OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




            CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff-Appellant,
                                       v.
                      Gabriel CAZARES, Defendant-Appellee.
                             Nos. 78-3100, 79-1840.
                         United States Court of Appeals,
                                 Fifth Circuit.
                                 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
 not defamatory.
  Affirmed.

 [1] 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.
 Amend. 1.

 [2] 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.

 [3] 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.

 [4] ASSOCIATIONS
 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.

 [5] 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.

 [6] 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.
 1.

 [6] 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.
 1.

 [7] 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.

 [8] 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.

 [9] 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.

 [10] 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.

 [11] 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.

 [12] 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.

 [13] 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.

 [14] 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.

 [15] 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.

 [16] 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.

 [17] 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.

 [18] 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
 opinion.

 [19] 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.

 [20] FEDERAL CIVIL PROCEDURE
 Trial court did not abuse its discretion in granting protective order limiting
 discovery.

 [21] 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.

 [22] 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.

 [23] 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.

 [24] 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
 1983, 1988.

 [25] 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
 1988.

 [26] 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.

 [27] 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
 plaintiff-appellant.
  John T. Allen, Jr., Walter D. Logan, St. Petersburg, Fla., for defendant-
 appellee.
  Appeals from the United States District Court for the Middle District of
 Florida.

  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.
  I. Background
  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.
  II. Standing
  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
 own rights.
  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
 inarticulate.
  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
     reason:
     "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
     representative capacity.
     318 F.2d at 104-05.

  [1] 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
 stated:
   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
 action.
  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 [2] 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
 jurisdiction.
  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).

  [3][4] 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.
  [5] 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.
  [6][7] 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
     provision.
     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.
  [8] 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:
     FIRST COUNT
     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
     sentiments:
     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
     it espouses;
     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 [9] (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.
  [10] (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
 further.
  (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.
  [11] 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
 the authorities.
  [12] (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.
  [13] (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.
  [14] 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.
  [15] 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:
     Second Count
     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
     particularly:
     (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:
     SECOND COUNT
     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 [16] 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.
  [17] 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
     Cir. 1980).

  [18] 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.
  [19] 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
 pertinent part:
   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
 talk.
   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
 group.
   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
 religious cults.
   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
 attacking them.
   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
 pertinent part:
   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
 Scientologists.
  (3) An article published in the Clearwater Sun on January 29, 1976, stated in
 pertinent part:
   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
 slander.
  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).
  [20] 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.
  [21][22] 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.

  [23] 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.").
  [24] 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
 fee.
  [25] 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'
 attorneys.
  [26] 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
 of fees.
  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.
  [27] 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.

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