. (Carr, 1995) These pages contained portions of Scientology's sacred scriptures -- portions that had already been scattered throughout the internet by church defectors. On August 19, 1995, in Marc Fisher's Washington Post article entitled " Church in Cyberspace; Its Sacred Writ is on the Net. Its Lawyers Are on the Case," 46 words from the sacred scriptures -- which were retrieved from public court records -- were printed in order to illustrate the subject matter of the story. The Church of Scientology (under the name Religious Technology Center) has thus included The Washington Post and Marc Fisher as defendants in their suit for violations of trade secrets and copyrights in the United States District Court for the Eastern District of Virginia. (Take a look at Religious Technology Center v. Leiby,1995 WL 518740 (E.D.Va.)). From the pages of The Washington Post, the scripture excerpt has now made its way to the cover of The American Jurist as copied from microfilm found in the collections of The American University's undergraduate library. It is there for the sole purpose of illustrating the subject matter of the case Religious Technology Center v. Leiby (1995 WL 518740 (E.D.Va.)), which is a subject of this article. (See Editor's Note Below).
On October 30, 1995, Scientology attempted to enjoin The Washington Post, as part of the Religious Technology Center v. Leiby litigation, from publishing anything more on the disputed documents until determination is made on the trade secret and copyright issues. Scientologist and Chair of the Board of Boston University, Earle Cooley, argued for the church. He claimed that The Washington Post, by disseminating Scientology's sacred scriptures, was part of a conspiracy to damage the church (for if the scriptures of this tax-exempt "church" all entered the public domain, then why would people "donate" tens of thousands of bucks to read them?). (Carr, 1995) Using a "balancing of the harms" analysis for the temporary restraining order determination (under Blackwater Furniture Co. v. Seilig Manufacturing, 550 F.2d 189, 196 (4th Cir. 1977)), Judge Leoni Brinkema ruled against the church. Judge Brinkema put forth that (as per Richmond Newspapers, Inc. v. Virginia, 100 S.Ct. 2814 (1980)), "as print and electronic media are the public's chief source of information about trials and that media coverage of legal proceedings contributes to public understanding of the rule of law . . . [t]he public interest lies with the unfettered ability of the Post to report on the news." Religious Technology Center v. Leiby is still pending as of the date of this writing. It is just one of scores of similar Scientology suits pending in courts throughout the nation and world.
The purpose of the suit is to harass and discourage rather than to win. The law can be used to easily harass, and enough harassment on somebody who is simply on the thin edge anyway . . . will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly. -L. Ron Hubbard, Church of Scientology Directive
Beware of attorneys who tell you not to sue . . . the purpose of the suit is to harass and discourage rather than to win.
-L. Ron Hubbard
Obviously, Mr. Hubbard has never taken a course in legal ethics. The church and its 100 lawyers, however, appear to follow the above directive well. A quick LEXIS search will reveal hundreds upon hundreds of cases in which Scientology or one of its many front organizations has sued defecting members, critics, opposing lawyers and journalists -- usually for libel or a similar cause of action. The IRS alone has had to endure scores of frivolous Scientology suits. As the Time article suggests, "[o]ne legal goal of Scientology is to bankrupt the opposition or bury it under paper." (Behar, 1991) In that article, a former Scientology attorney, Joseph Yanny, claims that Scientology has "'so subverted justice and the judicial system that it should be barred from seeking equity in any court.'" Yanny quit representing the church in 1987 after "he was asked to help church officials steal medical records to blackmail an opposing attorney (who was allegedly beaten up instead). Since then, Yanny has been the target of death threats, burglaries, lawsuits and other harassment." (Behar, 1991)
In court decisions, judges have even characterized Scientology as "'schizophrenic and paranoid' and 'corrupt, sinister and dangerous.'" Some critics claim that Scientology is far too great a force for just private attorneys and citizens to deal with. They ask that the federal government take major steps to crack down on the church's illegal activities (as the governments of Germany and other European countries have been doing):
Federal agents complain that the Justice Department is unwilling to spend the money needed to endure a drawn-out war with Scientology or to fend off the cult's notorious jihads against individual agents. 'In my opinion the church has one of the most effective intelligence operations in the U.S., rivaling even that of the FBI,' says Ted Gunderson, a former head of the FBI's Los Angeles office. (Behar, 1991)
In light of the Waco incident, and in light of the recent vocal opposition to the interference with cult activities that has emerged because of Waco, it seems unlikely, from a political standpoint, that the current administration will take an active role (especially with the presidential elections just a year away).
Scientology is paying top notched P.R. firms big bucks to maintain a positive image for the church -- and they are quite successful, too. Ignorance about Scientology and its evils are widespread, both here and abroad. Governor Jim Edgar of Illinois had proclaimed March 13 "L. Ron Hubbard Day" before he learned who Hubbard was. (Behar, 1991) Senator John D. Rockefeller IV had even praised the Concerned Businessmen's Association of America, a Scientology front organization, on the Senate floor. (Behar, 1991) At the 240 year old Moscow State University, journalism students are now studying in the "L. Ron Hubbard Reading Room." (Castro, 1992). While today, students have no idea who Hubbard is, as the church expands its worldwide network, plans are underway to build a Scientology college in Moscow (I suppose in the church's eyes, the ruble is just as mighty as the dollar).
Without widespread federal intervention, it is seems unlikely that the church will reform its invidious practices. The legal community, however, along with the American Bar Association and state bar associations -- as its representatives -- have a obligation to assure that all members of the profession are upholding their professional ethical responsibilities. Section DR 7-102 of the ABA Model Code of Professional Responsibility establishes that, by penalty of sanctions, "[i]n his representation of a client, a lawyer shall not . . . [f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." Individual state rules of conduct are similar. Additionally, Federal Rule of Civil Procedure 11(b) requires that representations to court are "not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation," and are "nonfrivolous." The penalty here too, under FRCP 11(c), is sanctions.
These ethical and legal obligations, in addition to others, directly contradict the directives of Scientology, which claims that the purpose of the suit is to "harass and discourage rather than to win." Add the church's record of frivolous suits by the hundreds, and it certainly leads one to wonder how many of the church's 100 lawyers are ethically in the red. It is hard for me to believe that Joseph Yanny was the only Scientology attorney asked to take part in a blackmail scheme. Perhaps some have acquiesced. If justice cannot prevail over Scientology's misdeeds, then perhaps it can at least prevail over its attorneys' misdeeds. It is the duty of the ABA -- in conjunction with state bar associations -- to assure that Scientology's attorneys are operating within the scope of their ethical and legal obligations. This is no different from their obligation over every member of the bar. For the ABA and state bar associations to have any legitimacy when they charge that small town lawyer John Smith overbilled Mary Lou Jones by $75, then they certainly must at the very least investigate the big menaces, too. Scientology included.
1. Janice Castro, Scientology's Largesse in Russia, TIME, Apr. 13, 1992 at 19.
2. Lucy Howard & Gregory Cerio, Scientology Takes on Time, NEWSWEEK, June 10, 1991 at 8.
3. Marc Fisher, Church in Cyberspace, WASHINGTON POST, Aug. 19, 1995 at C1.
4. Richard Behar, The Thriving Cult of Greed and Power, TIME, May 6, 1991 at 50.
5. David Carr, A Religious Belief in Lawsuits, WASHINGTON CITY PAPER, Sept. 29, 1995 at 17.
6. Richard Leiby, Scientology Fiction: The Church's War Against Its Critics- and truth, WASHINGTON POST, Dec. 25, 1994 at C1.
--------------------SIDEBAR---------------------
Religious Technology Center v. Leiby also includes a defendant by the name of Arnie Lerma. Scientology accuses Lerma, an Arlington resident and former church member, of disclosing trade secrets and violating copyrights by posting the church's sacred scriptures throughout the internet. He is not alone. The internet newsgroup "Alt.religion.scientology" has become one of the most active in cyberspace. It includes thousands of postings by critics and defectors of Scientology -- many of which attempt to discredit the church and expose its evils. Some postings reveal stories of the church's kidnapping and imprisoning practices -- and even murder plots against former members and critics. Scientology's "Operating Thetans" (OTs), its training manuals, are the "sacred scriptures" that the church is attempting to protect as trade secrets. On a regular basis, they are anonymously posted and re-posted on the newsgroup. The anonymity of cyberspace permits individuals from doing this without retribution -- either legal or by the church. Recently, OTs and postings critical of the church have been mysteriously vanishing from the newsgroup. Church officials deny having connections to the vanishings. Many skeptical cyber-nerds -- who would otherwise have had no interest in bringing down the church -- are now actively partaking in the Scientology bashing and the re-posting of the OTs on the newsgroup in the name of freedom of speech in cyberspace. Arnie Lerma has become something of a folk hero in the newsgroup. His statement "I would prefer to die speaking my mind than to live fearing to speak," has become a sort-of mantra among the cult-bashers.