"Fair Game": Leveling the Playing Field in Scientology Litigation

By Kumar, J. P. | The Review of Litigation, Summer 1997 | Go to article overview

"Fair Game": Leveling the Playing Field in Scientology Litigation


Kumar, J. P., The Review of Litigation


I. Introduction

In the arena of religious litigation, the past twenty years have shown no litigant more fearsome or intimidating than the Church of Scientology. Whether defending against claims of abuse and fraud, pursuing individuals for defamation or copyright infringement, or even litigating against government agencies, the Church has acquired a well-deserved reputation for extremely aggressive litigation tactics, commonly referred to as "hardball."1

Much to the Church's chagrin, opponents frequently cite its own founder, L. Ron Hubbard, for the "fair game doctrine," a revealing statement that may explain the ferocity and zeal of the organization's litigation stance.2 Hubbard, who issued directives for the Church on virtually every matter, once wrote that enemies "may be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist [and] may be tricked, sued, or lied to, or destroyed."3 The Church itself claims that the command only meant that those who left the Church would not be protected from outsiders and argues that Hubbard retracted this declaration in the 1960s anyway precisely because of this widespread misinterpretation.4 However, the following clause about litigation in particular is attributed to Hubbard:

The only way to defend anything is to attack, and if you ever forget that, then you will lose every battle you are ever engaged in, whether it is in terms of personal conversation, public debate, or a court of law . . . The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway . . . will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly.5

Whatever the Church's official policy on perceived enemies and actual opponents, there is little question that the Church has practiced a confrontational litigation strategy that has frustrated judges as well as opponents.

The Church's approach and the nature of the litigation in question has presented the legal system with the perplexing problem of accommodating clashing interests of constitutional magnitude. First, the involvement of the Church of Scientology as a party may implicate the concerns of the Religion Clauses of the First Amendment, which, in conjunction with the Fourteenth Amendment, prohibit state and federal governments from either impermissibly burdening the free exercise of religion or from promoting the establishment of religion.6 Second, the Church's frequent forays into defamation and intellectual property to attack critics or prevent publication of internal information have raised important First Amendment issues of freedom of speech. Finally, the combativeness of the Church has challenged the ability of the legal system to maintain impartial control over legal proceedings and to function in an orderly and efficient manner. This Note aims to examine the problems that have arisen in typical Scientology cases and to discuss various ways to restore balance and order to these cases at the outer edge of religious litigation.

This Note will avoid an evaluation of the substantive merits of the litigation by and against the Church of Scientology. In order to do so, this Note will first proceed on the assumption that the Church of Scientology is indeed a legitimate church for legal purposes, avoiding the threshold controversy that has animated much of the public discussion of this organization. Second, the Note will assume the validity of each of the purposes driving the aforementioned clashing interests and leave the balancing of them to the courts.

II. Litigation Tactics

A. Relentless Litigation

Perhaps the most obvious feature of the Church of Scientology's use of the legal system is the sheer volume of litigation initiated by the Church in both offensive and defensive situations. In 1991, Time magazine reported that the Church, fueled by an annual litigation budget of twenty million dollars and a team of more than a hundred lawyers, had hundreds of suits pending. …

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