Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

Is Scientology a Religion?

I answered this question over at Quora, which seemed like a good idea at the time, but I don’t have much hope for Quora’s long term existence, so I’m going to publish it here as well. The tl:dr answer to the qeustion is as follows: Yes, Scientology is a religion… but it doesn’t really matter because the better question–the question the IRS is mandated by law to ask–is whether Scientology is organized and maintained for a religious purpose. And the answer to that is plainly no. 

This question has persisted without agreement within Scientology criticdom for years, largely because it’s impossible to answer without defining religion either so amorphously as to strip the word of all meaning, or so exclusively as to omit many widely recognized religions. Still, the question matters if for no other reason than the fact that it keeps getting asked, usually in the context of the more interesting question about why Scientology is considered a tax exempt entity.

Briefly to that end, it’s important to realize that the two entities with seemingly the most interest in determining whether Scientology is a religion–the US courts and the IRS–are constrained by the establishment clause to define religion so expansively as to avoid implicitly endorsing religion X over religion Y.

In a country as religiously pluralistic as the US, the courts must hew to a broad and inclusive definition of religion.

Early court decisions attempting to define religion predictably chose monotheistic terms–”The term ‘religion’ has reference to one’s views of his relations to his Creator[.]Davis v. Beason, 133 U.S. 333 (1890). “[T]he essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.US v. MacIntosh, 283 U.S. 605, 633-34 (1931) (Hughes, C.J., dissenting).

Soon after, in 1944, God disappears from the definition:  “[F]reedom of religious belief … embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.“  Ballard v. US, 322 U.S. 78 (1944).

In US v. Seeger, 380 U.S. 163 (1965), the Supreme Court interpreted legislation exempting conscientious objectors from war (here, the Vietnam War) as including beliefs which even the plaintiff had not initially described as religious. The statute defined religion as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological or philosophical views or a merely personal moral code.” The court read this to include “all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.

The Supreme Court has thus kept pace with modern theological trends by stretching the definition of religion to essentially mean any structured belief system which sincerely based on “ultimate concerns.” US v. Seeger, referencing progressive theologian Paul Tillich, Dynamics of Faith (1957) (defining faith as “the state of being ultimately concerned”). See also Welsh v. U.S., 398 U.S. 333 (1970).

Which brings us to Scientology, which is also unconcerned with any Supreme Being but instead, similar to inward-looking Eastern religions, views the soul, or what Scientology founder L Ron Hubbard called the “thetan,” as an immortal being. Per Hubbard, an adherent’s spiritual growth is wholly tied to gaining an increased understanding of one’s thetan, which is accomplished through a series of exercises and courses, often in tandem with another Scientologist called an “auditor” and often with the aid of an electropsychometer (“e-meter”), a sort of lie detector employed by the auditor in these courses.

By the Supreme Court’s increasingly generous definition of religion, broadened to keep pace with a growing pluralistic populace and to comport with the first amendment, it’s difficult to argue that Scientology, as I describe it above, is not a religion.

That said, the relevant question the IRS asks in determining an entity’s tax exempt status isn’t whether the entity is a “religion” but rather whether it’s organized and operated for a “religious purpose.” This distinction is not merely semantic. Though it rarely happens, the IRS can both recognize an entity as a religion and yet still deny it tax exempt status. See Bob Jones University v. US, 416 U.S. 725 (1974) (Court revoked exempt status of religious university which denied admission to applicants engaged in an interracial marriage or dating).

Despite that its tenets easily qualify as “religious” per the US constitution, there are nevertheless countless arguments why Scientology and its myriad corporate fronts should be denied tax exempt status because it is not organized and maintained for a “religious purpose.” 26 U.S.C. § 501(c)(3).

Religious groups risk losing their tax exempt status in a number of ways, such as if its net earnings inure to an individual; if it provides a substantial benefit to a private interest; if it devotes a substantial part of its activities attempting to influence legislation; if it participates or intervenes in any political campaign on behalf or in opposition to a candidate for public office; or if its purposes and activities are illegal or “violate fundamental public policy.” IRS Guidelines, Activities that are Illegal or Contrary to Public Policy.

An easier way to understand this is that the government cannot regulate belief, which is why it must define religion so broadly, but it can regulate activity, i.e., determine the existence of a “religious purpose.”

The most common reason a religion is denied or loses its tax exempt status is where its funding inures to an individual or individuals as opposed to the organization. LAW. This was the basis, in fact, upon which Scientology was first denied exempt status, when it emerged in the course of a trial that L Ron Hubbard was personally enriched by the organization. Founding Church of Scientology v. US, 188 Ct. Cl. 490 (Ct. Cl. 1969) (Court found impermissible a personal compensation scheme whereby the Church of Scientology had personally compensated L Ron Hubbard and his family at least 10% of its gross income).

By 1986, when L Ron Hubbard died, his religion was still not recognized by the IRS as exempt. Seven years later (1993) Hubbard’s successor, David Miscavige, negotiated a deal with the IRS granting it exempt status in exchange for Scientology dropping hundreds of lawsuits it had filed against the organization. Its terms remain officially secret to this day (the most recent unsuccessful attempt to crack it came in Sklars ) but were nevertheless leaked to the Wall Street Journal in 1997.

The IRS originally held the view that Scientology was not organized for a “religious purpose” but then reversed itself without explanation. What changed? By most accounts, the organization has only gotten more sinister under Miscavige, who is widely reported to violently beat subordinates, and live in unmatched luxury while staff members can make as little as $50/week.

But let’s break down why Scientology in its present incarnation isn’t “organized for a religious purpose,” and why, accordingly, it should have it exempt status rescinded: (1) Scientology has an explicitly commercial, non-charitable nature; (2) its revenues inure to a single individual; (3) it forces many of its members to disconnect from their families; (4) it grossly mistreats many of its members; and (5) it harasses and attacks ex-members and critics.

Taking these in turn then…

(1)

Regardless of Scientology’s thetan-concerned religious content, it seems significant that Scientology charges exorbitant amounts to become progressively enlightened. The functional practice more closely resembles psychotherapy, where one pays as one goes, than the community-oriented tithing and donation structure found with most other religions. Scientology attempts to dance around this by labeling all quid pro quo course payments as “donations.” From a business perspective, Scientology is profoundly profitable–staff members are paid a fraction of the federal minimum wage, while parishioners pay hundreds of thousands of dollars for the privilege of being audited.
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Scientology routinely resorts to high-pressure sales tactics to sell courses and solicit donations to various projects, often resulting in the financial ruin of its members. It even exhorts its members to pressure other members if they’re deemed to not be going “up the bridge” quickly enough. Though many religious groups can be financially demanding of their parishioners, among tax exempt religions I have yet to see any group comparable to Scientology. It routinely bankrupts members and declares them suppressive (excommunicates them) if and when they protest.

One high-ranking ex-Scientology official, Debbie Cook, recently estimated that Scientology has $1 billion dollars in reserve. Of that, virtually none goes to any form of social betterment or benefits local communities in any way. Scientology maintains a handful of social betterment groups (Narconon, Criminon, Applied Scholastics, and The Way to Happiness), each which are either run for-profit ventures or exist solely to “safepoint” (create generally good public relations) for L Ron Hubbard and/or Scientology. Narconon (a drug rehabilitation organization utilizing L Ron Hubbard’s scientifically disproven theories regarding toxins) is not only expensive, but is implicated in a trail of ‘patient’ deaths. Narconon Georgia is under state investigation for a massive insurance fraud scheme.

In short, parishioners pay hundreds of thousands of dollars to become Scientologists, money which benefits those parishioners directly; Scientology benefits by not having to pay taxes on those profits; and the general community benefits in no way whatsoever.

(2)

In Foundation Church, supra, the court found that Scientology revenues directly benefited L Ron Hubbard and that the IRS was therefore justified in denying Scientology tax exempt status for failing to organize and maintain a religious purpose. Hubbard’s successor, David Miscavige, has been, if anything, worse in this regard, his personal possessions are a laundry list of obscene wealth: $5,000 tailored suits, $500 Egyptian cotton shirts, the finest Italian leather shoes, personal use of a private jet, a $50,000 Acura RL, a $25,000 Mazda Miata, an $80,000 Range Rover, an $150,000 bulletproof GMC Van, a $25,000 custom-made motorcycle, a $110,000 BMW M6, a $45,000 Acura to use then he’s in Clearwater, Florida, a personal chef, a personal stylist, and so on. Even on Miscavige’s self-granted six-figure salary, the aforementioned perks could not be accounted for without assuming that he’s personally benefiting from Scientology revenues.

The inurement question gets even more lurid when considering how Miscavige’s best friend, Tom Cruise, also has personally benefited from labor performed by Scientology staff members. For example, Cruise’s elaborate wedding to Nicole Kidman was staffed by Scientology members at no cost to Cruise. Miscavige’s wedding gift to the couple was to arrange for a team of twenty Sea Org disciples to dig, hoe, and plant wheat grass and wildflower seed near the Cruises’ bungalow (on Scientology grounds) after Miscavige had learned of the couple’s fantasy of running through a meadow of wildflowers together. Miscavige threw a birthday party for Cruise aboard its cruise ship The Freewinds, estimated to cost $300,000. And Miscavige bestowed countless gifts worth hundreds of thousands of dollars on Cruise, often necessitating cheap, uncompensated Sea Org/staff labor. Cruise, through his lawyers, has issued a blanket denial but such denials are outweighed by numerous corroborated accounts. See generally Andrew Morton, Tom Cruise: An Unauthorized Biography (St. Martin’s Press, 2008).

Inurement is probably the most common basis upon which religious entities lose their tax exempt status. If the IRS cared to look, they’d have little trouble spotting Miscavige and Cruise personally benefiting from Scientology revenues in ways which have no discernible religious connection whatsoever.

(3)

The term “cult,” like “religion,” is, on the one hand, a useful demarcation line for how most people approach the question of whether Scientology is a religion. Religions are good and cults are bad, but why that’s the case is a somewhat subjective matter, similar to how the question of what is and isn’t a religion is difficult because of how everyone perceives religion personally, first, rather than dryly and objectively. My religion is a religion because I’m “good” and cults are “bad,” semantically speaking.

Nevertheless, one commonality of cults and continued evidence of their malignancy is that they tend to break up families, which most agree is an effect detrimental to communities in general. Scientology has alternately denied and defended (and indeed even claimed it as a human right) its well-documented practice of “disconnection,” whereby a member is forced by the organization to disengage from all communication with anyone critical of Scientology (inevitably the most skeptical family member). Scientology even designates a term for these pests: Suppressive Persons (or “SPs”), and a member risks his/her own standing within Scientology if they are “PTS” (Potential Trouble Source) to an SP.

Family represents an important value in America, but so does the principle of autonomy, and there is friction between the two. There is no recognized legal right or obligation for of-age family members to communicate with each other. Nor do we want to set precedents whereby churches’ institutional and its individuals’ autonomy is threatened by government policies. Scientology would argue that to rescind its tax exempt status because its practices break up families would be to religious. There’s some merit to this argument. The more powerful counterargument is simply that taxpayers should not be forced to effectively subsidize the destruction of families.

(4) & (5)

Scientology routinely mistreats its members, and especially its staff members. Ex-Sea Org members have filed lawsuits for labor law violations, forced imprisonment, human trafficking, and forced abortions. These damning accounts are largely corroborated, yet Scientology manages to escape prosecution and liability because the ex-members in question were either deemed to have consented or were deemed “ministers” and thus fell under the “ministerial exception,” which allows religious groups to be exempt from ordinary labor laws. Even if we concede that Sea Org members, after expressing their informed consent, thus waiving most claims they might later bring, it remains true that minors cannot waive such rights. Yet Scientology continues to employ children as Sea Org members (L Ron Hubbard viewed, and thus Scientology views children as undeveloped adults) and continues to abuse them without repercussion.

Scientology also infamously mistreats ex-members who dare criticize it, a group that includes not only former Scientologists but journalists and non-ex-member critics. The Internet is replete with endless stories of Scientology’s aggressive handling of individuals it deems threats, so I won’t bother detailing them here. But to the extent Scientology’s harassment engine is kept afloat and churning by a boundless tax-exempt repository (specifically, the International Association of Scientologists, or “IAS”), yet another basis exists to rescind Scientology’s tax-exempt status for failing to maintain a religious purpose.

 

In sum, in the United States the question of Scientology’s religiosity is a useless academic exercise because the first amendment has constrained courts (and thus the IRS) to define religion so broadly inclusive as to be meaningless. By the broadest definition, Scientology’s core beliefs easily qualify as religious. However, by the IRS’s more stringent requirement that tax-exempt entities be organized and maintained for a  religious purpose, Scientology fails because its revenues inure to a single individual, leader David Miscavige, its operation is indistinguishable from a for-profit business enterprise, and its practices–disconnection, the abuse of of members, and the ruthless handling of critics–violate public policy.

Laura DeCrescenzo's Motion to Compel Scientology & The Priest-Penitent Privilege

Continuing where I left off at Tony Ortega’s post on the latest developments in the Laura DeCrescenzo lawsuit against Scientology, which finds Scientology suddenly between a rock and a hard place as Laura’s attorneys successfully moved to compel Scientology to hand over Laura’s PC folders…

The motion papers contain a fairly interesting dispute concerning the scope of the priest-penitent privilege, both generally and in California. One key question was (and may yet be if Scientology is permitted to appeal) is whether the privilege was lost when Scientology permitted Laura’s PC folders to be handled by third parties. In Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 Cal.App.4th 417 (2005), the California Appeals Court found that any communications transmitted to a third party, even if that third party also is clergy, is a violation of California’s priest-penitent statute. Scientology attempted to distinguish itself from this case by arguing that Scientology is different because, well, it’s different, a subject about which Warren McShane, as part of Scientology’s opposition papers, blathers on and on

In some ways McShane is right, because the religious aspects of Scientology only vaguely resemble Catholic confession, the most obvious model for the type of communications the priest-penitent privilege has in mind to protect. It seems unlikely that any Catholic in history has confessed to the sheer number of confessions contained in an average Scientologist’s PC folder. Scientology confessions given in auditing also differ in that they’re written as opposed to spoken—and therefore more potentially detrimental to the penitent should they happen to be divulged. A priest’s memory isn’t nearly so reliable as the written word.

The body of priest-penitent case law doesn’t make much sense when you try to apply it to Scientology, who of course argue for a preposterously expansive interpretation, all the more convenient given Hubbard’s fastidious micromanaging and contention that his every word is scripture. If the law and its own reality don’t quite line up, Scientology contends that the law must treat it preferentially. And if everything within Scientology is religious and deserving of protection (except when it’s conveniently not. See, e.g., Narconon, Study Tech), Scientology is effectively impenetrable by the law.

It’s an argument that has served them well before, as the Headleys can attest. Their claim was ultimately denied by the Ninth Circuit as it found that Sea Org workers fell under the ministerial exception, a principle which, like priest-penitent, was also built around conventional religions with limited application, but which Scientology successfully managed to distend and enlarge into a bulletproof shield. A disturbingly perverse outcome to be sure.

Here, Scientology’s argument is even more perverse because of the policy upon which the priest-penitent privilege rests, namely the protection, privacy, and religious liberty of the parishioner who chooses to divulge secrets to a religious figure. The priest-penitent privilege exists to encourage discussions of the most private sort between religious followers and designated church figures. Without the privilege, such communications would not occur.

But if the underlying policy of the priest-penitent privilege is to allow parishioners to confess their deepest vulnerabilities without fear of greater disclosure, why is Scientology able to claim it? Different states view the question differently, as to who may claim the privilege, the priest or penitent. While the penitent may always assert the privilege, only in some states may the priest also lay claim. California is one of those states.

There may well be sensible reasons to allow the privilege to be asserted by the priest/church, but it is a dark perversion of the law to allow the priest to wield it as a weapon against the penitent, as is the case here. It is further troubling  to allow Scientology to hide behind the privilege where the subject matter at issue is Laura DeCrescenzo’s PC folders, because the spiritual content of those folders pertains exclusively to Laura, and only incidentally, if at all, to Scientology. Upon Laura’s departure from and repudiation of Scientology, her PC folders should properly be viewed as having no further religious value to Scientology. It should be Laura’s privilege to waive if she likes, not Scientology’s to protect themselves against claims brought by Laura. But should it really surprise anyone that Scientology would take the legal position that a Scientologist’s PC folders are not really theirs, but Scientology’s?

The NHL Lockout and Heroin Economics

Having survived NHL lockouts in the past (my third under Bettman alone! Plus one strike!) I can rationalize my chances of getting through this one like a seasoned junkie assuring himself that while there’s no heroin at the moment, it’ll be available again come Thanksgiving. Or Christmas. Or not for another year!, which seems to be the vibe at present. But rationalizing only gets you so far when the crucial question of when is so unknown. I’m getting jangly now, despite my head scolding me to pace my outrage.

It’s a cruel twist that the alternative to watching NHL hockey during a lockout is reading about labor negotiations, as if drinking arsenic is the only choice when there’s no ice cream left. But drink I have, and it tastes about as bad as you’d think.

From the outset–while the 2011-12 season was winding down even–the smart people were predicting a lockout to begin this season. What they didn’t predict was that the NHL owners’ opening proposal to rewrite the CBA would be a million miles from the status quo. In any negotiation to rewrite an existing agreement, if the first offer is too far from the predictable center “sweet spot,” the opposing side has no choice but to counter with terms generally equidistant from the center, unless the opposing side is desperate and without leverage.

If a friend offers to sell you her 2004 Honda Civic for $100,000 your counteroffer should be $10. Or, you know, just walk away from the table and wait for a serious offer. Applying this analogy to hockey, the owners need to get rid of the car and the players need to buy it–but for us fans, that Civic is our only ride. And so we wait on the side of the road for the the parties to agree on a price.

Heroin? Ice cream? Honda Civics? What does any of this have to do with hockey? Exactly. This is where we are. There is endless time for digression.

In case it isn’t entirely obvious, my sympathies lie entirely with the players, and not because of the owners’ negotiating tactics, necessarily, but rather the owners’ bad faith. Since the last lockout ending in 2005, revenues are up, salaries are up, attendance is up. The NHL closed a mega-TV deal with NBC, which coincided with NBC’s buying out the Versus Network (nee Outdoor Life Network) and renaming it NBC Sports. But teams are still “losing money,” we’re’ told, and the cure, per Gary Bettman, requires the players to accept a lower percentage of the contracts they’ve already negotiated.

Let me say here that I believe NHL teams only “lose money” in the same sense that every film in the history of motion pictures has “lost money, per the studios.” If your business has hundreds of employees, subcontractors, vendors, etc., it’s easy lifting for your accountant to ensure that you at least appear to be “losing money.” And because the owners’ books aren’t exactly wide open (e.g., arena concessions revenue isn’t included in the CBA definition of “hockey related revenue”), claims of poverty by the owners ring hollow.

What’s more interesting to me is that we’ve encountered the “It’s our mistake, but you’ve gotta subsidize it” line of reasoning before, and not even that long ago. When Wall Street needed a bailout in 2008 after grossly failing to manage risk (its only job), said bailout was for a hundred cents on the dollar and it was on the taxpayers’ backs.

Like Wall Street, the NHL owners evidently believe that the system–here, the NHL–owes them. That their bad business decisions can and should be subsidized by everyone else. That every six years the owners get to renegotiate contracts they’ve already signed. Profits are privatized, losses socialized. In a narrow sense this view makes some sense–teams can only economically thrive in the context of a league.

If only it were the league that the owners were looking to impose their losses upon instead of the players. If you’re able to borrow enough money to join the NHL owners club, you’re evidently infallible and beyond consequence.

The owners, if polled, would each likely describe themselves as believers in the free market, but would also likely fail to see the contradiction in asking that the players bear the cost of their poor decisionmaking. Indeed, it’s more likely that the owners view themselves in a heroic, Ayn-Randian light, or as Red Wings VP Jim Delevanno put it (in defense of the owners, in case that’s not clear):

The owners can basically be viewed as the Ranch, and the players, and me included, are the cattle. The owners own the Ranch and allow the players to eat there. That’s the way its always been and that the way it will be forever.

The NHL wasted no time fining Delevanno a quarter million for having the unseemliness to say what every owner steadfastly believes. It’s also eerily reminiscent of Mitt Romney’s crude explanation of the United States’ 53/47 management/parasite population split. Evidently no one told either Delevanno or Romney that the first rule of Fight Club is to never talk about Fight Club.

I’m not suggesting that the league should be run on untethered free market principles–it can’t. A sports league is by nature a joint-venture collective, and as such quite a bit of “socialism” is necessary for the league to work as a league. And like or hate Gary Bettman, he’s done an admirable job of improving the league’s overall financial situation, especially given the low bar set by his inept predecessors, and even despite the mixed results of Bettman’s southern-state expansion strategy.

It’s also difficult to sympathize with the NHL owners simultaneously crying poverty while flushing away what revenues are due to disappear with another lost season, but I suppose the accountants can be called on to prove that North is actually South, as well. Ultimately, the only price the NHL owners will pay for depriving fans of hockey is an economic calculus only they’re aware of–as Gary Bettman previously (and loathsomely) pandered: the fans will come back no matter what. It’s sad that he’s right. After all, we just want our heroin, and off-brand KHL, AHL, ECHL heroin just won’t do.

Free Speech in Burning Theaters

No small amount of ink has been spilled over an alleged film that allegedly caused riots throughout pockets of the middle east, allegedly leading to the death of the US Ambassador to Libya, Chris Stevens, and some of his staff members. I hedge because from the start of this story so many facts have been up for grabs, even as to whether the film exists (or whether the full sum of the producers’ efforts was the 14-minute trailer that remains available on YouTube).

Starting with Mitt Romney’s ham-fisted and ill-timed public consternation over the Egyptian embassy’s paying short shrift to “American values,” the free speech question has been discussed pretty much everywhere, as it should be, given these facts. I consider myself a free speech absolutist and ultimately believe that the film is deserving of first amendment protection. The film.

But I also think that in promoting the film, the filmmaker–Nakoula Basseley Nakoula, and not Sam Bacile as he’d originally claimed–made statements that fall outside the first amendment and may be criminally actionable if it can be found that those statements furthered an intent to provoke lawless action, and that such lawless action was likely and imminent as a result of the speech (See Brandenburg v Ohio, 395 US 444 (1969)).

Intent, Likelihood, and Imminence.

Brandenburg’s requirement that violent provocation meet an “imminence” prong would seem to guarantee any film first amendment protection. Films, after all, take time to produce–imminent lawless action thus seems intrinsically impossible. Unless, perhaps, the film was designed in such a way that it would likely provoke violence at its mere showing–the film as time-bomb, with a payload of subliminal messages to cause ordinary viewers to spontaneously engage in knife fights. The direct cinematic equivalent of yelling FIRE! in a crowded theater, an analogy aided by its actually being a film. Obviously that’s not what happened here, and if this scenario was even possible it would have already occurred a few years back at the premiere of The Love Guru.

But what did happen here? And did what happen exceed first amendment protection?

Even the White House, which would stand to gain diplomatically if it had publicly asked YouTube to pull the trailer, declined to do so, instead asking YouTube to review whether the film comported with its Terms of Service (it did, and the video remains available). While this would appear to settle the first amendment question with respect to the film/trailer, it doesn’t fully put to rest the question of Nakoula’s free speech protection, especially after you drill down into the facts.

Just as the video had been gaining traction in the middle east and helped spur minor protests, helped along by the filmmakers’ (or presumably Nakoula’s) translating the trailer into Arabic,  Nakoula was interviewed by the Associated Press and the Wall Street Journal as “Sam Bacile,” [and as PBS points out, shame on AP & WSJ for buying it, perpetuating it, and failing to fully own up to their role in it] which was the account name under which the video was uploaded to YouTube.

Nakoula, as “Bacile,” made two false statements: (1) that he, “Bacile,” was Jewish (Nakoula is a Coptic Christian), and (2) that the film had been principally financed by “100 Jewish donors.” It can be argued that these lies were intended to breathe air into the fire that had only just started. Whether these lies actually stoked the fire is a separate question, but not relevant to the question of Nakoula’s intent. In any case, Brandenburg’s foreseeability prong is satisfied because the presence of some connection between the speech and the resulting violence seems obvious here.

Steve Klein, a consultant to the film and himself a Coptic Christian, bolstered the notion that Nakoula’s intent was to provoke violence. After the protests had already resulted in at least one death, Klein stated that “We went into this knowing this was probably going to happen.

Together, Klein’s concession and Nakoula’s lies, all which occurred just as protests against the film were percolating, diminish Brandenburg’s applicability because those statements occurred separate from the film, simultaneous with the protests morphing into violence.

The film/trailer itself is also indicative of Nakoula’s intent. As the film’s actors and crew have noted, the dialogue which would be most likely to offend Muslims is not uttered by the actors on screen but was rather dubbed in afterward.

The original actors said one word, and then the producer and editing team (whom I don’t know) dubbed,” [an unidentified crew member] wrote. “It’s unmistakable that most dubbed portions are a different voice than the original actor.

Now we don’t want judges answering the question What is Art? any more than we want them defining religion. So the fact that the film has scant artistic integrity, undermined further by the sloppy overdubbing, is of no matter with respect to the film’s speech protection. But it does speak to Nakoula’s intent, as he evidently saw the film production itself as a ruse, and a vehicle to deliver a message he seems to have intentionally omitted in discussions with the film’s crew and actors.

Those actors, and to a lesser extent the crew, surely would not have consented to work on a film if they had known beforehand that its producer intended to use the film–and necessarily, their names and likenesses–to provoke violence in the middle east. This opens the door to possible tort actions against Nakoula by the actors and crew. If anything should happen to them, free speech won’t get Nakoula too far as a defense.

Nakoula would likely respond that any dishonesty on his part is explained by his need for anonymity–that he was protecting his own safety. Anonymous speech is still protected speech after all. But it doesn’t explain how Nakoula’s need for anonymity necessitated putting his actors and crew in harm’s way, nor does it explain why he needed to blame The Jews for the film’s creation, given how those lies would most likely be inferred in middle east.

I’ll finish by disclaiming the idea that my criticism of Nakoula is equivalent to a defense or tacit endorsement of those rioting protesters, or somehow a denial that radical Islamic fundamentalism is a problem. Indeed it is, and the answer to this or any future problem won’t and can’t involve the curtailment of our own free speech rights. And unlike those who want to reduce this controversy to its simplest, falsely-equivalent narrative, I don’t think such as a reasonable fear at present.

THE MASTER & SCIENTOLOGY 

[Pretty much all Spoilers, so only read unless you’re determined to not see it]

It's difficult to write about Paul Thomas Anderson's The Master because the more you consider it the less sure you are of what Anderson was trying to say. To start with the obvious, it's a big, glorious, ambitious film, sure of its own importance and beauty in a way most films can only pretend to be nowadays. In thematic terms, it’s about the clash between disillusionment and the bold spiritual opportunism that sought to fill that void in post-WWII America. 

More particularly though, it's about Joaquin Phoenix's aimless and war-traumatized Freddie Quell, and his relationship with Philip Seymour Hoffman's L Ron Hubbard, err, Lancaster Dodd, a gregarious, deeply-charismatic, cult leader. Quell arrives on Dodd’s boat (actually a wealthy benefactor's boat, it later turns out) a violent, stumbling alcoholic stowaway, animalistic qualities that render him unfit for society; but Dodd sees in Quell a “guinea pig,” someone to demonstrate the validity of Dodd’s “processes,” which bear a striking resemblance to Scientology’s “training routines.” 

Anderson admits to using the early days Scientology as a backdrop for his story but Scientology is too integral to the story to cheapen its presence as merely a “backdrop.” Anderson not only lifted whole biographical chunks, details and all, but his “Cause” is similar to Scientology both in form and effect. Dodd grills Quell about his past with questions lifted nearly verbatim to Scientology’s OCA ‘Personality Test’: 
 
- Do past failures still worry you?
- Do you make thoughtless remarks?
- Have you ever had sexual relations with a member of your own family? 

Quell stammers out answers as tears run down his face–he’s not permitted to blink during the interrogation. Afterward when Dodd asks how he feels Quell is visibly exhilarated at having finally verbalized his horrors (including having killed in war and having had an incestuous relationship with his aunt). Many ex-Scientologists have testified to a similar therapeutic gain from this unburdening of conscience. Then Dodd hints at Scientology’s future beyond the timeframe of his film when he asks Quell if he is “a member of the Ninth Battle Battalion or any other invader force…”, and the question unsurprisingly sails over Quell’s head. The film makes a few other allusions to Hubbard’s forays into space opera but this mostly occurred outside of Anderson’s time frame. 

The damaged Quell makes personal progress though the methods clearly frustrate him. In one exercise which extends through multiple scenes he’s instructed to touch the wall, describe it, then walk to the opposite side of the room to touch the window, and describe that, and repeat ad nauseum. This is Anderson’s slightly modified take on Scientology’s “Training Routine 6” in which the initiate is commanded as follows:

“LOOK AT THAT WALL.” “THANK YOU.”
“WALK OVER TO THAT WALL.” “THANK YOU.”
“TOUCH THAT WALL.” “THANK YOU.”
“TURN AROUND.” “THANK YOU.”

Quell struggles with the exercise, mostly failing to make sense of what’s being asked of him but nevertheless executing it dutifully. Only when he’s about to collapse does Dodd step in to “End Process,” and hug the exhausted Quell. As with Scientology’s “training routines” (most often referred to as the TRs), Dodd’s repetitive “processes” are like mental boot camp, where what’s known to be real is stripped away and replaced with self-referential jargon and concepts, rendering that person more functional within the group but more isolated to the outside world. 

As Quell begins to exhibit moderate improvement, it’s worth wondering whether Anderson is implicitly endorsing the idea that Scientology “works.” Change is certainly effected within Quell, though it’s difficult to pin down Anderson on anything substantial or definite. The story, told through sometimes dreamy vignettes which often refuse to dovetail, ultimately finds Quell outside the group, though the impetus for Quell’s moving on (or being moved out) is left unclear. One of the final scenes finds Quell in bed with a woman, asking her to keep repeating her full name, as Dodd had once asked of Quell. 

If Anderson is sending mixed signals about his feelings on Scientology through the Quell and Dodd relationship, which dominates the film, it’s perhaps more helpful to examine Amy Adams’ “Peggy Dodd,” who is clearly meant to represent Mary Sue Hubbard (Hubbard’s third and final wife), and her relationship to both Dodd and Quell. Adams plays Peggy as the outwardly demure but otherwise ruthless power behind Dodd’s creative throne (and like Hoffman and Phoenix, Adams almost certainly earned herself an Oscar nomination). 

Friction reveals itself early on when Peggy tells Quell that Dodd is fascinated with him, as if she can’t quite see it herself. Later she suggests to Dodd that Quell may simply be beyond help, but Dodd’s ego and ambition requires persistence. Peggy finally gets her way in the end when Quell visits Dodd in England, where The Cause had since relocated (just as Hubbard relocated Scientology to the St. Hill Manor in Mid Sussex England in 1959), and tells Quell in no uncertain terms that he’s unwelcome, which Dodd reluctantly understands. 

The interactions between Peggy, Dodd, and Quell suggest a view of Scientology by which Dodd represents a hopeful, almost altruistic yearning to actually accomplish what Scientology purportedly sets out to accomplish–rid the planet of “insanity” (as defined by Scientology) one person at a time. Quell is the insanity that Scientology wants to expunge. And Peggy is the pragmatist–the power-consolidating force (it’s Peggy and not Dodd who utters the Anderson equivalent of the famous Hubbard line, “always attack, never defend”) and it’s Peggy who eventually won and shaped what became of Scientology. Anderson’s film is too amorphous for this simplistic analysis to hold, but to the extent you can read Anderson’s version of Hubbard, through a phenomenal performance by Hoffman, as the idealistic good guy to Mary Sue’s bad cop, such a rendering is too flattering by a truckload, which Anderson would probably realize if he continues where he left off in Russell Miller’s Bare Faced Messiah, the out-of-print book which obviously served as his biographical source material. 

I’ll acknowledge that much of my commentary is inherently unfair, as Anderson didn’t set out to make a true-to-life biography of L Ron Hubbard, which, even if Anderson hadn’t gone to great lengths to distance his movie from Scientology, is made clear by the amount of fictional inclusions (e.g., the lead character, Freddie Quell, has no historical analogue). But perhaps it was naive of Anderson, then, to provide so much of Scientology to chew on if it’s something he’d rather not discuss. I mean, if you make a movie about the Indy 500, the topic of cars is going to naturally arise, even if the point of your film was to convey larger truths about ovals. But this is a minor quibble, and in no way inhibited my enjoyment of The Master.

The Legal Case Against Clergy Involvement in Political Conventions

[adapted from my comment on a FB post]

Benedictions don't occur in vacuums. A convention is a politically charged event. And a benediction is explicitly understood to be a religious event. I understand why many religious people like the idea that their government endorses their belief system but the fact remains that the Constitution forbids such endorsements. And a benediction closing out a political convention is one such endorsement.

The counterargument is that the particular benedictions given at conventions, like city council and congressional invocations, are non-sectarian in nature, meaning that no explicit endorsement is being provided to any one group.

My response to that counterargument is that (a) any mention of God is necessarily sectarian because it naturally excludes non-believers and believers of non-monotheistic faiths; and (b) any such attempts at non-sectarian religious gestures in a political setting necessarily degrades "religion" by in fact adopting a watered-down, state-sponsored religious artifact (sometimes referred to as "civic religion").

The counterargument to my point (a) above is that America has a monotheistic religious heritage that deserves acknowledgement. Which would be fine if it weren't so easily shown that the true purpose behind the plethora of laws relying on this argument (ascertainable if you dig around the facts of litigated cases, as I've spent no small amount of time doing) is actually to advance particular sectarian agendas (think Ten Commandments plaques in courthouses). And, of course, it remains somewhat discriminatory–if you're not a member of the monotheistic club moments such as these serve as awkward reminders of your exclusion. But no one really cares because these outsiders comprise a meaningless constituency, demographically speaking.

The establishment clause was made possible because of an existing detente between the various competing religions in the mid to late 1700s. What we're now seeing is a melting of that detente, where the various religious groups have found common ground, i.e., civic religion, perhaps best thought of as the overlapping center of a Venn diagram containing all monotheistic religions. But civic religion is also memberless; a creation of compromise which cheapens actual belief by bending opportunistic religious leaders toward it.

It’s undeniable that The Master is about Scientology, specifically Hubbard’s…

It's undeniable that The Master is about Scientology, specifically Hubbard's early years, but it's perfectly understandable why Paul Thomas Anderson doesn't want to talk about it.

I think if you look at There Will Be Blood you get a sense that PTA is a director who takes himself very seriously, and you can view TWBB as a sort of historical fiction where its power derives less from the source material than PTA's impressionistic take on the story. I think he'd feel that he would be undermining what he sees as the essence of the film if he were to admit what it is "about." It wouldn't only cheapen the film to call it a biopic, but if you label it as such you also shorten your license to fictionalize, because then you're forced into a discussion over what was fact and fiction, questions he's smart enough not to want to answer.

Hubbard's early 1950s, and the company he kept, is really interesting, untapped source material for filmmakers. But it's also contentious, at least between Scientology's pure fantasy version and Russell Miller's far more plausible version told in "Bare Faced Messiah" (which based on what I've seen and heard so far, was likely PTA's key source). In other words, PTA is not only smart enough to know that any discussion of Scientology will detract from his film, but also because that discussion places him in the center of a never-ending argument.

I suspect he'll be more willing to talk about Scientology and Hubbard a few years from now. But in the promotional phase of a movie, which I imagine is the least fun thing a director ever has to do, he wants to do whatever he can to keep the focus on the movie, and talking about Scientology achieves the opposite.

Embedded Link

Stop Asking if Paul Thomas Anderson’s New Movie Is About Scientology, Even Though It Probably Is
If you’re a fan of Paul Thomas Anderson films — Boogie Nights, There Will Be Blood — chances are you’re excited about The Master, which has already been hyped to death by festival audiences. But what …

Taibbi on Bain, the RNC Convention, and Apple v Samsung

Matt Taibbi has a long piece in Rolling Stone, and basically asks why anyone would think Romney’s business experience makes him fit to run a country probably doesn’t what Bain Capital actually did, i.e., caused flailing companies to accrue massive debt, and paid itself many multiples over its investment for the privilege of firing everyone.

Taibbi points out that the problem is less the business than the tax code incentivizing the business into a can’t-miss model by granting huge interest deduction breaks. Private Equity collects huge whether the companies it takes over live or die, so why would a firm like Bain even care if the business lived or died so long as Bain collected? A: They didn’t and they don’t. This is what the wide-open free market about which the Right has been evangelizing for years looks like–and look close because not only is nothing trickling down, debt is piling up. Consequently, what social good does Bain et al serve, and why should this sort of experience ever be considered relevant business experience vis a vis running a country?

Michelle Goldberg voices something I’ve thought of years–Republicans have forever ridiculed lefty actors for nosing into politics but unabashedly trot out any celebrity willing to shill for them. And while Victoria Jackson and Jon Voigt are bona fide crazy and D & C List (respectively), Clint Eastwood is an American icon. Who pissed all over his legacy last night by losing an argument with a chair. So much for the RNC’s plan to humanize Mitt Romney, who wound up having to follow Clint’s surrealistic turn, which is the only thing anyone’s talking about today.

Sally Kohn was merely one of many people who called out Paul Ryan’s speechfor all the lies it contained, but hers was newsworthy because hers appeared on the Fox News site. Kohn is a semi-regular Fox News contributor and unlike strawman/punching bag Alan Colmes, can actually bring it.

I’m not a fan of Ron Paul but there wasn’t enough attention paid to the fact that on day one of the convention the RNC changed its rules and ignored the outcome of a vote that would’ve brought a result it didn’t want, specifically to ice Paul and his supporters out of the convention. And people call Ron Paul paranoid. Tch.

My cousin Jon pointed me to this excellent summarizing of the problems with our broken patent law system, which problems led to Apple’s ridiculous $1b jury victory over Samsung. There’s also this article suggesting that the jury goofed heavily, perhaps heavily enough to jeopardize that $1b award. There are good reasons juries generally don’t render verdicts in patent cases, and it’s basically the same reason you wouldn’t trust a jury to, say, perform surgery or reassemble an automobile from memory.

Response to Irrational Obama Hatred on Facebook

[/the below comment is from a Facebook thread in response to a conservative friend of mine but I think it reads well removed from that context so am publishing here/]

Okay, so you have a problem because Obama chooses business winners? And he's ignored so many laws? You've just described every president in the history of this country. Oh, he bailed out the auto industry? I'll admit I had misgivings and still do about that but it's not as if the US hasn't bailed out an industry or a company before (e.g., savings and loan under G H Bush, whose son Neil had a stake and was largely let off the hook). Plus, the auto bailout worked (which is why it's not a campaign issue).

Solyndra? You mean the company that was funded by the DOE renewable energy program started by the W Bush administration? Every president expresses support for newer, cleaner, renewable energy and the program by which Solyndra was guaranteed a loan was a part of that. And Solyndra was also one of only two companies (out of 33) that failed by that program, meaning that the overall program was largely successful. And it wasn't even that the program was transparently doomed from the outset–as the bankruptcy report concluded, it was unanticipated market forces that did Solyndra in (China flooding the market with cheaper flat panels). The outrage over Solyndra, only some which is justified, doesn't match up well to the facts; but is unsurprising when considered against what companies like Solyndra represent to the industry they threaten–money out of the far more leveraged oil/gas companies' pockets. If you're getting outraged over Solyndra, you're largely being manipulated by the oil & gas industry and Rupert Murdoch.

The evidence you cite for economic disparity can't really be pinned on Obama or government handouts to the poor because the problems that led to this started long before he showed up, as the economy was made into a smoking crater only months before he landed in DC. Granted, he's not done enough to correct the problem but not for reasons we'll likely agree on. The stimulus package should've been much larger and the states held accountable for utilizing the money on infrastructure projects instead of balancing their own deficits. And the Wall Street firms that caused the collapse shouldn't have gotten a hundred cents on the dollar because they've no disincentive to repeat history and just find another bubble to inflate with new and exciting financial mechanisms that maybe three people on earth understand.

I believe change is needed too. But the problems are larger than Obama, as all he's done is maintain the status quo. Oh, and expand Bush-era 4th-amendment-eroding programs like warrantless wiretapping and torture. The irony for all the ignorant talk of how Obama's a secret Marxist Muslim, whatever that is, is that the country would probably not look significantly different under any Republican president for the last four years, with the notable and real exception being judicial nominees.

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