CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff-Appellant,
Gabriel CAZARES, Defendant-Appellee.
Nos. 78-3100, 79-1840.
United States Court of Appeals,
March 9, 1981.
Action was brought against mayor by the Church of Scientology which alleged
that mayor violated civil rights of church and its members and defamed church.
The United States District Court for the Middle District of Florida, Ben
Krentzman, J., granted summary judgment in favor of mayor on the civil rights
claim and dismissed defamation claim, and appeal was taken. The Court of
Appeals, Kravitch, Circuit Judge, held that: (1) church could maintain
civil rights action on behalf of its members; (2) allegations failed to support
claim for violation of civil rights; and (3) alleged statements by mayor were
 CIVIL RIGHTS
Requisite for church to have representational standing to assert civil rights
of its members is not necessarily an explicit statement of representation but a
close nexus between church and its members, and an allegation of injury to its
members as result of the action. 42 U.S.C.A. s 1983; U.S.C.A.Const.
 CIVIL RIGHTS
Allegations by Church of Scientology that it engaged in service of spiritual
desires and needs of its members, that it owned property upon which it and its
members exercised their rights of freedom of religion, and that mayor inflamed
public against church and its members and induced other churches and civic
associations to shun association with church and its members demonstrated a
sufficient nexus between church and its members to permit church to act as its
members' representative before court in civil rights action. 42 U.S.C.A. s
1983; U.S.C.A.Const. Amend. 1.
 RELIGIOUS SOCIETIES
In determining whether church has standing to bring suit on behalf of its
members, neither unusual circumstances, inability of individual members to
assert rights nor explicit statement of representation are requisites.
An association has representational standing when its members would otherwise
have standing to sue in their own right, interests it seeks to protect are
germane to organization's purpose, and neither claim asserted nor relief
requested requires participation of individual members in suit. 42
U.S.C.A. s 1983.
 CIVIL RIGHTS
Where civil rights claim asserted by Church of Scientology and relief requested
affected membership as a whole, claim did not require individual
participation. 42 U.S.C.A. s 1983.
 CONSTITUTIONAL LAW
Even if corporation is not entitled to protection of free exercise clause of
First Amendment, corporation would nevertheless have standing to protect its
economic and property rights. 42 U.S.C.A. s 1983; U.S.C.A.Const. Amend.
 CONSTITUTIONAL LAW
Even if corporation is not entitled to protection of free exercise clause of
First Amendment, corporation would nevertheless have standing to protect its
economic and property rights. 42 U.S.C.A. s 1983; U.S.C.A.Const. Amend.
 CIVIL RIGHTS
Allegation that mayor engaged in course of conduct designed to have and having
effect of chilling, deterring, preventing and inhibiting Church of Scientology
in free exercise of religion, including use of its property for that purpose,
might well be sufficient to give church standing to sue to protect its right to
use its property for free exercise of its religion. 42 U.S.C.A. s 1983;
U.S.C.A.Const. Amend. 1.
 FEDERAL COURTS
Even though district court applied incorrect legal standard in granting summary
judgment, Court of Appeals could uphold such decision if it was apparent on
appeal that no genuine issue of fact existed under the proper legal analysis.
Fed.Rules Civ.Proc. Rules 52(a), 56(c), 28 U.S.C.A.
 FEDERAL CIVIL PROCEDURE
Where property appraiser, in his deposition, stated that he did not recall
meeting mayor or seeing newspaper clipping and appraiser denied that clipping
had any effect on his decision to deny tax exemption to Church of Scientology,
factual dispute as to whether mayor did show clipping to appraiser did not
preclude grant of summary judgment in favor of mayor in civil rights suit
brought by church against mayor. 42 U.S.C.A. s 1983; U.S.C.A.Const.
Amend. 1; Fed.Rules Civ.Proc. Rules 52(a), 56(c), 28 U.S.C.A.
 CIVIL RIGHTS
Mayor's calling FBI and stating that he had information on Church of
Scientology which might constitute federal violation did not
constitute violation of church's civil rights. 42 U.S.C.A. s 1983;
U.S.C.A.Const. Amend. 1.
 CIVIL RIGHTS
Where there was no allegation that any action resulted from mayor's letter to
secretary of state citing apparent infraction of law committed by Church of
Scientology, there was no violation of the civil rights of the church or its
members. 42 U.S.C.A. s 1983; U.S.C.A.Const. Amend. 1; West's
F.S.A. ss 104.011 et seq., 106.011 et seq.
 CIVIL RIGHTS
Where there was no admissible evidence directly linking mayor's public
statements to hostile public climate towards Church of Scientology and its
members, allegation that mayor's public statements were proximate cause of
threats of physical attacks on members of church and hostile public climate in
area would not support suit for violation of civil rights of the church or its
members. 42 U.S.C.A. s 1983; U.S.C.A.Const. Amend. 1.
 CIVIL RIGHTS
Where file maintained by Attorney General on Church of Scientology was closed,
allegation that mayor opposed closing of file was immaterial to question of
whether civil rights of church or any of its members were violated. 42
U.S.C.A. s 1983; U.S.C.A.Const. Amend. 1.
 CIVIL RIGHTS
Where there was no admissible evidence showing that mayor's warnings caused
single businessman or organization to shun Church of Scientology, allegation
that mayor sought to induce businessmen and organizations to shun association
with church would not support claim for violation of civil rights of church or
its members. 42 U.S.C.A. s 1983; U.S.C.A.Const. Amend. 1.
 CIVIL RIGHTS
Church of Scientology's allegations as to various actions and conduct of mayor
were insufficient to support claim of violation of civil rights of church or
its members. 42 U.S.C.A. s 1983; U.S.C.A.Const. Amend. 1.
 LIBEL AND SLANDER
Any doubt as to defamatory effect of publication should be resolved by common
mind of jury, and not by even most carefully considered judicial pronouncement.
 LIBEL AND SLANDER
Church of Scientology which was admittedly a public figure could not recover
for simple defamatory statement but could recover if statement was shown to
have been made with actual malice.
 LIBEL AND SLANDER
To recover for alleged libelous or slanderous statement, it must be shown that
defamatory falsehood was false statement of fact as opposed to pure comment or
 LIBEL AND SLANDER
Alleged statements by mayor as to Church of Scientology, including references
to gung-ho group, disavowed mass murderer, bugging activities, use of armed
guards, and characterization of church as rip-off, money-motivated operation,
were not defamatory.
 FEDERAL CIVIL PROCEDURE
Trial court did not abuse its discretion in granting protective order limiting
 CIVIL RIGHTS
Fact that court sustained complaint for alleged violation of civil rights for
over two years did not preclude award of attorney fees to defendant who
prevailed. 42 U.S.C.A. s 1988.
 CIVIL RIGHTS
Fact that court stated that civil rights action presented novel legal issues
did not preclude award of attorney fees to successful defendant. 42
U.S.C.A. s 1988.
 CIVIL RIGHTS
Award of attorney fees to mayor who obtained summary judgment in his favor in
civil rights action brought against mayor by Church of Scientology was
proper. 42 U.S.C.A. s 1988.
 CIVIL RIGHTS
Where it was not possible to separate time spent by attorney for defendant in
civil rights action and action based on defamatory statements, it was not error
to grant successful defendant attorney fees for entire case. 42 U.S.C.A. ss
 CIVIL RIGHTS
Fact that successful defendant in civil rights action was protected by
indemnity insurance did not preclude award of attorney fees. 42 U.S.C.A. s
 CIVIL RIGHTS
Time spent on civil rights claim is only one factor to be considered in award
of fees. 42 U.S.C.A. s 1988.
 CIVIL RIGHTS
Where trial court was familiar with case, unsuccessful plaintiff had
interrogated successful defendant's attorney who provided detailed record of
time spent and duties performed, it was not error to award attorney fees
without permitting plaintiff to depose defendant's attorney.
*1275 Clyde Wilson, Jr., Sarasota, Fla., Bruce S. Rogow, Miami, Fla., for
John T. Allen, Jr., Walter D. Logan, St. Petersburg, Fla., for defendant-
Appeals from the United States District Court for the Middle District of
Before FAY, KRAVITCH and RANDALL, Circuit Judges.
KRAVITCH, Circuit Judge:
The Church of Scientology of California (the Church) appeals from the district
court's entry of summary judgment in favor of, and subsequent award of
attorneys' fees to, Gabriel Cazares, Mayor of the City of Clearwater, Florida
at the time this action was commenced.
Count I of the Church's third amended complaint was brought under 42 U.S.C.
s 1983 [FN1] and contended that Cazares, under color of state law, deprived the
Church of its civil rights by prohibiting it from practicing its First
Amendment privilege of freedom of religion. Count II alleged defamation under
Florida law with jurisdiction based on diversity of citizenship.[FN2]
FN1. At the time this action was commenced, 42 U.S.C. s 1983 provided:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper
proceeding for redress.
FN2. The original complaint alleged certain defamatory statements as a
basis for the s 1983 count. In the third amended complaint, all
allegations of defamation were contained in a separate Count II.
The district court granted Cazares' motion for summary judgment on Count I
finding that: (1) the Church as a corporation did not have standing to assert
First Amendment rights of freedom of religion in a civil rights action, and (2)
no genuine issue of material fact existed. Summary judgment on Count II was
granted on the ground that the statements made by Cazares constituted mere
opinions concerning the Church in its role as a public figure. In a subsequent
action brought by Cazares and consolidated with the present case for purpose of
review, the court found appellant's s 1983 claim groundless, frivolous and
unreasonable and awarded attorneys' fees to Cazares.
For the reasons stated below, we disagree with the district court's conclusion
that the Church lacked standing to bring an action under s 1983. We hold,
however, that the court was correct in granting summary judgment on both counts
of the Church's Third Amended Complaint and in finding that because appellant's
civil rights claim was groundless, frivolous and unreasonable, appellee was
entitled to attorney's fees. Accordingly, we affirm.
In October of 1975, a corporation known as Southern Land and Development and
*1276 Leasing Corporation (hereafter Southern Land Corp.) purchased the Fort
Harrison Hotel in downtown Clearwater, Florida. Because the hotel was a city
landmark centrally located in the downtown area, the press speculated about the
background of Southern Land Corp. and the future use of the hotel. Documents
filed in Clearwater City Hall indicated the hotel would be used as a training
facility for a large religious organization. Personnel of Southern Land Corp.
identified the organization as United Churches of Florida, Inc.
As church employees moved into the hotel, a public controversy arose as to the
type of religious organization that would use the facility. News media gave
substantial coverage to the developments. On January 28, 1976, appellant Church
of Scientology of California announced that it was directly connected with
Southern Land Corp. and United Churches of Florida and would be utilizing the
hotel for functions of the Church of Scientology of California.
During the progress of the news developments, appellee Gabriel Cazares, Mayor
of the City of Clearwater, made statements on numerous occasions speculating as
to the identity of the purchaser of the hotel and the purposes for which the
hotel would be used. When the Church of Scientology of California revealed it
was the true owner of the hotel, Cazares became one of its harshest critics.
According to appellant, Cazares' criticism was unlawful. In its Third Amended
Complaint it contended that utilizing his power as Mayor of Clearwater, Cazares
interfered with the Church's free exercise of religion by: making false and
defamatory remarks, thereby turning the community against the Church and its
adherents; inducing clergymen of other faiths to shun association with it and
its adherents; inducing local city and state officials to undertake
discriminatory and harassing actions and investigations of the Church; inducing
civic organizations and other entities to shun association with the Church and
its adherents and join public condemnation and ridicule of the Church; inducing
the news media to refrain from publishing accurate information and/or favorable
comments concerning the Church and to publish only adverse comments and false
and derogatory information concerning the Church.
In granting Cazares' motion for summary judgment on the s 1983 count, the
district court initially addressed the issue of standing. The court recognized
that there were two possible theories under which a corporation might bring a
civil rights action: (1) to protect the rights of its members; or (2) to
protect its own rights as a corporate institution. The court found that the
pleadings raised only the latter theory but that the Church would have standing
under neither theory because: (1) there were no rights that could not be
asserted by an individual member of the Church and no need for the Church to
protect the rights of its members; and (2) as a corporation, the Church's right
to free exercise of religion was not directly protected by the Civil Rights
Act; thus the Church lacked standing to bring suit for the protection of its
In finding that the Church lacked standing to seek protection of the civil
rights of its members the district court interpreted NAACP v. Alabama, 357
U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) in an unjustifiably narrow
manner by requiring the presence of "unusual circumstances" before a
corporation could sue on behalf of its members.
In NAACP, the State of Alabama brought an action in state court seeking to
enjoin the NAACP from conducting activities in Alabama and sought records,
including membership lists. The Alabama court held the Association in contempt
for noncompliance with the order to produce records revealing the names of its
members. NAACP sought certiorari to the United States Supreme Court urging two
points: first, that it was constitutionally entitled to resist official inquiry
into its membership lists; and second, that on behalf of its members, it was
entitled to assert that their *1277 exercise of a right personal to them,
namely, their affiliation with the association as revealed by the membership
lists, is protected from compelled disclosure. Without deciding whether the
NAACP had standing as an institution, the Court noted "that petitioner argues
more appropriately the rights of its members, and that its nexus with them is
sufficient to permit that it (the NAACP) act as their representative before
this Court." 357 U.S. at 458-59, 78 S.Ct. at 1169-70.
One reason the Supreme Court upheld NAACP's standing to assert a
constitutional right on behalf of its members was that to have held otherwise
would have defeated the purpose of the suit. If the individual members had to
be parties, they would have revealed their identity. Though that was certainly
a reason for the decision, it was not the only reason. As the Court stated:
Petitioner is the appropriate party to assert these rights, because it and
its members are in every practical sense identical. The Association, which
provides in its constitution that "(a)ny person who is in accordance with (its)
principles and policies ..." may become a member, is but the medium through
which its individual members seek to make more effective the expression of
their own views. The reasonable likelihood that the Association itself through
diminished financial support and membership may be adversely affected if
production is compelled is a further factor pointing towards our holding that
petitioner has standing to complain of the production order on behalf of its
members. Cf. Pierce v. Society of Sisters, 268 U.S. 510, 534-536, 45 S.Ct.
571, 573, 69 L.Ed. 1070.
357 U.S. at 459-60, 78 S.Ct. at 1170-71. Nowhere in the opinion does the
Court suggest that only in "unusual circumstances" can a corporation sue to
protect the rights of its members.[FN3]
FN3. But see Alabama Educational Association v. Wallace, 362 F.Supp.
682, 684 (M.D.Ala.1973).
In the present case the district court also denied the Church representational
standing because it found there were no rights that could not be asserted by an
individual member of the Church, thus there was no need for the Church to
protect the rights of its members. An identical argument was implicitly
rejected by the Supreme Court in Hunt v. Washington Apple Advertising
Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In Hunt, a
Washington state agency challenged the constitutionality of a North Carolina
statute concerning the selling and shipping of apples in North Carolina. North
Carolina challenged the commission's standing to bring the action on behalf of
Washington state growers and dealers arguing, inter alia, that the growers and
dealers "are under no disabilities which prevent them from coming forward to
protect their own rights if they are, in fact, injured by the statute's
operation." 432 U.S. at 342, 97 S.Ct. at 2440. Using the analysis originally
set forth in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975), discussed infra, the Court found standing.
In denying representational standing to the Church, the district court also
emphasized that the complaint did not specifically state that the Church was
seeking to represent its members in the action. We are unaware of any authority
that requires such an explicit statement. Indeed, in Congress of Racial
Equality v. Douglas, 318 F.2d 95, 102 (5th Cir. 1963), we allowed CORE to
assert the constitutional rights of its members although the pleadings did not
specifically seek relief on behalf of any member. In that case the district
court, at the behest of the Mayor of McComb City, Mississippi, and the owners
of a bus station restaurant, enjoined CORE from encouraging blacks to utilize
terminal facilities at the bus depot on the ground that CORE intended to
provoke breaches of the peace. We reversed, holding that the injunction was an
unconstitutional abridgement of First Amendment rights. We noted:
The injunction, if allowed to stand, would amount to a complete deterrent to
the members of CORE to demonstrate peacefully against the segregation policies
of the City of McComb. CORE and other *1278 organizations, organized for the
purpose of peacefully demonstrating and speaking against unconstitutional state
and local laws enforcing segregation, would then find themselves virtually
318 F.2d at 102 (emphasis added). In a vigorous dissent Judge Gewin
questioned the grant of first amendment protection to a corporate defendant
where pleadings were not filed on behalf of its individual members.[FN4]
FN4. Judge Gewin stated:
There is only one appellant, a New York corporation, the Congress of Racial
Equality (CORE), and the appellees are C. H. Douglas, Individually and as
Mayor of the City of McComb, and Mr. and Mrs. Aubrey McGehee. There is no
individual appellant only a corporate one. Only the appellant CORE is
mentioned in the injunctive order. No person but CORE gave notice of
appeal. Designation of contents of the record on appeal was given only by
CORE. Again, we emphasize that no individual appellant is involved. In
spite of this fact, the majority grounds its opinion on the following
"We find that the injunction below is an unconstitutional abridgement of
the First Amendment rights, as protected by the Fourteenth Amendment, as a
prior restraint on the freedom of speech."
This is the first instance I have found where freedom of speech on the part
of a corporate defendant is used as the basis for reversing a trial court
in circumstances here present. As stated, the appellant CORE filed no
pleadings seeking any relief on its own behalf or on behalf of any
individual it claimed to represent; and it offered no evidence. There is no
suggestion of a class action or the appearance of any litigant in a
318 F.2d at 104-05.
 It is thus clear that the requisite for representational standing in
this circuit is not necessarily an explicit statement of representation but a
close nexus between the organization and its members, see NAACP v. Alabama,
357 U.S. at 458-59, 78 S.Ct. at 1169-70, and an allegation of injury to its
members as a result of the action. Warth v. Seldin, 422 U.S. 490, 95 S.Ct.
2197, 45 L.Ed.2d 343 (1975).
Such an analysis finds support in Allee v. Medrano, 416 U.S. 802, 94 S.Ct.
2191, 40 L.Ed.2d 566 (1974), where the Supreme Court held that a union has
standing under 42 U.S.C. s 1983 to assert violations of the First Amendment
guarantees of freedom of speech and association. In a footnote the Court
In this case the union has standing as a named plaintiff to raise any of the
claims that a member of the union would have standing to raise. Unions may sue
under 42 U.S.C. s 1983 as persons deprived of their rights secured by the
Constitution and laws, American Fed. of State, Co., & Mun. Emp. v. Woodward,
406 F.2d 137 (CA8), and it has been implicitly recognized that protected First
Amendment rights flow to unions as well as to their members and organizers.
Carpenters Union v. Ritter's Cafe, 315 U.S. 722 (62 S.Ct. 807, 86 L.Ed.
1143); cf. NAACP v. Button, 371 U.S. 415, 428 (83 S.Ct. 328, 335, 9 L.Ed.2d
405). If, as alleged by the union in its complaint, its members were subject to
unlawful arrests and intimidation for engaging in union organizational activity
protected by the First Amendment, the union's capacity to communicate is
unlawfully impeded, since the union can act only through its members. The union
then has standing to complain of the arrests and intimidation and bring this
416 U.S. at 819 n.13, 94 S.Ct. at 2202 n.13 (emphasis added).[FN5]
FN5. In a separate opinion, Chief Justice Burger, joined by Justices White
and Rehnquist, emphasized that organizations should have standing because
they derivatively suffer when their members suffer:
In addition to any individual named appellees the union itself may have
standing to challenge the constitutionality of the statutes. The Court has
long recognized that the First Amendment's guarantees of free speech and
assembly have an important role to play in labor disputes. Thornhill v.
Alabama, 310 U.S. 88, 102 (60 S.Ct 736, 744, 84 L.Ed. 1093) (1940);
Thomas v. Collins, 323 U.S. 516, 532 (65 S.Ct. 315, 323, 89 L.Ed. 430)
(1945). I agree with the Court that unions, as entities, in addition to
union members and organizers, are entitled to the benefit of those
guarantees and that a union may sue under 42 U.S.C. s 1983 to enforce
its First Amendment rights.
Here the appellee union alleged in the complaint that it was deprived of
its constitutional rights of free speech and assembly by the actions of
defendants in enforcing the challenged Texas statutes. If, as claimed by
the union, union members were subject to unlawful arrest and threats of
arrest in their First Amendment protected organizational activity on behalf
of the union, the union would have derivatively suffered or have been in
the position to suffer derivatively real injury and would have standing to
complain of that injury and bring this action. If a person who was a member
of the union both at the time of that person's arrest and at the present
time would have standing individually to challenge the constitutionality of
one of the five statutes, then the Union itself would have such standing,
since the inability of the union member to communicate freely restricts the
ability of the union to communicate. As the Court states, ante, at 819
n. 13, a union "can act only through its members."
416 U.S. at 829-30, 94 S.Ct. at 2207.
*1279  In the present case although the complaint designates only the
Church as plaintiff, it alleges the Church is engaged in the "service of the
spiritual desires and needs of its numerous members and others throughout the
United States and elsewhere ..." and that it owns property in Clearwater upon
which it and its members exercise their rights of freedom of religion. The
complaint further alleges that the Mayor inflamed public sentiment against the
Church and its members and induced other churches and civic associations to
shun association with the Church and its members. We believe such allegations
demonstrate a sufficient nexus between the Church and its members to permit the
Church to act as its members' representative before the court.
In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the
Supreme Court succinctly set forth the circumstances under which an
organization or association has standing to bring an action as the
representative of its members:
Even in the absence of injury to itself, an association may have standing
solely as the representative of its members.... The association must allege
that its members, or any one of them, are suffering immediate or threatened
injury as a result of the challenged action of the sort that would make out a
justiciable case had the members themselves brought suit.... So long as this
can be established, and so long as the nature of the claim and of the relief
sought does not make the individual participation of each injured party
indispensable to proper resolution of the cause, the association may be an
appropriate representative of its members, entitled to invoke the court's
422 U.S. at 511, 95 S.Ct. at 2211.[FN6]
FN6. See also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26,
39-40, 96 S.Ct. 1917, 1924-25, 48 L.Ed.2d 450 (1976); Meek v. Pittenger,
421 U.S. 349, 355-56 n.5, 95 S.Ct. 1753, 1758 n.5, 44 L.Ed.2d 217 (1975);
Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31
L.Ed.2d 636 (1972); NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328,
335, 9 L.Ed.2d 405 (1963); National Motor Freight Traffic Ass'n v.
United States, 372 U.S. 246, 247, 83 S.Ct. 688, 689, 9 L.Ed.2d 709 (1963).
 Thus, in determining whether an association has standing to bring
suit on behalf of its members, neither unusual circumstances, inability of
individual members to assert rights nor an explicit statement of representation
are requisites. An association has representational standing when: (a) its
members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization's purpose; and
(c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. Hunt v. Washington Apple
Advertising Commission, 432 U.S. at 343, 97 S.Ct. at 2441.
 The prerequisites to associational standing described in Warth and
reaffirmed in Hunt are clearly present here. If, as claimed by the Church,
its members were harassed and abused to the extent that they could not freely
exercise their religious beliefs, then certainly the members would have
standing to sue in their own right. Moreover, according to the complaint, the
purpose of the Church is to "service .... The spiritual desires and needs of
its numerous members and others throughout the United States and elsewhere ..."
It can fulfill this purpose only if its members are allowed to engage in the
free exercise of *1280 their religion. Finally, because the claim asserted
and the relief requested affect the membership as a whole, we conclude that the
claim does not require individual participation.
We are cognizant that the Supreme Court, in Harris v. McRae,
--- U.S. ----, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), noted that a free
exercise claim is "one that ordinarily requires individual participation." In
McRae the Court held that the Women's Division of the Board of Global
Ministries of the United Methodist Church lacked standing to raise a free
exercise challenge to the Hyde Amendment. Because the Women's Division conceded
that "the permissibility, advisability and/or necessity of abortion according
to circumstance is a matter about which there is diversity of view within ...
our membership, and is a determination which must be ultimately and absolutely
entrusted to the conscience of the individual before God," the Court concluded
that the participation of individual members of the Women's Division was
essential to a proper understanding and resolution of their free exercise
claims. Id. at 2690. In McRae only an undetermined percentage of the
membership had a personal stake in the controversy, i. e., it was not alleged
how many members (1) were eligible to receive Medicaid; (2) were or expected to
be pregnant; and (3) as a matter of religious belief would choose to terminate
pregnancy by abortion.
 The present case differs from McRae in a significant respect: the
conduct challenged in the complaint uniformly affected the entire membership of
the Church of Scientology in Clearwater. The complaint does not allege that the
defendant harassed only certain members of the Church; the allegations refer
to "the Church, its ministers and adherents." Moreover, the complaint alleges
that defendant chilled, deterred, prevented, and inhibited plaintiff in the
free exercise of religion, "including use of its property for that purpose."
Thus, because the religious activity of the members was inherently intertwined
with the services and facilities of the Church, the actions complained of
affected every member of the Church in Clearwater. Accordingly, the claims
could properly be presented by the Church on behalf of its members.[FN7]
FN7. Because we hold that the Church had standing to bring this action on
behalf of its members, we need not reach the issue of whether there exist
institutional rights of free exercise which the Church had standing to
assert. This issue was raised, but not resolved, in Brown v. Dade
Christian Schools, Inc., 556 F.2d 310, 313 (5th Cir. 1977) (en banc).
Since our decision in Brown, the Supreme Court in First National Bank
v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), has held
that corporate speech is protected by the First Amendment, even if the
speech does not pertain to the corporation's business or property. See
also Advocates for the Arts v. Thomson, 532 F.2d 792 (1st Cir. 1976)
(corporation as an institution has standing to assert violations of the
First and Fourteenth Amendments under 42 U.S.C. s 1983).
In Bellotti, the Court did not address "the abstract question whether
corporations have the full measure of rights that individuals enjoy under
the First Amendment." 435 U.S. at 777, 98 S.Ct. at 1416. However, the
Court did offer some guidance in determining which constitutional rights a
corporation may assert:
Corporate identity has been determinative in several decisions denying
corporations certain constitutional rights, such as the privilege against
compulsory self-incrimination, Wilson v. United States, 221 U.S. 361,
382-386 (31 S.Ct. 538, 545-546, 55 L.Ed. 771) (1911), or equality with
individuals in the enjoyment of a right to privacy, California Bankers
Assn. v. Shultz, 416 U.S. 21, 65-67 (94 S.Ct. 1494, 1519-1520, 39 L.Ed.2d
812) (1974); United States v. Morton Salt Co., 338 U.S. 632, 651-652 (70
S.Ct. 357, 368-369, 40 L.Ed. 401) (1950), but this is not because the
States are free to define the rights of their creatures without
constitutional limit. Otherwise, corporations could be denied the
protection of all constitutional guarantees, including due process and the
equal protection of the laws. Certain "purely personal" guarantees, such as
the privilege against compulsory self-incrimination, are unavailable to
corporations and other organizations because the "historic function" of the
particular guarantee has been limited to the protection of individuals.
United States v. White, 322 U.S. 694, 698-701 (64 S.Ct. 1248, 1251-1252,
88 L.Ed. 1542) (1944). Whether or not a particular guarantee is "purely
personal" or is unavailable to corporations for some other reason depends
on the nature, history, and purpose of the particular constitutional
435 U.S. at 779 n.14, 98 S.Ct. at 1417 n.14. Thus, the question of
whether a corporation may assert a right to free exercise of religion
depends on whether the right to free exercise is "purely personal" which in
turn depends on the "nature, history and purpose" of the free exercise
clause. We leave the answer to this question for another day.
It should be noted, however, that even if a corporation is not entitled to
the protection of the free exercise clause of the First Amendment, it would
nevertheless have standing to protect its economic and property rights.
See Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69
L.Ed. 1070 (1925); Watchtower Bible and Tract Soc'y v. Los Angeles
County, 181 F.2d 739 (9th Cir. 1950); Church of God v. Monroe-Ouachita
Regional Planning Comm'n, 404 F.Supp. 175 (W.D.La.1975).
In Paragraph 5 of the Third Amended Complaint, the Church alleges that the
Mayor engaged "in a course of conduct, practice and policy designed to and
having the effect of chilling, deterring, preventing and inhibiting
Plaintiff in the free exercise of religion under the First Amendment to the
United States Constitution, including use of its property for that
purpose ...." (emphasis added) Construing the complaint liberally, such an
allegation might well be sufficient to give the Church standing to sue to
protect its right to use its property for the free exercise of its
religion. Such an action would, of course, rely more heavily on the
Fourteenth than the First Amendment.
*1281 III. Civil Rights Claim
Because of its legal determination that the Church did not have standing to
bring the civil rights action, the court granted the Mayor's motion for summary
judgment as to Count I without making any specific findings. It concluded,
however, that "(b)ased upon the entire record there is no deprivation of the
First Amendment right of either the Church or its members."
Under Fed.R.Civ.P. 52(a), findings of fact are not necessary for decisions
granting summary judgment.[FN8] It is only necessary that there be no genuine
issue as to any material fact. Hindes v. United States, 326 F.2d 150 (5th
Cir.), cert. denied, 377 U.S. 908, 84 S.Ct. 1168, 12 L.Ed.2d 178 (1964).
Here the court determined:
FN8. On the other hand, "such findings are helpful to appellate review."
Farbwerke Hoeschst A. G. v. M/V "Don Nicky," 589 F.2d 795 (5th Cir.
1979). See also Melancon v. Insurance Co. of North America, 482 F.2d
1057 (5th Cir. 1973).
The Court has examined the record in this case carefully and has found no
genuine issue of material fact to exist as to Count I. The Court finds only
matters of law to be determined.
 Although we hold that the district court applied an incorrect legal
standard in finding the Church without standing, if it is apparent on appeal
that no genuine issue of fact exists under the proper legal analysis, we may
uphold the grant of summary judgment. See, e. g., International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America v.
National Right to Work Legal Defense and Education Foundation, Inc., 590 F.2d
1139 (D.C.Cir.1978); Fed.R.Civ.P. 56(c).
In the first count of its complaint [FN9] the Church charged that the Mayor
interfered *1282 with the Church's right to free exercise of religion by:
(1) inflaming public opinion against it; (2) inducing other churches and
clergymen to shun association with it and its members; (3) inducing city
officials to act against it; (4) inducing state and federal officials to act
against it; (5) inducing civic groups to shun association with it and to
condemn publicly and ridicule it, its members, and its faith; (6) inducing the
media to comment adversely upon it; and (7) creating a public climate such that
others would fear to associate with it.
FN9. Count I of Appellant's Third Amended Complaint states:
4. Plaintiff is the beneficial owner of certain real property situate in
the City of Clearwater aforesaid, at, from and in the use of which it, its
ministers, members and adherents, are and at all relevant times were
peaceably exercising or attempting to exercise the right of religion
guaranteed by the First Amendment to the United States Constitution.
5. Commencing in January 1976, the Defendant, apprehending that a
significant minority of persons in and around the City of Clearwater were
intolerant of religious faiths and beliefs other than their own or other
traditionally fundamental and orthodox faiths and seeking thereby to gain
popularity for himself as a champion of bigotry, willfully and maliciously
undertook and has continued to date, using and abusing the full power,
prestige and authority of his office as Mayor as aforesaid, to engage in a
course of conduct, practice and policy designed to and having the effect of
chilling, deterring, preventing and inhibiting Plaintiff in the free
exercise of religion under the First Amendment to the United States
Constitution, including use of its property for that purpose, and generally
to "get rid of" Plaintiff, for no other reason than that he, and those whom
he purports to represent, deem the religious beliefs which Plaintiff
practices, promulgates and defends to be hateful and heretical.
6. In pursuit of the foregoing alleged practice and policy, the Defendant
has, among other things, undertaken:
a. To inflame to the point of potential violence public sentiment against
Plaintiff, its ministers and adherents, by an unremitting stream of overt
and covert communication to others of false and slanted information and
otherwise demeaning and contemptuous remarks concerning Plaintiff,
including independently actionable defamatory statements as hereinafter
more particularly alleged, full well knowing the same to be untrue or
misleading, or disdaining any interest in the truth or fairness thereof,
and concerning himself only with the tendency of such communications to
subject Plaintiff, its ministers and adherents to ridicule, contempt and
hatred, and to gain for himself popularity among those predisposed to such
b. To induce other churches and clergymen in the Clearwater area to shun
association with Plaintiff, its ministers and adherents, and to preach and
pray to that end on the grounds that the religious faith espoused by
Plaintiff is "anti-Christ" and "Satanic";
c. To induce other officials of the City of Clearwater and the County of
Pinellas to undertake discriminatory and harassing actions against and
investigations of Plaintiff, including arbitrary denial of otherwise
lawfully available religious real property tax exemption, arbitrary
requirement by the Fire Marshall for installation on Plaintiff's property
of costly fire prevention equipment and measures not required of other
property owners in Clearwater, and arbitrary barring of Plaintiff from
participation in the City of Clearwater sponsored Bicentennial
celebrations. These actions include a memorandum to the City Manager and
City Attorney of Clearwater, issued on or about July 10, 1977, a copy of
which is attached hereto as Exhibit A.
d. To induce state and federal officials and bodies, including the offices
of Governor, the Secretary of State, and the Attorney General of the State
of Florida, and the Clearwater Downtown Development Board, to undertake
similar discriminatory harassing action against and investigation of
Plaintiff. These actions include a letter addressed to the Honorable Bruce
A. Smathers, Secretary of State, sent on or about July 31, 1977, a copy of
which is attached hereto as Exhibit C.
e. To induce private civic organizations, including Clearwater Neighbors,
Inc., the Clearwater Lions, Kiwanis, Rotary, Executive and Christian
Businessmen's Club, the Clearwater Board of Realtors, and the Greater
Seminole and Pinellas County Democratic Clubs, to shun association with
Plaintiff, its ministers and adherents, and to join Defendant in uninformed
public condemnation and ridicule of Plaintiff and the religious faith which
f. To induce public news media to refrain from publishing accurate
information and/or favorable comment concerning Plaintiff, and to publish
only adverse comment, false and derogatory information, and adversely
slanted "news"; and
g. Generally, to create a public climate such that third persons, including
employees and prospective employees, insurance companies, and others, are
literally afraid to contract, associate or sympathize with Plaintiff lest
they themselves be subject to loss, injury or public opprobrium.
7. Defendant's actions and attempted actions, practice and policy above set
forth violate Plaintiff's rights under the First and Fourteenth Amendments
to the United States Constitution to the free exercise of religion and the
equal protection of the laws.
8. Plaintiff has suffered, is suffering and will continue to suffer severe
and irreparable injury by virtue of the foregoing. To date, Plaintiff has
suffered damage in an amount not less than $1,000,000. Plaintiff has no
plain adequate, or complete remedy at law to redress these violations of
its constitutional rights, and this suit for injunction, declaratory
judgment and damages is the only means of securing complete and adequate
relief. No other remedy would offer Plaintiff substantial or complete
protection from continuation of Defendant's said acts, practice and policy.
The Mayor moved for summary judgment with a supporting memorandum of law and
supporting affidavits from the defendant, a member of the clergy in the
Clearwater area, and the city fire marshal. After the Church filed its
memorandum in opposition to the motion for summary judgment, the district court
granted summary judgment for the Mayor.
The Church claims that the district court erred in granting summary judgment
because of the existence of numerous factual disputes, to wit:
*1283  (1) Whether the Mayor improperly influenced the Church's real
property tax exemption. In his deposition, Mark Sableman, a newspaper reporter,
claimed that Cazares told him he had visited the deputy property appraiser and
handed him a newspaper article in which it was reported that another state had
denied the Church of Scientology a tax exemption. The Mayor stated in his
affidavit that he did not attempt to induce county officials to deny
arbitrarily the Church a tax exemption. A simple factual dispute, however, if
not material, will not stave off a motion for summary judgment. Here the
factual dispute was immaterial to the civil rights claim. The property
appraiser, in his deposition, stated he did not recall ever meeting the Mayor
or seeing the newspaper clipping. Thus, even if the Mayor had actually given
the property appraiser the newspaper article, the appraiser's denial that it
had any effect on his decision is not controverted.
 (2) Whether the Mayor sought to cause an unwarranted FBI investigation
of the Church. According to a memo purportedly written by an FBI member, the
Mayor allegedly called the FBI and told the agent that he had information on
the Church which might be useful in that "it might constitute a federal
violation." The FBI reacted, according to the memo, by reopening its file. In
his April 20, 1976 deposition the Mayor admitted talking to the FBI but said
nothing came of the conversation. Later in his deposition he said he had no
evidence that a crime had been committed.
Even assuming the FBI memo is admissible (which is highly unlikely because
there is no sworn testimony to properly identify it), it raises no issue of
material fact. There is no evidence that the FBI followed up the call from
Cazares with any action that could be considered violative of the Church's
civil rights. Neither was the Mayor's calling the FBI a civil rights violation.
Not only did he not urge the FBI to do anything against the Church; according
to the memo, he said he was not in any particular hurry to discuss the matter
(3) Whether the Mayor had sought to induce action by state officials against
the Church. In a letter which he allegedly wrote to the Secretary of State, the
Mayor cited "an apparent infraction of law" committed by the Church.
Apparently, Cazares thought the Scientologists might be in violation of
Chapters 104 and 106 of the Florida Statutes regarding elections.
 There is no allegation that any action resulted from the Mayor's
inquiry. Presumably, the Secretary of State decided no laws had been broken and
the matter was not pursued. Certainly, the Mayor did not violate the civil
rights of the Church or its members by pointing out what he thought was an
infraction of the law, especially when there was no follow-up on the matter by
 (4) Whether the Mayor's public statements were the proximate cause of
threats of physical attacks on members of the Church and the hostile public
climate in the Clearwater area. There are affidavits that the Church and its
members suffered threats of physical harm that interfered with their free
exercise of religion. However, there is nothing in the record but the
unsupported conjecture of some of the Church members that the Mayor was the
proximate cause of their troubles. Many Clearwater residents had strong
negative feelings about the Church, much of which stemmed from the methods used
by the Church in acquiring the Fort Harrison Hotel and the fear the townspeople
had of religious beliefs completely alien to their own. Certainly, the Mayor
did little to help matters with his outspoken opposition to the Church.
Nevertheless, there is no admissible evidence directly linking the Mayor's
public statements to the hostile public climate in Clearwater towards the
Church and its members.
 (5) Whether the Mayor told an Assistant Attorney General that "he
wanted to go on record as vehemently opposed to the closing of the file" on the
Church. Again, this dispute is not material to the legal question of whether
the Church's civil *1284 rights were violated. Even if the Mayor was opposed
to the closing of the file in question, it apparently was closed by the
Attorney General. Neither the Mayor's desire to keep the file open nor the
Attorney General's decision to close the file is material to the question of
whether the civil rights of the Church or any of its members were violated.
(6) Whether the Mayor sought to induce businessmen and organizations to shun
association with the Church. Based on the answers in the deposition of Mr.
Popp, a local Lutheran Church minister, the Scientologists claim the Mayor
intended to convince the business community that it was dangerous to allow the
Church quietly to buy property in Clearwater, and thereby to increase its
political clout in the area. In his affidavit Cazares states he has never
induced civic organizations to shun association with the Church. This, too,
does not raise a dispute as to material facts.
 There is no admissible evidence showing that the Mayor's warnings
caused a single businessman or organization to shun the Church. This does not
mean the Church may not have been shunned; rather, there is no evidence of a
nexus between the Mayor's statements and the alleged ostracism.
 The Church identifies a number of other allegedly factual disputes, but
these also are either immaterial to the civil rights claim, based on
inadmissible evidence, or fail to show a causal relationship between the Mayor
and the alleged infringement of civil rights. We agree with the district
court's conclusion that no genuine issue of material fact exists as to Count I.
The record fails to show that the Mayor deprived either the Church or its
members of any First Amendment right. Accordingly, we affirm the grant of
summary judgment as to the civil rights claim.
IV. The Defamation Action
In Count II of its Amended Complaint the Church claimed that Cazares
maliciously made a number of statements that defamed the Church. In partially
granting defendant's Motion to Dismiss, the trial court struck three of the
allegedly defamatory statements from the Amended Complaint, holding that they
did not state claims upon which relief could be granted based on theories of
libel and slander.[FN10]
FN10. The court struck the allegations contained in paragraphs 9(a),
(d) and (f) of the Amended Complaint which state in pertinent part:
9. Full well knowing the same to be untrue, or with reckless disregard for
the truth, the defendant, motivated by actual and utter malice, has made
and published false and derogatory statements intended to convey, and
reasonably understood by listeners and readers accordingly, that plaintiff
does not practice, promulgate, preserve and defend a religious faith,
within the meaning of the First Amendment to the United States
Constitution, but is a commercial corporation dedicated to fraudulent
pursuit of excess profits; that plaintiff is a vile and hateful
organization; that plaintiff is a fascist organization dedicated to
overthrow of democratic processes and American form of government, by such
means as generation of racial hatred and indiscriminate mass murder; and
that plaintiff had committed such state and/or federal crimes as
unauthorized wire-tapping or other unlawful electronic surveillance. More
(a) On or about March 12, 1976, in the City of Clearwater, defendant was
the guest speaker at a Lions Club luncheon attended by a number of persons
whose identities are unknown to plaintiff; during the course of his address
to such group of persons, the defendant orally stated and published that
plaintiff was not a religious organization as "religion" was understood in
the Clearwater area, but "a rip-off, money motivated operation";
(d) On or about January 28, 1976, at his City Hall office in the City of
Clearwater, the defendant, referring to plaintiff, orally stated to one
Deanna Thompson and/or one Dave Dorney, known to defendant to be reporters
for the Clearwater Sun, and knowing that such statement would thereafter be
quoted in the public press, that "I don't like paramilitary religious
organizations"; thereafter, defendant's said statements were publicly
reported in the Clearwater Sun on January 29, 1976, in the form hereto
annexed as Exhibit C;
(f) Sometime during April, 1976, the exact date being unknown to plaintiff,
defendant, at his City Hall office in the City of Clearwater, referring to
plaintiff, orally stated to one John Marshall, known to defendant to be a
reporter for the Toronto, Canada, Globe and Mail, and knowing such
statement would thereafter be quoted in the public press, that "they could
have sophisticated stuff up there that could be aimed at these windows and
pick up anything we're talking about," intending thereby to accuse
plaintiff of the commission of state and/or federal crime by indulgence in
illicit wire-tapping or electronic surveillance; thereafter, defendant's
said statement was publicly reported in Canada in the Toronto Globe and
Mail on May 8, 1976, in the form hereto annexed as Exhibit E; later in May,
1976, the exact date being unknown to plaintiff, defendant obtained a copy
of said newspaper article from Canada, and caused the same to be re-
published in Pinellas County, Florida, by delivery of a copy thereof to one
Bob Synder, known to defendant to be an irrationally bigoted individual
disposed to use the contents of the same to plaintiff's further injury.
*1285 Discovery proceeded and the Church again amended its complaint. Count
II of the Third Amended Complaint alleged that the Mayor maliciously published
false and defamatory statements on two occasions.[FN11] In granting summary
judgment for the defendant, the district court found that the Church was a
public figure and could recover only by showing the Mayor's statements to be
defamatory, false and made with actual malice. The court held that when read in
proper context the allegedly defamatory statements constituted mere conclusions
or opinions which are constitutionally protected. The court concluded: "The
entire record and in particular the articles themselves show that the defendant
made no malicious, false statement concerning the plaintiff."
FN11. Count II of the Third Amended Complaint states in pertinent part:
9. Full well knowing the same to be untrue, or with reckless disregard for
the truth, the Defendant, motivated by actual and utter malice, has made
and published false and derogatory statements intended to convey, and
reasonably understood by listeners accordingly, that Plaintiff does not
practice, promulgate, preserve and defend a religious faith, within the
meaning of the First Amendment to the United States Constitution, but that
Plaintiff is a vile and hateful organization; that Plaintiff is a fascist
organization dedicated to overthrow of democratic processes and American
form of government, by such means as generation of racial hatred and
indiscriminate murder. More particularly:
a. On or about February 27 or 28, 1976, either at his home or at his City
Hall office or at the office of his attorney in the City of Clearwater, the
Defendant entertained representatives of the public news media, at his
invitation, for the purpose of disclosing to the latter the fact of his,
the said Defendant's, having sued Plaintiff and others in a Florida state
court on account of matters collaterally related hereto, "explaining" his
"reasons" for so doing, and otherwise taking advantage of public press
attention to further his malicious ploy to vilify Plaintiff; during the
course of said press conference, the defendant, knowing that his statements
would thereafter be quoted in the public press, orally stated to, among
others, one Mark Sableman, known to Defendant to be a reporter for the
Clearwater Sun, that Plaintiff practiced "ruthless tactics", engaged in
"questionable schemes," and was disposed to undertake "assaults on ...
business, religious, and government institution," and to "subject
Clearwater citizens to untoward actions too bizarre to contemplate," which
"would result in a chilling setback to the democratic process with possibly
national ramifications", thereafter, Defendant's said statements were
publicly reported in the Clearwater Sun on February 28, 1976, in the form
hereto annexed as Exhibit B;
b. On or about March 23, 1976, either at his City Hall office or over the
telephone, the Defendant orally stated to one Mark Sableman, known to
Defendant to be a reporter for the Clearwater Sun, and knowing that such
statement would thereafter be quoted in the public press, that
"Scientologists are bringing to the city a helter-skelter world and
philosophy," full well appreciating in so doing that the term "helter-
skelter" had, by reason of a best-selling book and television movie of the
same title come into public understanding as descriptive of the policy of
generation of racial strife and indiscriminate mass murder allegedly
espoused by the infamous and widely publicized Charles Manson, and
intending thereby to convey to the public that Plaintiff was dedicated to
promotion of generation of racial strife and indiscriminate mass murder;
thereafter, Defendant's said statements were publicly reported in the
Clearwater Sun on March 24, 1976, in the form hereto annexed as Exhibit D.
On appeal the Church argues that the Mayor's statements were capable of
defamatory meaning and in any event the court should not have decided the
question at the Motion to Dismiss and Summary Judgment stages.
*1286  Because the defamation count was brought as a diversity
action, Florida law applies. In Belli v. Orlando Daily Newspapers, 389 F.2d
579, 583 (5th Cir. 1967), we stated that under Florida law it was for the trial
judge in the first instance to determine whether words are reasonably capable
of defamatory interpretation or whether they are necessarily so; it is then for
the jury to decide whether they were in fact understood as defamatory.
Furthermore, any doubt as to the defamatory effect of the publication should be
resolved by the common mind of the jury, and not by even the most carefully
considered judicial pronouncement.
Although in Belli we reversed because we found that the publication was
capable of a defamatory meaning, we did not hold that summary judgments or
motions to dismiss are necessarily inappropriate in all defamation cases. In
his special concurrence Judge Godbold noted that a judge is not precluded from
finding defamation exists as a matter of law. 389 F.2d at 589. Nor is a
judge precluded from finding, as a matter of law, that the publication was not
defamatory. Thus, in Southard v. Forbes, 588 F.2d 140 (5th Cir. 1979), a
lawsuit involving a public figure, summary judgment was held to be appropriate
on both the questions of defamation and actual malice.
 In the present case the Church admits it is a public figure within the
doctrine of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964). Thus, the Church may not recover for a simple defamatory
statement. The statement must be shown to have been made with "actual malice"
that is with knowledge that it was false or with reckless disregard of whether
or not it was false.[FN12]
FN12. See also Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60
L.Ed.2d 115 (1979); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323,
20 L.Ed.2d 262 (1968); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87
S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Long v. Arcell, 618 F.2d 1145 (5th
 Under Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789
(1974), the plaintiff must show also that the defamatory falsehood was a false
statement of fact as opposed to pure comment or opinion.
We begin with the common ground. Under the First Amendment there is no such
thing as a false idea. However pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on the
competition of other ideas. But there is no constitutional value in false
statements of fact.
418 U.S. at 339-40, 94 S.Ct. at 3006-07.
Recent Florida decisions define the law of that state. In Palm Beach
Newspaper, Inc. v. Early, 334 So.2d 50 (Fla.Dist.Ct.App. 1976), cert. denied,
354 So.2d 351 (1977), the court applied the principles of New York Times
and Gertz to defamatory actions in Florida. In Early the court overturned a
$1,000,000 jury verdict in a libel action brought by a superintendent of
schools against a newspaper and certain members of its editorial staff. The
court found that words and phrases, such as "cheating," "stealing from the
public," and "fingers in the pot," when read in their proper context, were not
defamatory. Other charges made by the newspaper were either protected opinion
based on fact and thus not false, not made with malice under the New York Times
standard or "rhetorical hyperbole" statements made in "the conventional give
and take in our economic and political controversies." In holding that there
was no defamation, the court stated:
Suffice it to say that while most of the articles and cartoons can fairly be
described as slanted, mean, vicious, and substantially below the level of
objectivity that one would expect of responsible journalism, there is no
evidence called to our attention which clearly and convincingly demonstrates
that a single one of the articles was a false statement of fact made with
actual malice as defined in the New York Times case.
334 So.2d at 53.
In Coleman v. Collins, 384 So.2d 229 (Fla.Dist.Ct.App. 1980), the court
reaffirmed the holding of Early. The plaintiff in Coleman *1287 was the
city attorney for the City of Indian Harbour Beach. The alleged defamatory
statement was contained in a memo distributed to residents of the city. This
document accused plaintiff of "sneakyly (sic)" including a reverter clause in a
deed to the city, and contained the statement "we question the ethics of
the ... City Attorney ... and we question his fitness to continue to hold that
office." Plaintiff sued for defamation the individuals who wrote and
distributed the memorandum, and a jury awarded punitive and compensatory
damages. The district court of appeals reversed, holding these statements not
defamatory as a matter of law. Basing its holding squarely on Early, the court
found that plaintiff was a public official and that the statements "were
clearly matters of opinion, not statements of fact." 384 So.2d at 231.
 In the present case the Church contends that the following statements
allegedly made by Cazares were defamatory:
(1) An article published in the Clearwater Sun on March 24, 1976, stated in
After reading extensively in the critical literature concerning Scientology,
he (Cazares) has vowed to keep up his opposition.
He has questioned the group's political objectives and has suggested that
United Churches was a so-called "gung-ho group" that the Scientologists
established "to infiltrate the power structure" of the community.
Gung-ho groups, as described in a 1969 talk given by a Scientologist who
founded one such organization in Canada, aim "to influence what the community
thinks about Scientology." The groups involve local organizations such as civic
clubs in projects for which the gung-ho group gains credit, according to the
The gung-ho groups are names with "an inconspicuous and respectable sounding
name the Citizens' Improvement something or other" and employ "an eye-catching
symbol, professionally designed, but not a Scientology symbol ... incorporated
in the letterhead and on cards," according to a Scientology document.
Scientology spokesmen contest that description, saying gung-ho groups were
not covert and no longer exist. They say United Churches is not a gung-ho
But Cazares and other officials are not satisfied, and the Scientologists
face a potentially troublesome future if several government agencies
considering investigations of the local activities follow through.
Prosecutors at several levels of government, who first looked at the Fort
Harrison sale because of the secrecy that surrounded it, are reportedly still
following activities. And there has been pressure to have the U.S. Senate
constitutional rights subcommittee look at Scientology in its examination of
The Scientologists' strongest opponent continues to be Cazares, who takes
both the prestige of the mayor's office and the enthusiastic support of many
citizens into battle.
Cazares has compared United Churches to the generalized description of gung-
ho groups, and he has begun using some of the Scientologists' own language in
In Scientology, a "clear" is a person who learns to control his mind fully
through counseling. One self-proclaimed clear the Scientologists disavow is
mass murderer Charles Manson, subject of a recent book titled "Helter Skelter."
Cazares does not want Scientology clears to take over Clearwater, and he
supports the fears of many citizens that Scientologists are bringing to the
city a helter-skelter world and philosophy.
"I don't see," Cazares said recently, "how we can allow a group into our town
and be gung-ho about it, and be clear in our minds about it, and not go about
it in a helter-skelter fashion."
On summary judgment the court held that neither Cazares' use of the phrase
"helter-skelter" nor his statements to the press at various times critical of
the Church were defamatory.
*1288 The Church argues that "helter-skelter" was used by the Mayor in such
a way as to convey to the public that the Church was linked to Charles Manson
and was dedicated to the promotion of a general policy of mass murder. The
Mayor contends that his statement was meant as a joke and that considered in
the context in which it was made, it did not attempt to connect the Church with
a philosophy of mass murder.
While we do not find the Mayor's "helter-skelter" statement humorous, neither
do we consider it defamatory. Reading the statement in context there is no
indication that the Mayor was accusing the Church of advocating mass murder.
Apparently, "gung-ho" and "clear" have double meanings associated with
Scientology. The Church would have us infer that helter-skelter as used in the
Mayor's statement refers to the name of a book dealing with Charles Manson. We
then must infer that since Manson is considered by some but not the Church to
be a "clear," the Mayor was trying to connect the Church with Manson. Finally,
we are to infer that since Manson was a mass murderer the Mayor's comment
suggested Scientology promoted mass murder.
We are not prepared to build inference upon inference in order to find
defamatory meaning in a statement. Because the Mayor's statement was not
capable of defamatory meaning as a matter of law, the trial court was correct
in granting summary judgment. As to the other statements made by the Mayor that
were before the trial court on summary judgment, after carefully examining the
voluminous record in this case, we agree with the trial court that:
When read in their proper context, the statements made constitute merely
conclusions or opinions which express ideas which defendant had concerning a
public figure. The defendant is entitled under the public figure doctrine to
express his ideas or opinions as long as he does not maliciously make a false
statement of fact. The entire record and in particular the articles themselves
show that the defendant made no malicious, false statement concerning the
plaintiff. Therefore, the Court grants plaintiff's motion for summary judgment
as to Count II in its entirety.
(2) An article published in The Globe and Mail on May 8, 1976, stated in
Bitter clashes with Clearwater interests have resulted in millions of dollars
of claims in lawsuits and counter-suits.
And there's galloping paranoia on all sides.
One example was a worry that the Mayor's office was bugged. Clashing with the
cloying music from the ceiling speaker in the office one day was an
indecipherable conversation of two men.
"Crossed wires?" said Mayor Gabriel Cazares. "You get paranoid." Shrugging
apologetically, he calls for someone to check it out.
"You think maybe speakers can be used in reverse, like microphones," he says.
He's smiling but then he points outside to the upper floors of the Fort
Harrison Hotel overlooking everything downtown.
"Some say they could have sophisticated stuff up there that could be aimed at
these windows and pick up anything we're talking about."
The "they" to which he referred was what we were talking about: the
(3) An article published in the Clearwater Sun on January 29, 1976, stated in
He (Mayor Cazares) questioned United Churches use of armed guards and an
elaborate alarm system and the group's policy of not allowing area residents
into the building, saying this concept did not fit the basis for religious
organizations "peace and love."
"I don't like paramilitary religious organizations," he remarked.
(4) During a Lions Club luncheon speech, the Mayor stated that the Church of
Scientology was not a religious organization as "religion" was understood in
the Clearwater area, but a "rip-off, money motivated operation."
*1289 The trial court struck the allegations referring to the last three
articles quoted above on Cazares' Motion to Dismiss, ruling that they did not
state claims upon which relief could be granted based upon theories of libel or
Read in context, the statements by the Mayor quoted in The Globe and Mail
article were not defamatory. The Mayor did not allege that the Church was
engaged in illegal wiretaps. Rather, the Mayor's statements demonstrated a
paranoia-like perception of a Scientologist lurking behind every mystery, in
this case unknown voices on an office speaker.
Nor do we find Cazares' statement that he did not like paramilitary
organizations defamatory. It was simply an opinion based in fact: the statement
reflects his perception of the armed guards and security devices.
Finally, the court dismissed as not defamatory the Mayor's characterization of
the Church as a "rip-off, money motivated operation." The allegation was struck
on a 12(b)(6) motion, Fed.R.Civ.P. For purposes of a motion to dismiss, we must
assume the allegations in the petition were correct: that the statement was
made, that it was false, and that it was made with malice. Conley v. Gibson,
355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, in evaluating the
statement to determine whether the words used were capable of defamatory
meaning, the words cannot be considered in isolation but must be viewed in the
context of the statement as a whole. Here, in comparing the appellant Church to
religious organizations as religion is understood in Clearwater, the Mayor
termed appellant a money motivated rip-off. Under the most recent articulations
of Florida law (Coleman, supra, and Early, supra), the words "rip-off," read
in context, although uncomplimentary, were not defamatory as a matter of law,
and the trial court properly granted defendant's motion to dismiss.
V. The Protective Order
In April and May of 1976, the Mayor was deposed by the Church. Since that time
the Church amended its complaint and introduced what it considered to be "new"
evidence. In the spring of 1978, the Church sought to depose Cazares again
regarding this "new" information and other recent developments in the case. On
May 22, 1978, the Mayor moved for a Protective Order, stating that no new
issues had been pled since the original deposition. On May 31, the district
court granted the Motion for Protective Order, at the same time staying all
discovery until the hearing on the Motion for Summary Judgment.
The Church argues that the court erred in limiting the Church's discovery by
not allowing it to depose the Mayor nor conduct any further discovery prior to
the summary judgment hearing.
The trial court has wide discretion in determining the scope and effect of
discovery, Blum v. Gulf Oil Corporation, 597 F.2d 936 (5th Cir. 1979), and
his rulings are subject to the abuse of discretion standard of review. Perel
v. Vanderford, 547 F.2d 278 (5th Cir. 1977).
 Cazares had been deposed once. The "new" information about which the
Church wished to question the Mayor involved no issues of material fact.[FN13]
Given the trial court's knowledge of the discovery situation, the immateriality
of the Church's new evidence, and the Church's failure to offer a timely
response to Cazares' Motion for a Protective Order,[FN14] we cannot say the
*1290 trial court abused its discretion in limiting discovery.
FN13. This "new" information consisted primarily of: (1) the letter the
Mayor allegedly sent to the Secretary of State pointing out what the Mayor
thought to be violations of the Florida statutes allegedly committed by the
Church; (2) the Mayor's alleged February, 1976 visit to the Attorney
General; (3) the Mayor's statements to Reverend Popp; and (4) the Mayor's
discussion with the FBI.
FN14. The Church argues that the court granted the Mayor's Protective
Order in nine days when the local rules gave them ten days to respond to
the motion. The Church does not allege, however, that they would have
responded on the tenth day or that it was in any way harmed by the timing
of the district court's action.
VI. Attorneys' Fees
After granting defendant's motions for summary judgment, the district court
considered defendant's application, as the prevailing party in the s 1983
count, for the award of attorneys' fees. The court granted the defendant's
motion for fees and directed the parties to submit affidavits or other evidence
as to the amount thereof.
The court next conducted an evidentiary hearing in which it considered and
made findings with regard to each of the criteria suggested in Johnson v.
Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). The court's award to
Cazares of $36,021.75 in attorneys' fees is appealed by the Church.
In s 1983 actions, awards of attorneys' fees are governed by 42 U.S.C. s
1988, which states in pertinent part:
In any action or proceeding to enforce a provision of sections 1981,
1982, 1983, 1985, and 1986 of this title, ... the court, in its
discretion, may allow the prevailing party, other than the United States, a
reasonable attorneys fee as part of the costs.
The court's discretion is limited, however, to the extent that a prevailing
defendant can recover only if the plaintiff's claim was "frivolous,
unreasonable, or groundless, or ... plaintiff continued to litigate after it
clearly became so." Lopez v. Aransas County, Independent School District,
570 F.2d 541, 545 (5th Cir. 1978), citing Christiansburg Garment Co. v.
E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978).
In the present case the Church argues the action was not frivolous,
unreasonable or groundless because: (1) the court sustained the complaint for
over two years; (2) evidence supported the claim; and (3) the judge himself
stated the action presented novel legal issues.
 The fact that the court sustained the complaint for over two years
is a tribute to the trial judge's patience and fairness, not an indication of
his view of the merits.[FN15] Furthermore, as we pointed out in Part III,
supra, there was no material, admissible evidence to support the Church's civil
rights claim. Moreover, although the judge stated that the action presented
novel legal issues, this comment does not preclude a finding that the claim was
groundless. Obviously, it was the question of standing, which had little to do
with the merits of the claim, that presented the difficult legal issues.
FN15. During these two years, the complaint was amended three times,
primarily in order to clarify the defamation claims.
 We agree with the trial court that the civil rights action was
frivolous, unreasonable and groundless. Accordingly, an award of attorneys'
fees to the defendant was justified.
There is no statute providing for attorneys' fees in a diversity defamation
action. Thus, had this suit been brought only on Count II, attorneys' fees
would not have been recoverable. Fees were recoverable on Count I, however, and
here the court based its award on both the civil rights and the defamation
action. The court explained:
The terms of the statute quoted above (42 U.S.C. s 1988) would not
preclude an award for the entire case, and at least one court has found that
the provision applies to the entire case where plaintiff joins claims some of
which qualify for fees under 42 U.S.C. 1988, and which ordinarily would be
tried in one proceeding. Southeast Legal Defense Group v. Adams, 436 F.Supp.
891, 894 (D.Or.1977). The Court concludes that attorneys' fees may be awarded
for the entire case, if otherwise appropriate.
Several circuits have held that where a civil rights claim is made, a
successful claimant may also collect attorneys' fees concerning legal actions
or counts which come from or arise out of the same "nucleus of facts."
*1291 See Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) (award of
attorneys' fees proper where plaintiffs prevail on pendent nonconstitutional
statutory claim, if civil rights claim substantial and pendent claim arises
from same nucleus of facts); Kimbrough v. Arkansas Activities Association,
574 F.2d 423 (8th Cir. 1978) (fact that plaintiff prevailed on nonfederal claim
did not render inappropriate award of attorneys' fees since constitutional
claim was substantial and claims arose from same nucleus of facts); Seals v.
Quarterly County Court, 562 F.2d 390, 393-94 (6th Cir. 1977) (attorneys' fees
justified where plaintiffs filed a voting rights case under s 1983 but
actually prevailed on a state claim based on same operative facts). Maine v.
Thiboutot, 448 U.S. ----, 100 S.Ct. 2502, 65 L.Ed.2d 653 (1980); see
also (Attorneys' Fees Act applies to cases decided on statutory as well as
constitutional grounds); Maher v. Gagne, --- U.S. ----, 100 S.Ct.
2570, 65 L.Ed.2d 653 (1980) (in dicta, the Court stated, "Congress intended
fees to be awarded where a pendent constitutional claim is involved, even if
the statutory claim on which the plaintiff prevailed is one for which fees
cannot be awarded under the Act.").
 In the present case both counts arose out of the same nucleus of facts.
Indeed, the first complaint filed by appellant alleged the defamatory
statements by defendant as a part of the s 1983 claim. Because a defamation
claim may not serve as the basis of a s 1983 suit, appellant was required to
amend its complaint and plead the alleged defamation as a separate count.
Appellants did not file the Third Amended Complaint until two years after the
original complaint. Under these circumstances, it would be impossible to
accurately apportion the time appellee's attorneys spent on the civil rights
claim and on the nonfederal defamation claim. We hold, therefore, that the
district court did not err in granting attorneys' fees for the entire case.
Appellant next argues that the district court erred in awarding attorneys'
fees to Cazares in view of the fact that he was covered by insurance. According
to the Church, under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974), a party cannot be awarded a higher fee than he is
contractually obligated to pay: since Cazares was covered by insurance, he was
not contractually obligated to pay any fee and thus should not be awarded any
 This argument ignores Cazares' attorney's statements that Cazares'
insurance was one of indemnity: that the company was not required to pay unless
Cazares was obligated to pay after termination of the case. See also Perez
v. Rodriguez Bou, 575 F.2d 21 (1st Cir. 1978), where an award of attorneys'
fees was not precluded by the fact that the litigants were represented by
attorneys of a publicly funded corporation and were not charged for legal
services they received in a 42 U.S.C. s 1983 action.
Finally, appellant contends that the court erred in awarding Cazares
attorneys' fees without allowing the Church to depose Cazares' attorneys as to
the time and nature of their services. Cazares' attorneys argue that the
Church's proposed depositions were acts of harassment and that forcing the
attorneys to go over their time slips would be an undue burden. The judge
issued a protective order and held an evidentiary hearing at which the question
of discovery was considered. The court then ordered the case to proceed without
further discovery as to the exact amount of time expended by Cazares'
 It does not appear that further discovery was warranted. The Church had
interrogated Cazares' attorney at length. The attorney had provided in his
affidavit a detailed record of time spent and duties performed. Besides, under
Johnson, time spent on a claim is only one factor to be considered in the award
In Cruz v. Beto, 453 F.Supp. 905 (S.D.Tex.1977), aff'd, 603 F.2d 1178
(5th Cir. 1979), the district court noted:
defendants apparently misconstrue the role of the Court in computing a
reasonable fee. The Court is not required to calculate, nor are plaintiffs
obligated to prove, a reasonable fee with "mathematical precision". Johnson,
supra at 720. This is especially true where the need for *1292 documentation
and specific listings of times and dates to support plaintiffs' request is at a
minimum because of the Court's intimate acquaintance with the litigation.
Rather, so long as the Court can reasonably ascertain, either on the basis of
supporting time sheets or through its independent perception of counsel's
efforts and abilities, that the hours claimed by counsel in their affidavits
are a rational reflection of the services performed, the prevailing party will
have fulfilled its burden of proof. Thus, although the preferable and less-
risky course of action is for counsel to keep detailed time records to be
submitted with a fee request, counsel's failure to do so is not fatal to
plaintiff's application in this particular case.
 Here, the court indicated it was intimately familiar with the
litigation and was satisfied with the correctness of its award which it
considered extremely low. We find no abuse of discretion.
In summary, we hold: (1) the Church had representative standing in the s
1983 action; (2) the district court correctly dismissed three allegedly
defamatory allegations; (3) the district court correctly entered summary
judgment on both counts; (4) the district court correctly found the civil
rights claim was frivolous, groundless, and unreasonable and appellee was
entitled to attorneys' fees; (5) the fees were properly based upon the entire
case, both counts arising from one nucleus of facts; (6) the district court
correctly awarded attorneys' fees to Cazares although he was covered by
insurance; and (7) the district court correctly refused to allow the Church to
depose Cazares' attorneys as to the time and nature of their services.
Accordingly, the judgment is AFFIRMED.