Scientology's appeal in the Danny Masterson civil suit is cynical — and likely to fail

On Tuesday we told you that the Church of Scientology had turned in its appeal brief in the civil lawsuit against the Church and Danny Masterson which was filed in 2019 by his victims.

(This is a separate appeal than the one in Masterson’s criminal case which has him in prison for 30 years to life. In that case, the DA’s office should be filing its response to Danny’s appellate attorneys very soon.)

In the civil lawsuit, Masterson’s victims accuse Scientology and the That ‘70s Show actor of retaliating against them for coming forward with a years-long campaign of stalking and harassment.

Scientology tried to gut the lawsuit with some anti-SLAPP motions that were denied last year by Judge Upinder Kalra. Scientology appealed that ruling, and on Tuesday we told you that in its appeal brief the church is saying the judge erred in a couple of ways. For example, when the victims complained in their lawsuit that someone like Masterson’s assistant at the time, Jenni Weinman, had tried to intimidate them into not reporting Masterson to law enforcement, she was really just engaging in protected free speech in a public debate.

Also, that Judge Kalra had ruled the victims had sufficiently alleged a conspiracy between Weinman and other “agents” and the church, when, Scientology argued, the victims themselves were not alleging a conspiracy at all.

We know this stuff is complex, and so once again we’ve turned to an expert, an appellate attorney who is a longtime member of the Underground Bunker who goes by the handle TX Lawyer. He’s provided some really interesting analysis of Scientology’s appeal brief that we knew you’d want to see…

First, some signature-block drama: Winston & Strawn (William Forman, specifically) has been counsel to Scientology for approximately as long as I’ve paid attention to it. Seeing it in third place on the signature list for an appeal doesn’t indicate it’s fallen out of favor, but Dave is leading instead with the Horvitz & Levy firm. H&L is an appellate outfit, which, good for them, that’s a hard specialty for a firm to maintain these days. I think they might be new to the Scientology beat. But they were not on the briefs in the arbitration appeals, so Miscavige appears to be changing horses midstream.

I think your take on the brief is broadly correct. I would just add that there is a general principle of civil procedure — though it varies in formulation slightly from state to state — that the court is supposed to construe the pleadings liberally. I think that is what Judge Kalra did here by finding that the facts pleaded suggested a civil conspiracy, not just principal-agency liability. The precise labeling is not supposed to control over the substance of the allegations. Scientology wants the appeals court to treat the conspiracy stuff like it was an unraised trial objection instead of a pleading issue. That’s just wrong for anti-SLAPP purposes. File a demurrer or whatever if you want to complain about the labeling.

It’s often useful to go back to basics when legal issues start to get convoluted. The basic thing here is the California anti-SLAPP statute, California Code of Civil Procedure § 425.16. It provides:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

The plaintiffs here are not trying to stifle Scientology’s free speech on a public issue. The complaint here is that they’re being privately harassed and threatened for exercising their own freedom of speech and right to petition for redress of their own grievances. Miscavige remains free to have his minions say any non-defamatory thing they want publicly about Danny and his victims. But you shouldn’t get to play the anti-SLAPP victim for private threats and intimidation.

Scientology here is trying to reframe that problem by characterizing its non-public speech as being sufficiently related to the “public issue” of Danny Masterson’s rape habit that it ought to be protected and subject to anti-SLAPP protection. I can’t say what the limiting principle on that is under California law, but it should not be sustained on appeal. All kinds of tortious conduct get accompanied by speech. That should not render the underlying tortious conduct into First Amendment protection. A mob boss does not get to extort a business owner into paying protection money and then claim it was just his exercise of free speech. Mark David Chapman doesn’t get to murder John Lennon because The Catcher in the Rye is protected speech.

Anti-SLAPP law was and remains a good idea, but I think it’s gotten flipped on its head a bit. When Texas passed its statute over a decade ago, I remember reading it and thinking that, holy crap, this is way broader than most people are probably thinking. The idea behind these statutes is that the little guy was getting crushed by big moneyed interests who were able to force said little guy into ruinous litigation if he spoke up about getting arsenic dumped into the water supply or whatever. But what’s happening a lot of the time is that the big moneyed interests are latching onto the anti-SLAPP statutes to bog down lawsuits brought by the little guy with motions practice and appeals about tenuous claims of big money’s own free speech rights. I don’t know how to fix that problem, but let’s call it out as one.

I’ll offer this as an example of anti-SLAPP law working as intended: A few years ago, Beto O’Rourke ran for Governor in Texas. As part of that campaign, he persistently described Greg Abbott’s campaign donors in the energy industry, including Dallas pipeline billionaire Kelcy Warren, as having engaged in bribery and corruption with Greg Abbott. That’s clearly protected opinion and core political speech under the First Amendment. But Warren sued Beto for defamation out in middle-of-nowhere San Saba County, where Kelcy owns a vacation ranch and could be confident he would have a friendly judge. (He’d have gotten laughed out of court and sanctioned in Dallas County, where he actually lives.) Anti-SLAPP worked exactly as it was intended in that case. The friendly district judge ignored First Amendment law by denying Beto’s motion to dismiss the case, but Beto got an immediate appeal, and the Austin Court of Appeals tossed out Kelcy’s lol-suit. OK, back to the subject at hand…

This is nitpicky, but I’m kind of procedurally offended by the Scientology brief describing the rapes as “alleged sexual assaults,” as if that had not already been established beyond a reasonable doubt as to two of the plaintiffs in a criminal trial. I know Danny still has his appeal and eventual habeas petition, but most appellate judges dislike it when they’re told facts are only “alleged” when they’ve actually been established. When I do an appeal, I try my best to concede what has already been established on the evidence and the law. Appellate judges do not like being asked to relitigate the entire case — they want to get to the actual points of error. A jury of his peers found that Danny raped two of these women, and all he’s left with now is arguing the semantics of the statute of limitations and whether he deserves a new trial due to quibbling over the admissibility of some of the evidence.

Final thought: The appeal here is just cherry-picking statements recited in the complaint and trying to get them individually tossed out of the case. Scientology may succeed on striking some of them. But it is not going to result in having the case outright dismissed. The plaintiffs might get limited in the evidence they can introduce, or maybe it comes in anyway with some sort of limiting instruction. But this appeal does not appear to be a case-dispositive one.

— TX Lawyer

Thank you, Tex. And especially for reminding us how repugnant it is that Scientology tries to use anti-SLAPP law to its advantage, when anti-SLAPP statutes were designed with bullies like Scientology in mind.

You really make a great point: Scientology is claiming that its free speech rights are being infringed by this lawsuit, when nothing is preventing the church from continuing to speak out about Danny Masterson and his victims if it wanted to. And what the lawsuit is really about is private harassment and intimidation of these women, not a public debate.

We have a feeling that the 2nd Appellate District, which has sided with these women in the past, will see through this cynical obfuscation by Scientology.

And one more time, we want to remind readers that we’re talking today about the appeal in the civil lawsuit against Scientology and Masterson, not Danny Masterson’s criminal prison sentence, which is also on appeal in the 2nd Appellate District, but in a completely different case.

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Swedish newspaper takes on Scientology in a big way

We want to thank the Swedish publication Dagens ETC that let us know they were coming out with a major two-part series on Scientology, with the first part appearing earlier today.

Journalist Kent Vilhelmsson has done a really fine job speaking with former Scientologists about the usual horrors of indentured servitude in the Sea Org and families being ripped apart, with a particular focus on Sweden, as well as the Advanced Org in Copenhagen.

Also appearing in the story is Mirjam, the protestor who brought us news in January that Scientology had spent $26 million to double the size of its Copenhagen HQ.

Vilhelmsson does a thorough job examining Scientology’s controversies, and once again it strikes us how victims in Sweden or Denmark are saying the exact same things as other former Scientologists in the US, UK, Australia, South Africa and elsewhere. It truly is kind of amazing how consistently Scientology has abused people all around the world.

In today’s piece, Vilhelmsson says that in tomorrow’s part two he will be diving into one woman’s story in even more depth, as she describes publicly for the first time being sucked into the Sea Org in her teens and only escaping many years later.

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