CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., Plaintiff,
v.
Bernard GREEN and Barbara Green, Defendants.
No. 69 Civ. 5745.
United States District Court,
S. D. New York.
Feb. 9, 1973.
Proceeding on counterclaim for libel brought by members of church against
church. The District Court, Levet, J., held that where third party saw a copy
of alleged libelous writ of expulsion issued by the church in normal course of
his duties as executive secretary worldwide for the church and as a member of
executive council, and the writ was properly brought to such third party by
executive officers of the church, such communication to third party was subject
to a qualified privilege and did not constitute a "publication."
Counterclaim dismissed.
[1] FEDERAL COURTS
In cases founded upon diversity of citizenship, a federal district court
applies substantive law of state wherein it sits, including rules of conflict
of law prevailing in that state.
[2] FEDERAL COURTS
New York's rule of conflict of law furnished guide for resolution of choice of
law issue arising in diversity action for libel brought in federal district
court for Southern District of New York.
[3] TORTS
Under New York's rule of conflict of law, substantive law applicable to an
alleged tort is the place which has the most significant relationship with the
subject matter of the tort charged.
[4] LIBEL AND SLANDER
Substantive law of New York governed diversity action for libel brought in
United States District Court for Southern District of New York, where receipt
of alleged libelous statement took place in New York, and alleged publication,
in all but one instance, took place in New York.
[5] LIBEL AND SLANDER
There can be no libel, regardless of nature of statement, unless there is
publication.
[6] LIBEL AND SLANDER
Mere receipt of an alleged libelous statement by one claiming to be defamed
does not establish libel.
[7] LIBEL AND SLANDER
There is no publication if defamatory statement is exposed to a third party by
person claiming to be defamed.
[8] LIBEL AND SLANDER
A communication made between officers within organizational structure of a
church, or a corporation, made in good faith, on any subject in which the one
communicating has an interest or in which there is a duty, is privileged if
made to a person having a corresponding interest or duty, even though it
contains matter which, without this privilege, would be actionable; such is
case even though duty is not a legal one but only a moral or social duty or
obligation.
[9] LIBEL AND SLANDER
Where third party saw a copy of alleged libelous writ of expulsion issued by
church in normal course of his duties as executive secretary worldwide for the
church and as a member of executive council, and the writ was properly brought
to such third party by executive officers of the church, such communication to
third party was subject to a qualified privilege and did not constitute a
"publication," hence there was no libel.
See publication Words and Phrases for other judicial constructions and
definitions.
[9] LIBEL AND SLANDER
Where third party saw a copy of alleged libelous writ of expulsion issued by
church in normal course of his duties as executive secretary worldwide for the
church and as a member of executive council, and the writ was properly brought
to such third party by executive officers of the church, such communication to
third party was subject to a qualified privilege and did not constitute a
"publication," hence there was no libel.
See publication Words and Phrases for other judicial constructions and
definitions.
[10] LIBEL AND SLANDER
Evidence failed to show publication on part of church of alleged libelous writ
of expulsion.
*801 Silk, Slonim & Young, New York City, for plaintiff; Howard Slonim, New
York City, Joel Kreiner, Los Angeles, Cal., of counsel.
John J. Seffern, New York City, for defendants.
LEVET, District Judge.
The present action, by way of a counterclaim, is for libel brought by
defendants Bernard Green and Barbara Green against plaintiff The Church of
Scientology of California, Inc. (sometimes referred to as "the Church"). One
of the original claims of the Church sought to enjoin the Greens from holding
themselves out as "bona fide" ministers of the Church. All claims of the
Church have been withdrawn.
Although the case has been completely tried, the sole issue for determination
presently before this court is whether there was publication of the alleged
libelous statement. Obviously, if there is no publication then there is no
libel. Other issues, although tried, have been deferred pending a decision on
this limited issue.
After hearing the testimony of the parties, examining the exhibits, the
pleadings, the Proposed Findings of Fact and Conclusions of Law with respect to
the issue of publication, this court makes the following Findings of Fact and
Conclusions of Law:
FINDINGS OF FACT
1. This court has jurisdiction over the subject matter of the litigation and
the parties hereto.
2. The Church of Scientology of California, Inc. is a non-profit corporation,
incorporated under the laws of the State of California, with its principal
place of business in Los Angeles, California. [FN1] (288 [FN2]; Ex. 6.)
FN1. For a thorough discussion of the structure, history and goals of the
"unusual" Church of Scientology see the extraordinarily able opinion of
Judge Skelly Wright in Founding Church of Scientology v. United States,
133 U.S.App.D.C. 229, 409 F.2d 1146 (1969). See also, Founding Church
of Scientology v. United States, 188 Ct.Cl. 490, 412 F.2d 1197 (decided
July 16, 1969); Church of Scientology v. United States, United States
Court of Claims No. 226-61 (decided August 7, 1968).
FN2. Numbers in parentheses, unless otherwise specified, refer to the
stenographic minutes of the trial before this court on October 4, 5, and 6,
1972.
3. Bernard Green and Barbara Green reside at 685 West End Avenue, New York,
New York, and are presently operating from that address an unincorporated
association known as the "International Awareness Center."
Bernard Green became a member of Scientology in 1953 and received training for
several years thereafter. He held a "franchise" of the Church of Scientology
and was operating said franchise in 1969. In such a capacity he conducted
spiritual counseling. (17-34, 38-43, 69.)
*802 Barbara Ferraro married Bernard Green in 1968 and together they
operated the Scientology franchise. (170-171.)
On or about November 20, 1969 the Scientology franchise held by the Greens was
cancelled by a notice from the Church of Scientology of New York. (123-124;
Ex. 3.)
4. On December 10, 1969 a document from the Church bearing the heading, "Writ
of Expulsion," was received by Bernard Green in the mail. The document, dated
December 3, 1969, contained the alleged libelous statement:
"1. Further evidence found indicts Bernard Green of attempted blackmail of
parishioners he has counseled." (50-52; Ex. B.) [FN3]
FN3. Exhibit B is Appendix I hereto. In this opinion I am proceeding on
the presumption that this statement is libelous.
Clarice Jackson, an Ethics Officer and member of the Church of Scientology of
California, authored the writ which was sent to Bernard Green. After the
formulation of the writ Jackson personally carried it to Fred Hare and Hanna
Eltringham, officers of the Church, for their approval. The names of Jackson,
Hare and Eltringham appear on the writ (Ex. B) as co-originators. Jackson then
typed the original handwritten draft onto a stencil. Two copies of the stencil
were then mimeographed, in Jackson's presence, by one James Isaacson. Isaacson
was a L. Ron Hubbard (LRH), [FN4] Communicator, whose duties were "to watch the
organization, that it was running correctly, that it was following the
prescribed policy ... and that the ethics decisions that came down were done
correctly ..." (374.) In such a capacity Isaacson was responsible for
mimeographing ethic orders such as the writ sent to Bernard Green. (325-326,
374-375; Ex. B.)
FN4. L. Ron Hubbard is the founder of Scientology and resides somewhere at
sea. (260.)
Clarice Jackson mailed one copy of the writ to Bernard Green and placed the
other copy in the locked files of the Church. (339-342.)
The original writ prepared by Clarice Jackson differed from the letters or
copies of the writ claimed by the Greens to have been received by other members
of the Church (Ex. B) in three respects:
(A) It did not have a border of approximately two inches from the top and
bottom edges of the paper;
(B) There were no initials on the original prepared by Jackson as found in the
lower left corner of Exhibit B;
(C) The writ, when mailed by Jackson, was placed in a white envelope and
folded in thirds. There is no indication on Exhibit B, the writ received by
Bernard Green, that it had been folded.
6. Bernard Green's allegation of publication by the Church is not supported
by the credible evidence.
Green contends that there was publication of the writ when it was mailed in
California and received in New York by Barbara Green, Michael Gerson, Michael
Kates, Frank Catricola and Allan Ferguson.
(A) Barbara Green testified that she first saw a copy of the writ when her
husband showed it to her. (159-160.) This, obviously, is not a publication on
which a libel action can be based since Bernard Green himself "published" it.
(B) Michael Gerson, who had received counseling from Bernard Green in 1969,
testified that he received a copy of the writ on October 4, 1969. Gerson said
the letter came in a business envelope and that it was folded in thirds. (148-
149.) Furthermore, he had no definite recollection from whom or from which
branch of the Church of Scientology, if any (California or New York), the
letter came. (241-243.)
(C) Michael Kates, who received counseling from Bernard Green, testified that
he received a copy of the writ in the mail in December of 1969. He also
conceded that he did not know where the writ came from. (233-242.)
(D) Frank Catricola, who received counseling from Bernard Green, testified
*803 that he received a copy of the writ on or about December 15 or 16,
1969. He did not testify as to where the writ came from. (273-276.)
(E) Allan Ferguson, the Executive Secretary World Wide for Scientology and a
member of the Executive Council, working in England in 1969, testified that he
saw a copy of the writ in the course of his official duties in December 1969.
Ferguson said that the writ was brought to him by executive officers either
Roger Wright, a LRH Communicator, or by Jane Kember, who was the Deputy
Guardian or Guardian World Wide of the Church of Scientology. Ferguson passed
the copy of the writ on to Hubbard "wherever he might have been." (259-261.)
Ferguson had a duty to see the writ. Accordingly, there was no publication.
I find that publication of the alleged libelous writ has not been shown
through any of the aforementioned witnesses.
In summary, I find that there was no publication of the alleged libelous
statement.
DISCUSSION
Bernard and Barbara [FN5] Green bring this action for libel against the Church
of Scientology of California, Inc.
FN5. In disposing of this case I have not considered the question of
whether Barbara Green is a proper party, although it would seem that she
has no right af action since her husband was the one allegedly defamed.
[1][2][3][4] The basic choice-of-law question requires no extended
discussion. What law applies, New York or California? In such cases as this,
founded upon diversity of citizenship, a federal district court applies the
substantive law of the state wherein it sits, including the rules of conflict
of law prevailing in that state. Klaxon Co. v. Stentor Electric Mfg. Co.,
313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Jaftex Corp. v. Randolph
Mills, Inc., 282 F.2d 508 (2d Cir. 1960). New York's rule of conflict of law,
therefore, furnishes the guide. It plainly provides that the substantive law
applicable to an alleged tort is "the place which has the most significant
relationship with the subject matter of the tort charged." Nader v. General
Motors Corp., 25 N.Y.2d 560, 307 N.Y.S.2d 647, 255 N.E.2d 765 (1970). See
also Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279
(1963). Accordingly, the substantive law of New York governs. Bernard Green
is a citizen of the State of New York. Receipt of the alleged libelous
statement by Bernard Green took place in New York. Alleged publication, in all
but one instance (i. e., Ferguson) took place in New York. New York thus has
the greatest interest in the outcome of the litigation.
The only substantive issue presently before this court for determination is
whether or not there was publication of the alleged libelous statement.
On December 10, 1969 a "Writ of Expulsion" (Ex. B) was received in the mail by
Bernard Green from the Church. The writ or letter contained the alleged
libelous statement:
"Further evidence found indicts Bernard Green of attempted blackmail of
parishioners he has counseled." (Ex. B.)
[5][6] It is elementary that there can be no libel, regardless of the
nature of the statement, unless there is publication. Mere receipt of an
alleged libelous statement by the one claiming to be defamed does not establish
libel.
Law in the field of defamation has changed considerably in a short span of
time. However, an enunciation of Judge Cardozo in Ostrowe v. Lee, 256 N.Y.
36, 175 N.E. 505 (1931) is "as good as new":
"In the law of defamation, 'publication' is a term of art.... A defamatory
writing is not published if it is read by no one but the one defamed.
Published, it is, however, as soon as read by any one else. [Citations
omitted.]" (At p. 38, 175 N.E. at p. 505.)
*804 [7] Furthermore, there is no publication if the defamatory
statement is exposed to a third party by the person claiming to be defamed.
Horovitz v. Weidenmiller, 53 N.Y.S.2d 379 (S.Ct. N.Y.1945); Shepard v.
Lamphier, 84 Misc. 498, 146 N.Y.S. 745 (1914); Galligan v. Kelly, 31 N.Y.S.
561 (Sup. 1894).
The evidence unequivocally establishes that the Church issued only two
"original" Writs of Expulsion. One writ was mailed to Bernard Green in New
York, while the other was maintained in the locked files of the Church.
Clarice Jackson, an Ethics Officer of the Church, charged with the
responsibility of issuing such writs, drew up the writ in question. She had the
writ cosigned, as required by the rules and regulations of the Church, and
then personally drew up the stencil for the two "original" mimeographed
documents. Furthermore, the physical dimensions of the writ prepared by
Jackson differ from that document allegedly received by Green and others-that
is, it did not have a border of approximately two inches, there were no
initials in the lower left hand corner and the writ, when mailed, was folded
into thirds.
Bernard Green attempts to establish publication by alleging that the writ was
received by others. However, his proof falls far short of the requisite and
fails to rebut the well-documented steps taken by Clarice Jackson.
Bernard and Barbara Green put on the stand several persons who claimed that
they received a letter or a copy of the writ in the mail. However, not one
witness was certain that the writ came from the California church. Even
approaching the situation in the light most favorable to claimants and assuming
that every witness testified that the writ came from the Church of Scientology
of California, this does not counteract the testimony given by Clarice
Jackson. Indeed, a speculative argument could be made that it was not the
Church of California from whom these persons received the writ but from the
defendants, the Greens. There is testimony that the copies received by other
persons were Xeroxed copies. (328.)
In one instance the Greens' contention of publication is plausible but falters
upon close examination.
The proof clearly establishes that Allan Ferguson, the Executive Secretary
Word Wide for Scientology, received, in England, a copy of the alleged libelous
writ. On its face this constitutes publication; exhibition of a libelous
document to a third party.
[8] However, the publication in this instance is subject to a qualified
privilege and is, therefore, permissible. A communication made between
officers within the organizational structure of a church, or a corporation for
that matter, made in good faith, on any subject in which the one communicating
has an interest or in which there is a duty, is privileged if made to a person
having a corresponding interest or duty, even though it contains matter which,
without this privilege, would be actionable. Such is the case even though the
duty is not a legal one but only a moral or social duty or obligation. John
W. Lovell Co. v. Houghton, 116 N.Y. 520, 22 N.E. 1066 (1889); Garriga v.
Townsend, 285 App.Div. 199, 136 N.Y.S.2d 295 (1954); Doyle v. Clauss, 190
App.Div. 838, 180 N.Y.S. 671 (1922); 26 Brooklyn L. Rev. 147.
[9] Allan Ferguson saw a copy of the writ in the normal course of his
duties as Executive Secretary World Wide for Scientology and as a member of the
Executive Council. The writ was properly brought to Ferguson by a LRH
Communicator or by the Deputy Guardian of the Church, both executive officers.
Assessed within the light of the peculiar structure of the Church of
Scientology, such communication to Ferguson was subject to a qualified
privilege and does not constitute a publication.
[10] On the totality of the evidence the Greens have failed to show
publication on the part of the Church and, *805 indeed, "until the
publication, the act is not complete in its mischief. Before it is dispersed
abroad, it can produce no present or actual injury, either to the public or to
the individual, and until then there is a locus penitentioe on the the part of
those concerned in the composing and writing." Youmans v. Smith, 153 N.Y.
214, 218, 47 N.E. 265, 266 (1897).
CONCLUSIONS OF LAW
1. The court has jurisdiction over the subject matter of the litigation and
the parties hereto.
2. Defendants Bernard Green and Barbara Green have failed to prove that
plaintiff, Church of Scientology of California, Inc., published or caused
publication of the alleged libelous statement.
3. Plaintiff, Church of Scientology of California, Inc., is entitled to
judgment dismissing the counterclaim but without costs.
Settle judgment on notice pursuant hereto.
APPENDIX I
(GOLDENROD PAPER)
WRIT OF EXPULSION
December 3, 1969
To: Those Concerned
From: MAA AOLA
Subject: Additions to Writ, 19 November-Bernard Green.
1. Further evidence found indicts Bernard Green of attempted blackmail of
parishioners he has counselled.
2. He is, further, guilty of contributing to the destruction of a high
ranking Church member by his vicious and damaging rumours concerning the Church
and Scientologists of good standing.
3. He has continued to pretend connections to the Church of Scientology,
and is continuing his misuse of counseling materials.
4. Prosecution for the illegal use of copyrighted Church counselling
materials will follow.
5. BEWARE of the person. He is not to be trusted in any way.
Ens. Clarice Jackson
MAA AOLA
for
Ens. Fred Hare
Captain AOLA
for
Cmdr. H. Eltringham
Deputy Commodore Flotilla
HE:FH:CJ:dr