We asked Manhattan attorney Scott Pilutik for his analysis…
Two quick disclaimers: I only read the motion, not the exhibits, and I read the motion on my phone, upon which I’m typing this. So I haven’t had a chance to really scrutinize the motion. Also, I’m not familiar with the Texas anti-SLAPP law, so my comments are informed by anti-SLAPP laws generally, though every state differs (some states don’t even have an anti-SLAPP law — Texas only enacted theirs in June, 2011).
OK then. This motion has big problems and I suspect Scientology is well aware of them. I don’t think the purpose of this particular motion is to win, but rather to ask for the moon and settle for something short of that. An anti-SLAPP suit basically says: Not only should plaintiff’s lawsuit be dismissed, but plaintiff should pay defendant for harming defendant’s free speech rights. It’s obviously not a money issue for CSI, so they’d gladly “settle” to have the complaint dismissed and cede the attorney’s fees.
Without getting into the precise Texas law, which is unlikely to be supported by many cases being only two years old (and enacted after many of the underlying issues that support Monique’s claims — CSI may have a retroactivity problem), a party will only prevail on an anti-SLAPP claim if they can show that the underlying suit is without merit and is unlikely to prevail. But Monique’s complaint is hardly a sham, alleging a laundry list of abhorrent conduct by Scientology, which Scientology is more or less admitting to but characterizing differently. Whether she can prove each claim is an issue for a jury after hearing evidence. Typically anti-SLAPP awards are granted in instances where the underlying claim is an empty pretext to shut someone up or intimidate them.
And that’s why this action by Scientology is so bold. The nature of anti-SLAPP laws inevitably finds one highly leveraged party trying to crush an outgunned individual, usually with a defamation suit. Anti-SLAPP laws try to level the playing field by providing a remedy to those outgunned individuals. Here, perversely, Goliath is asking the court for David’s slingshot to use against David.
Besides the strength of Monique’s complaint, Scientology’s motion is also vulnerable inasmuch as it could be quite reasonably argued that the injunction sought by Monique doesn’t impinge on Scientology’s free speech rights. To be sure, much of what Lubow et. al were up to was constitutionally protected types of activity. But an absolute conception of free speech can conflict with privacy laws, and to account for those conflicts the law distinguishes between private and public figures, the latter against whom the law will tolerate far more intrusions.
AdvertisementThis is why Scientology is arguing that Monique is a “limited purpose public figure.” (And conversely why Ray Jeffrey will argue that she’s a private figure.) Because if the court finds that Monique is a private figure, the crucial nexus to the anti-SLAPP motion disappears. It’s worth noting that much if not all of the conduct Scientology alleges that makes Monique a limited purpose public figure (saying mean things on the Internet, accompanying Marty, etc.) is conduct provoked by Scientology, and conduct which forms the basis for her complaint.
Although I think Scientology’s motion is ultimately doomed, I also think they’re OK with that. Not only will wads of attorney’s fees be burned through, but they’ll get a chance to try the case in advance of the actual trial with only the risk of losing the motion, not the case.
Those final lines from Scott seem really prophetic — he hasn’t read the exhibits yet, but we have. And we can tell you, Scientology is going for broke in them.
For example, it’s going after several ex-Scientologists with two declarations that stir up a story from 2010 that has been waiting to explode. We wrote a couple of pieces about it then. But now, the church has put stunning new material on the record.
And it’s about a young man named Daniel Montalvo.
The church has submitted two declarations by Montalvo, who briefly defected from Scientology in September 2010 at the age of only 19. He had been working as a “Sea Org” worker — the folks so dedicated to Scientology they sign billion-year contracts and work 100-hour weeks for pennies an hour — at the church’s printing arm, Bridge Publications.
Now, Montalvo accuses Marty Rathbun and several other former Scientologists — Tom DeVocht, Marc Headley, Mike Rinder, Jason Beghe, and Tiziano Lugli — of using him as a pawn in a well-orchestrated operation to get him to smuggle out to them several hard disks full of secret Scientology information.
The next morning, I tried to access the hard drives on Tiziano Lugli’s computer. However, it was a Mac computer and the hard drives were Microsoft based. Thus, they could not be opened. Lugli then had the idea of going over to Marc Headley’s house and drove me over to the Headley’s home in Burbank, California, because Headley had Windows 7 computers. When we arrived we went to Headley’s home office and Headley plugged one of the hard drives into his computer. I typed in the encryption codes to unencrypt them, and each was accessed in turn. Headley copied some or all of the hard drives onto his own computer.
Montalvo’s declarations come with a copy of a photograph of him that was posted to the Internet. Montalvo now says he was manipulated into posing with a copy of Marc Headley’s book, Blown for Good, and the church makes sure to point out (with a red arrow) that a reflection of Monique Rathbun can be seen in the door behind Montalvo. (The photo was taken at Tiziano Lugli’s house.)
But that photo is also a pretty graphic reminder of the nature of this entire motion and its exhibits — it targets the actual plaintiff in this lawsuit, Monique Rathbun, only by reflection.
There are hundreds of pages here that attack Marty Rathbun as Scientology’s greatest enemy. Marty was a “squirrel” who dared to engage in Scientology in his own way and in the privacy of his own home. He needed to be taught a lesson because he was violating Scientology’s trademarks, and that lesson had to be carried to him with the use of an elaborate and expensive spectacle of people dressed strangely and carting around video cameras outside his house for months. Such effort was necessary because Marty Rathbun was encouraging and abetting defectors, asking them to steal church policy and bring it out to him.
Marty. Marty. Marty. Marty.
Scientology’s obsession with him is truly impressive.
But he didn’t sue the church. His wife did.
Will Scientology’s daring gamble, admitting so openly to the use of such bizarre methods to protect its religious purity, really pay off if it’s not even aimed at the real plaintiff in this case?
It’s a bold move. And maybe suicidal.
And now….
Scientology’s Anti-SLAPP motion part 1
(The motion, affidavit by Allan Cartwright, Exhibits 1-4: Rathbun online statements)
Scientology’s Anti-SLAPP motion part 2
(Exhibits 5-18: More online statement, examples of media, portions of Monique’s testimony)
Scientology’s Anti-SLAPP motion part 3
(Exhibits 19- : Daniel Montalvo I & II, Monique Facebook comments, David Lubow, John Allender, Richard Hirst, Monty Drake, Steven Gregory Sloat)
and
Mike Bennitt video of debate over the protective order (11 min.)
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Posted by Tony Ortega on October 19, 2013 at 07:00
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