Amicus Curiae Brief — Local Church, The v. Harvest House Publishers (No. 06-1520)

No. 06-1520

IN THE

Supreme Court of the Anited States

THE LOCAL CHURCH, LIVING STREAM MINISTRY, £7 -1L.,

Petitioners,

Vv.

HARVEST HOUSE PUBLISHERS,

JOHN ANKERBERG, AND JOHN WELDON

Respondents.

On Petition for Writ of Certiorari to

the Court of Appeals for the First District of Texas

BRIEF OF CHRISTIAN RESEARCH INSTITUTE,

ANSWERS IN ACTION, NEIGHBORING FAITHS PROJECT,

HANK HANEGRAAFF, GRETCHEN PASSANTINO,

JOHN MOREHEAD AND RUTH A. TUCKER

AMICI CURIAE IN SUPPORT OF PETITIONERS

Douglas W. Alexander

Counsel of Record

Alexander Dubose Jones & Townsend LLP

315 Congress Avenue, Suite 1720

Austin, Texas 7870]

(312) 482-9300

Counsel for Amici Curiae

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

TABLE OF AUTHORITIES

INTERESTS OF THE AMICI CURIAE

TABLE OF CONTENTS

SPSS SEEH HEHEHE SEEHERHESEE SESE SE HEOHESESOS

INTRODUCTION AND SUMMARY OF ARGUMENT....3

ARGUMENT

I.

II.

IIT.

The court of appeals’ sweeping holding that the

term “cult” is not capable of defamatory

meaning—even when criminal and abhorrent

conduct is ascribed to those labeled with that

term—raises significant concerns in the religious

community because it allows religion to be used

as a cloak for intentional, and potentially

destructive, defamation of religious groups. ............

This Court should clarify the law at the

intersection of the Establishment Clause and the

law of defamation—falsely labeling a group a

“cult” in the theological sense should not be

actionable, but falsely labeling a group a “cult” in

a secular sense Should be. ..............ccccccssocceccssccsccceces

The Establishment Clause is not implicated in this

case because those labeled “cults” in the ECNR

were so labeled not merely in the theological

sense but also in the secular sense, and the Local

Church’s claims are based on the latter not the

SEES LIE Ne SE CN eae ER ee OE

CONCLUSION

SESS TOSSES ES OESES SES ERESEEHOHE EEE EHESEEHES EERE DESHEHEEEOCEEODE

PRESS HSHO HEHE SETHE SETHE SHES HHEREH ESHEETS E EES EESHEHHSEES ESTE EE ED

near 4

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ciate 7

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Harvest House Publishers v. Local Church, 190 S.W.3d

OT asc cecca cae tba dinssnsstnnisrescsnevccncaveceess 4

Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 776

(Tex. App.—Texarkana 1995, writ denied) ..................04. 6

Kennedy v. Children’s Service Society of Wisconsin,

WAP EE 6

Sands v. Living Word Fellowship, 34 P.3d 955, 960

( AS Br ah sahcesianisnscnsnsssosscresccncccees 6, 7

STATUTES

U.S. CORI, IRs cacssisssnnsecesescessesee passim.

OTHER AUTHORITIES

Christianity in Crisis, Hank Hanegraaff, pp. 42-43 ........... 4,5

Christianity Today, March 2006 issue ................::ssseeesseeseeeess 5

CIEE Ge Far cere idittatnscnesaycavessecscseccscoseccnses 7

I Oe Fee scsi cisssnensssccrsccercsccrscsceee 7

INTERESTS OF THE AMICI CURIAE’

Amicus curiae Christian Research Institute (CRI) is an

organization that provides carefully researched information

regarding cults and is the largest apologetics ministry in the

world. Amicus curiae Answers in Action, with co-founder

Gretchen Passantino, is a non-profit organization based in

Costa Mesa, California, that produces articles and newsletters

and sponsors classes and seminars in apologetics, evangel-

ism, philosophy, and theology. Amicus curiae Neighboring

Faiths Project with its founder, John Morehead, is an evan-

gelical apologetics organization that provides research and

writing in the area of new religious movements. Amicus cu-

riae Dr. Ruth A. Tucker, is an evangelical author and former

Professor of Missions at Calvin Theological Seminary.

These amici understand from their many years of experi-

ences studying and writing about cults that there is no label

more damning and destructive that can be attached to a reli-

gious group. Amici agree that the Establishment Clause pro-

tects from defamation liability describing a group as a “cult”

in a theological sense (i.e. that the group is “heretical” or de-

parts from historical Christianity). However, this case is

about labeling a group a “cult” in a secular sense, and attrib-

uting abhorrent—even criminal—conduct to the group, in-

cluding such things as child molestation, rape, and murder.

Amici are concerned that if religious publishers and broad-

casters are granted immunity to freely, and falsely, tar reli-

' Pursuant to Rule 37.6, amici affirm that no counsel for a party au-

thored this brief in whole or in part and that no person other than

amici and their counsel made a monetary contribution to its prepa-

ration or submission. The parties’ letters consenting to the filing of

this brief have been filed with the Clerk’s office. Outside counsel

for amici, Douglas W. Alexander, served as lead counsel for peti-

tioner in this case in the petition for review proceeding before the

Supreme Court of Texas. Mr. Alexander has since ceased to repre-

sent Petitioner in this matter.

2

gious groups in such a manner, the result will be to silence

such groups merely because they are not “mainstream.”

None of the amici is a party to this proceeding. Amici

urge this Court to grant certiorari.

3

INTRODUCTION

AND SUMMARY OF ARGUMENT

As the Alaska Supreme Court has recognized, the Estab-

lishment Clause protects from defamation liability describing

a religious group as a “cult” in a theological sense. How-

ever, as the Seventh Circuit has recognized, falsely using the

label “cult” in the secular sense is subject to defamation li-

ability. The court below held otherwise, concluding that, be-

cause “cult” is a religious term per se, its use is never action-

able in defamation.

This case lies at the intersection between the Establish-

ment Clause and the law of defamation. Where, as here, a

publication falsely labels a religious group a “cult” in the

secular sense, and attributes to such group abhorrent, and

even criminal, conduct, the Establishment Clause should not

protect such speech. Yet the court below held that such

speech is protected. This Court should grant certiorari to

clear up the confusion that lies at the heart of First Amend-

ment jurisprudence.

4

ARGUMENT

I. The court of appeals’ sweeping holding that the term

“cult” is not capable of defamatory meaning—even

when criminal and abhorrent conduct is ascribed to

those labeled with that term—traises significant con-

cerns in the religious community because it allows re-

ligion to be used as a cloak for intentional, and poten-

tially destructive, defamation of religious groups.

The court of appeals holds in sweeping fashion that the

term “cult” is not capable of defamatory meaning because it

is per se an “ecclesiastical” term:

[W]e conclude that being labeled a “cult” is not ac-

tionable because the truth or falsity of the statement

depends on one’s religious beliefs, an ecclesiastical

matter which cannot and should not be tried in a

court of law.

Harvest House Publishers v. Local Church, 190 $.W.3d 204,

211 (Tex. App.—Houston [1* Dist.] 2006, pet. denied). The

fundamental problem with this statement, from the perspec-

tive of those in the religious community, is that the term

“cult” is not merely an ecclesiastical or theological term. To

the contrary, the term “cult” in general social discourse is

most often used in a sociological or secular context, referring

to a group whose practices are fraudulent, deceptive, authori-

tarian, manipulative, morally reprehensible, and criminal.

Such use does not necessarily include a theological frame-

work (i.e., referring to a group whose behavior is “cultic” and

whose beliefs diverge from “accepted” doctrines of historic

Christianity’).

The court of appeals’ decision confuses this distinction

and, in so doing, establishes dangerous precedent. In CRI’s

40 years of professional experience, the term “cult” and its

behavioral connotation has frequently been utilized as a code

ee ee

? Christianity in Crisis, Hank Hanegraaff, pp. 42-43. The authors

of ECNR also acknowledge this issue on pp. XXI-XXII of ECNR.

5

word to impute crimes and immorality to groups labeled as

cults. This use of the term has been a matter of concern for

Christian apologists and secular religious scholars who write

about other religions. |

As far back as the 1970s, authors have acknowledged the

use of the term “cult” by “secular anti-cultists” to refer to

groups that are purportedly “sociologically destructive.”

Christianity Today recently discussed the problematic use of

the term “cult” in society:

Still, the word cult is a problem. For better or worse,

it has shifted in meaning and has become associated

with bizarre groups like the People’s Temple and

Heaven’s Gate. To write about cults and include

groups like the Local Church is to plant an unfortu-

nate association in people’s minds—no matter how

many qualifications are made. We would all be wise

to drop the word, except for the most extreme in-

stances.”

By broadly holding that under no circumstance is the

term “cult” actionable—based on a failure to distinguish be-

tween the theological and secular uses of the term—amici

are concerned about the precedent established by the Texas

court of appeals’ decision. That decision, under the rubric of

“cult as a religious term,” essentially allows religious pub-

lishers and broadcasters to freely tar those religious groups

with whom they disagree. Not only may publishers freely

label such groups “cults,” but they can also ascribe to such

groups, under the “cult” label, secular wrongdoings—

including criminal conduct—that in any other nonreligious

context would be actionably defamatory. This threatens to

upset the balance between an entity’s right to free speech

versus the protection of the reputations and religious liberties

of small religious groups. In other words, the Texas court’s

3 Christianity in Crisis at 43.

* Christianity Today, March 2006 issue.

6

decision essentially allows religion to be a cloak for inten-

tional defamation, under circumstances where no such cloak

should exist.

Il. This Court should clarify the law at the intersection

_ of the Establishment Clause and the law of defama-

tion—falsely labeling a group a “cult” in the theologi-

cal sense should not be actionable, but falsely labeling

a group a “cult” in a secular sense should be.

Amici agree that describing a religious group as a “cult”

in a theological sense, even if false, should be protected from

being actionably defamatory by the Establishment Clause.

This was essentially the holding of the Alaska Supreme

Court in Sands v. Living Word Fellowship, 34 P.3d 955, 960

(Alaska 2001) (describing a religious group as a “cult” was

protected by the First Amendment where it constituted noth-

ing more that a “pronouncements of religious belief and

opinion.”).

On the other hand, falsely labeling a group a “cult” in a

secular sense should be actionable, given the opprobrium at-

tached to that term in modern society.” The Seventh Circuit

recognized this point in Kennedy v. Children’s Service Soci-

ety of Wisconsin, 17 F. 3d 980, 984 (1994) (holding that

“statements that the Kennedys were unsuitable parents be-

cause they belonged to a cult could give rise to a claim of

defamation.”). The result should be no different merely be-

cause the person doing the false labeling happens to be a re-

ligious publisher or broadcaster, and that the group falsely

labeled a “cult” happens to be a religious group. Yet the de-

cision of the court below conflicts with the Seventh Circuit’s

* See Hooper v. Pitney Bowes, Inc., 895 $.W.2d 773, 776 (Tex.

App.—Texarkana 1995, writ denied) (“In these times, a high de-

gree of opprobrium has attached to terms such as ‘cultist,’ [and}

‘occult’. ... False accusations against or characterizations of per-

sons using those and similar terms, we believe, can certainly be

considered to be beyond all bounds of decency and to be atrocious

and utterly intolerable in a civilized society.”).

7

holding because it concludes that the term “cult” is religious

per se and therefore never actionable. The Court should

grant certiorari to resolve this conflict.

III. The Establishment Clause is not implicated in this

case because those labeled “cults” in the ECNR were

so labeled not merely in the theological sense but also

in the secular sense, and the Local Church’s claims

are based on the latter not the former.

Unlike in Sands, 34 P.3d at 960, where the term “cult”

was used exclusively in the theological sense, here it was

used in the secular sense as well. This is revealed by the text

of the ECNR itself. The authors make expressly clear that

they intend for readers to also interpret the term in the secu-

lar sense, accompanied by its full contemporary opprobrious

force:

Used properly, the term ‘cult’ also has particular

value for secularists who are unconcerned about

theological matters yet very concerned about the

ethical, psychological and social consequences of

or a term like ‘heretical’ [is] irrelevant to

many people. While ‘spiritual counterfeits’ is good,

it does not convey the contemporary force of the

term cult. But as we considered it more, given its

widespread cultural acceptance, we retained the

term [‘cult’] because, overall, no designation seems

quite as accurate or apropos....

ECNR at XXI (emphasis added). Thus, the authors make

clear that, unlike in Sands, labeling those in the books as

“cults” is not merely making “pronouncements of religious

belief and opinions.” Sands, 34 P.3d at 960.

The authors then punctuate the secular nature in which

they use the term “cult,” by ascribing to “cults” abhorrent

conduct, not related to religion per se, including encouraging

prostitution, raping women, molesting children, engaging in

drug smuggling, and committing murder. ECNR at XXV.

8

The Establishment Clause does not bar suits over such alle-

gations of abhorrent secular conduct.

The court below relied on quotes that the ECNR Intro-

duction “centers on doctrinal and apologetic issues” and “re-

ligious cults” but ignored that the term “cult” is not used ex-

clusively in the theological sense. Blanket immunity from

defamation liability should not lie merely because a publica-

tion contains some statements that are protected by the Estab-

lishment Clause because they constitute nothing more than

expressions of religious belief and opinion, when, as here, the

publication also contains other statements that clearly fall

outside the protection of the Establishment Clause.

While First Amendment protections extend to all expres-

sions of belief and critiques of belief, no such protection ob-

tains when the speech in question consists of reputationally

injunious falsehoods whose falsity can be objectively demon-

strated without recourse to any theological matter. Such a

ruling opens the door to matters of serious concern in the re-

ligious community for groups like the Local Church whose

members live not only in the United States but also in certain

religiously intolerant societies worldwide. In those societies,

having abhorrent conduci ascribed to the religious group not

only severely damages the group’s reputation but could po-

tentially be used by intolerant governments as a justification

to persecute the members of that group.

9

CONCLUSION

For these reasons, amici urge this Court to grant certio-

rari and reverse the decision of the court below.

Respectfully submitted,

Douglas W. Alexander

Counsel of Record

Alexander Dubose Jones and

Townsend, LLP

515 Congress Avenue, Suite 1720

Austin, Texas 78701

(512) 482-9300

Counsel for Amicus Curiae

May 2007