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Scientology Defendants Appeal -- Denial of Anti-SLAPP Motions to Dismiss

Discussion in 'Monique Rathbun' started by JBWriter, Apr 5, 2014.

  1. tetloj

    tetloj Silver Meritorious Patron

    As I somewhat expected. TX Lawyer is not painting a very rosy picture for the Rathbuns prevailing

    (sorry - no can do linkies from my work PC - go to http://tonyortega.org/2014/09/18/ra...ppeal-before-hearing-next-week/#disqus_thread for the full conversation

    TX Lawyer
    Thoughts and observations on the Church’s reply brief . . .
    1. Somebody sure is sensitive about that IRS tax exemption. It’s hardly the most pertinent issue in the case, and wasn’t exactly the centerpiece of Mrs. Rathbun’s appellate brief, but the Church puts it right at the front of the reply brief.
    2. It seems like a red herring to claim that Monique should have distinguished between the conduct of the Squirrel Busters and the conduct of the private detectives. Since the Church directed both of them, and they’re trying to make the Church liable for directing their activities, the actions of both groups would seem to be equally germane to the case. And saying that the investigators’ actions “were undertaken to investigate, not to protest or confront” kind of throws those guys (and by extension, the Church?) under the wheels, as it would mean that they’re not engaging in the exercise of free speech at all. If it ain’t free speech, it ain’t protected by anti-SLAPP.
    3. The argument that the commercial speech exemption “should be limited to claims challenging the advertisement of a party’s goods or services” may or may not prevail, but it’s not supported by the text of the statute or any case law interpreting it. It seems hard for Scientology to weasel out of the goods and services category when they explicitly said that they were targeting Marty Rathbun for having offered his own auditing services.
    4. All that said, my sense is that Scientology has the better overall arguments here. Anti-SLAPP is a powerful tool, and protesting is core First Amendment activity. I will be pleasantly surprised if the court of appeals affirms the trial court’s decision or remands for further consideration.



    • Tony Ortega
      I’m trying to understand how leasing a house in order to train cameras on the Rathbuns and their guests 24 hours a day was a form of “protest.” Or hiring someone to place game cameras on trees so they could watch the Rathbun home, and instructing that person to pretend to be a friend so he could get into their home — again, how that was a form of First Amendment protest. Or sending a private investigator to confront Monique’s family members with binders of damaging information about Marty was a form of protest. I’m not seeing it.
      • Frodis73
        Amen!
      • 1.1
        And let us also not forget the posting of an ecclesiastical dildo to ones work place. The highest and most scared form of reverent protest for over 75 trillion years…
        http://otviiiisgrrr8.com/2013/09/13/scientology-leader-david-miscavige-and-his-rtc-ecclesiastical-dildos/
        • TX Lawyer
          But is there any evidence in the record linking it to any of the defendants? Without that kind of evidence, it might as well have never happened, so far as the appellate court is concerned.
        • Lone Star
          Unfortunately that hasn’t been proven to have been “sent by the church”. Of course we know it was, but the court can only consider proven, factual evidence. It’ll probably never be proven, unless the person who did it comes forward one day in the future. Or the person who ordered it comes……oh never mind. LOL…
        • Stacy
          Ecclesiastical dildo sent to Monique Rathbun’s workplace? Ok, I’m new enough here that I’m not sure if this is just the Bunkerite joke slang for whatever was actually sent? Or did CoS really send her a dildo? And if so, what the hell made it ecclesiastical?
      • TX Lawyer
        Their argument is that the surveillance by the PI’s was part of a pre-suit investigation by the Church into whether Marty was violating church copyright, which they say would be protected as “the right to petition” under the statute. But looking at the statute, it still only protects “communications” under the petitioning rubric — see section 27.001(4) at the link below:
        http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.27.htm
        So, there’s a good argument that all the non-protesting PI stuff is indeed outside the scope of the anti-SLAPP statute. That said, it certainly is an act of speech to “confront family members” with information (even damaging information), and if the subject matter is a “matter of public concern” as defined by section 27.001(7) (e.g., it’s about health or safety, or about a public figure) then it would fall within the scope of the statute.
        The problem I’m having is that so much of this is tied up with the protesting activity. The brief cites California case law (because the Texas statute is fairly new and the state courts haven’t developed any case law on point) for the proposition that if a cause of action is based on both protected and unprotected activity, then the whole thing is still subject to anti-SLAPP treatment unless the protected activity is “merely incidental” to the unprotected activity. That makes sense to me. A claimant should not be able to get out of the anti-SLAPP framework just by alleging that some of the conduct connected with the First Amendment activity was not protected as free speech — e.g., the picketers stepped onto my private property, or their chants woke us up at the crack of dawn.
        The Squirrel Busters’ conduct was appalling, and that’s undoubtedly why it’s at the center of Mrs. Rathbun’s lawsuit. But it’s also First Amendment activity, at least to some extent or another, and that may tend to drag everything else along with it.
        • Just Dee
          I don’t think the squirrel busters are at the center of Monique’s lawsuit, just the opposite. Monique stated that if the stalking had stopped after they moved, that would have been the end of it. The point is scientology didn’t stop. They continued to harass, spy, stalk, & even put cameras in the woods directed at the Rathbun’s new home. Monique thought she finally had peace and privacy, she didn’t. It continued…
          • TX Lawyer
            It’s pretty hard to say the SB’s (holy shit, am I starting to abbreviate like a Scientologist?) aren’t at the center of the lawsuit. Their activities are cited and described throughout Judge Waldrip’s findings of fact & conclusions of law, and he even describes it as “protesting” that was “primarily designed to convey the message to other Scientologists that the Rathbuns should stop being ‘squirrels.’”
            • Eclipse-girl
              I am just a regular Jane. I agree with Just Dee. I thought the citations of the abuse by the Squirrel Busters was to show why the Rathbuns moved. They needed to show how intolerable it had been to live where they did had been living. They sought privacy. Then they found game cameras from a private detective pointed at their home.
            • TX Lawyer
              Mrs. Rathbun’s petition isn’t terribly descriptive of precisely what activity she is complaining of, but it’s hard to get away from the protest rubric for the SB’s when that’s exactly what the trial court found the activity to be.
     
    Last edited: Sep 19, 2014
  2. Karen#1

    Karen#1 Gold Meritorious Patron

    Well the CULT is showing their playlist and basic hand of how they defend their Fair Game.

    The Westboro Baptist Church defense.

    "We can be as obnoxious as want but we are a Religion and we have 1st amendment rights."
    We can spy, stalk, intimidate, send lunatics to scream but its ecclesiastical ! We have free speech rights to protect our *religion*

    Remember the mad cackling of Nurse Ratchet (Joanne Wheaton) Maaahhhhhhty Maaaaaahty
    [​IMG]

    Ecclesiastical rights !


    :hysterical: :hysterical: :hysterical:
     
  3. Churchill

    Churchill Gold Meritorious Patron

    Karen,

    You've accurately and succinctly summed up Scientology's offensive defense. It's the Westboro Baptist church defense; the Skokie defense, where the Supreme Court ruled that the American Nazi Party had the right to march through an area where Holocaust Survivors lived, in Skokie, Illinois

    Scientology's intolerance of criticism; it's utter inability to engage in reflective self-examination, and its unrelenting demonization of ex members who speak out, mark it indelibly as Americas Most Dangerous Psycho Cult.

    I believe and hope that Mosey & Marty will prevail in court, but in a larger sense Scientology has already lost.

    Thanks to the growing multitude of people speaking out, and getting out; thanks to the websites and blogs; the books and the investigative reporting, the whistleblowers, the ex staff speaking out, the You Tube videos and the documentaries...I could go on and on, but my point is...it's over. None of it is going away, and we won't be silent.

    Heber once said that Scientology is the anvil that wears down the hammers. He was wrong, because truth is not a hammer. It is a quiet whisper on the wind. It is everywhere and nowhere, and the confusion and the smokescreens of thought control that Scientology works so hard to keep in place are crumbling and washing away like the sand before the tide. The public quite rightly treats Scientology like Ebola.

    The Orgs are empty, morale is low, and neither Tom Cruise, Louie Farrakhan, or Bart Simpson can rescue Scientology from its just fate.
    -Churchill
     
  4. The Sloth

    The Sloth Patron with Honors

    Well, painting Marty as a "heretic", and the protests as a form of "protected religious speech" against his heretical teachings seems to me a weak attempt to
    counter the "commercial activity" issue. Seperation of Church and State is a cornerstone of US law. If this one goes against the CoS, then it is certain they will appeal. I liken it to a Muslim cleric declaring "jihad" against an unbeliever. Or the enforcement of Sharia law on recently conquered: "convert or die". To say that the act of religious expression (death of another) trumps "right to life, liberty, pursuit of happiness" would be wrong, imo.

    So where is the line drawn?
     
  5. Mimsey Borogrove

    Mimsey Borogrove Crusader

    I've been down that road before - the judge telling me that my lawyer did a fantastic job of defending me, then slapping me with a fine, It means nothing. Mimsey
     
  6. RogerB

    RogerB Crusader

    Sloth,

    The line will be drawn when the US Courts are smart enough to discern the difference between the words and meanings of: "Congress shall not . . .(stick your 1st Amendment Clause in here)" and "We the People and the individual shall not . . . )

    Congress is prohibited from passing laws by the Constitution and its Amendments . . . what has to be noted is that the Constitution also guarantees we individuals freedom from assaults to our rights by religions and/or individuals operating on its behalf . . . .

    That is the line of distinction to be drawn.