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.
(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
- 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.
- Eclipse-girl
- TX Lawyer
- Just Dee
- Frodis73
Last edited: