Since this topic arises all the time in every region of this country, I thought I’d discuss it here, and lay out both the law and my thoughts on it.

The law begins and mostly ends with the Marsh v. Chambers case [463 U.S. 783 (1983)], in which the Supreme Court found constitutional, by a 6-3 margin, the practice and funding of chaplains to lead legislative sessions in non-denominational prayer. The Court’s reasoning was explained thusly:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952).

Chief Justice Burger’s decision can be summarized in short, “We’ve always done it this way.”

The idea that “heritage” or “tradition” are somehow innately virtuous terms is an appealing notion if you’re lucky enough to be on the right side of the particular bit of history being echoed. And obviously, given that we’re a nation which has discarded many “traditions” in deference to evolved outlooks on race and gender, and even Burger admits to needing something more:

Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns.

Burger then goes on to bolster his tradition argument with a tautology, by asserting that the very fact that some people have been historically opposed to legislative prayer must mean that previous generations had seriously considered the issue and correctly concluded its constitutionality. Burger offers no evidence whether previous generations had in fact carefully pondered the constitutionality of legislative prayer, nor attempt to explain why consideration in and of itself should even matter in considering constitutional questions.

And there is good cause to suspect the constitutionality of legislative prayer.

The Constitution’s Bill of Rights is specifically intended to preserve the rights of minorities against the majority’s unconstitutional urges. “We” do not all presuppose a supreme being. I certainly don’t, and to this day flinch when I first walk into a courtroom and look up to see, above the judicial bench a plaque reading “In God We Trust.” That plaque, found in every courtroom I’ve ever walked into, is implicitly advising me that the Court shares a value system with a majority of Americans, but not me. And it’s only small comfort that any judicial decision which favored religious virtue over reason and precedent would be flatly unconstitutional; because then why else is there a need to assert so emphatically (but for those four words, courtrooms are otherwise bare) a principle which, by law, could not be cited by the court as a basis for its deciding any matter whatsoever?

I’ve never attended a municipal council meeting which began with a prayer, but I imagine I’d feel similarly excluded as when I enter a courtroom. A municipal council meeting comprised of adults considering policy questions affecting all local residents should not be exclusionary in any sense. Any prayer, by its nature, whether explicitly sectarian or non-denominational, excludes those who do not share the expressed sentiment, even if the stated purpose of the prayer is to “include.”

Moreover, I’ve always found the very concept of “non-denominational” prayer to be something of a fallacy, because the prayers which are most often fought over in court are by form and nature, largely Christian. And it is largely evangelical Christians who most fervently argue against the existence of a wall separating church and state, and who are most likely behind any introduction of prayer to municipal council meetings, in order to both push the establishment clause’s Maginot line, and in order to gain the state’s validation and endorsement (which constitutionally impermissible, see Lynch v. Donnelly) of their religious beliefs.

A good test for just how “non-denominational” the prayer is to watch how the group factionalizes after someone protests the practice. If the prayers were truly non-denominational then the group should split along non-sectarian lines; but inevitably the loudest hue and cry from defenders is that banning the practice amounts to religious persecution. But wasn’t this about religious heritage? How can there explicitly be a non-denominational free exercise interest?

Another good test is to substitute “Allah” for “God” in the prayer and watch the fireworks–”Allah” has been specifically found by the courts to be a lingual, non-demoninational, non-sectarian reference to God, and thus constitutionally acceptable, unlike references to Jesus, which explicitly refers to the Christian deity.

If hair-splitting over whether Jesus and Allah are sectarian or non-denominational seem ridiculous, you’re certainly not alone. But the existence of such controversies are better viewed, in my mind, as evidence why the entire practice should be scrapped and viewed as unconstitutional. Legislative prayer is by nature divisive and exclusionary inasmuch as it drives a wedge, whether intended or not, between the participants, by classifying some as “us” and others as “them.”

I’ve been following with some interest the upstart social network Pinterest, at first merely to gain some insight into its out-of-the-blue popularity. This wasn’t easy because I sit manifestly outside Pinterest’s demographic as a 43-year old man with an interest in news, politics, sports, and the law. The default Pinterest landing page appeals to none of those things. Rather, it’s an online scrapbook curated by women aged 25-45 who evidently read Crate & Barrel and J. Crew catalogs along with Martha Stewart magazines.

Pinterest provides a simple interface to collect and share home decor, craft projects, fashion ideas, and the like. Users can categorize their “pins” onto boards–e.g., “Great Food,” “Fashion,” and “My Style.” Under the hood, though, Pinterest is content–and gender–neutral and operates rather simply. One “pins” by pasting a URL (which can be a web page or an image file, but there must be an image on the page), typing a description, and selecting, or creating, a category. That’s it.

Finally struck by this epiphany that Pinterest was merely a well-designed organizational tool, I unfollowed nearly all my Facebook friends and family (naturally, mostly women) whose pins dominated my feed and began using Pinterest to bookmark articles about what interested me most about Pinterest–its many-faceted Copyright Problem.

The copyright problem is easy to spot if you’re an intellectual property attorney (on my Facebook page I called Pinterest an “infringement farm” ten minutes after my first visit), but especially glaring if you’re an attorney who is also a photographer. Like myself, Kirsten Kowalski qualifies as both, and on February 24, 2012, expressed her concerns in a lengthy blog post titled Why I Tearfully Deleted My Pinterest Inspiration Boards.

Pinterest Terms of Service and Your Liability

Kowalski plunges into both Pinterest’s legalese and federal law to reconcile the disconnect she saw between Pinterest’s implicit encouragement to propagate third parties’ copyrighted works and its terms of service, where it requires each user to “represent and warrant” that they possess (either as owner or licensee) the republishing rights of the works they Pin; and that their use on Pinterest violates no other third party’s intellectual property rights.

There is nothing especially atypical about Pinterest’s terms of service in this regard: “Online Service Providers” (OSPs, defined by US copyright law), such as Pinterest, only initially assume liability for the content users post to their sites. The Digital Millennium Copyright Act (DMCA) contains a safe harbor mechanism permitting Pinterest to effectively indemnify itself from copyright infringement lawsuits by timely removing alleged infringements upon notification. The process then permits users to “counternotify” after which time the OSP (Pinterest) will restore the image without fear of lawsuit, which risk is now solely borne by the user in their personal capacity.

In other words, the terms of service language about which Kowalski is most concerned isn’t especially different than most other sites’ terms of service, which, in turn, mostly restate the law with respect to assumption of liability for infringing conduct. [Note: As I was writing this post Pinterest removed from its terms of service some of its more egregious provisions, such as the right to sell your work, and a perpetual, irrevocable sublicense to your work. These and other changes made as of March 24, 2012, do little to alter the issue with which this post is chiefly concerned, namely liability for copyright infringements.]

Kowalski’s concerns aren’t unwarranted, though, because the manner in which Pinterest is commonly used by its users makes it inevitable that thousands of copyright infringements will be committed each day. But Kowalski’s fear of an infringement lawsuit has less to do with Pinterest’s terms of service, which merely reflect existing law, than with Pinterest’s business model, which relies on its users republishing unlicensed third party content. Pinterest’s terms of service and its business model are at odds, and may even serve to confuse its users, though it seems unlikely that such conflict would shift liability for infringements from Pinterest’s users back to Pinterest.

If Pinterest’s users do indeed risk an infringement lawsuit with each pin, it is worth examining first the likelihood of that risk, and then such a lawsuit’s chances of success, while also considering the possible defenses available to a Pinterest user sued for a typical infringement.

Pinterest Users — Legal vs. Real Risk

Kowalski doesn’t tackle the risk question, except to briefly allude to the fear that Pinterest is the next Napster. There are good reasons, though, both real-world and legal, why a hypothetical Pinterest user/defendant is distinguishable from the Napster defendants. The subject matter of a Pinterest-related “infringement” is an image, not a music or video file, and there are no photography rights-holding trade organizations on the scale of the RIAA and MPAA, who both can allocate significant resources to policing infringement [though many relatively small photo trade organizations exist; see here].

Because there are significant disincentives for photographers to sue for web infringements–e.g., the expense of bringing an infringement suit; obtaining personal jurisdiction over out-of-state and possibly judgment-proof defendants; nominal infringements can mean nominal damages– the cost of bringing such a suit easily can and most often is offset by the potential return. And without the luxury of RIAA/MPAA-sized resources, these cost-based risks fall on the photographer/plaintiff.

A Pinterest-based infringement is also distinguishable from Napster legally, largely because there is little room to lodge a fair-use defense for audio and video file-sharing infringements, as each audio/video file most often represents the entire infringed-upon work, untransformed in any way, and which is usually available for sale online.

So while an infringement suit against you as a Pinterest user is unlikely, a suit against some Pinterest user seems inevitable, and its outcome may serve to shape the future of Pinterest and other scrapbooking social media sites.

The Fair Use Defense — Introduction

For the unlucky Pinterest user who finds him or herself a defendant, what is their recourse? Presuming such lawsuit is adequately pled with respect to matters like jurisdiction, a defendant would argue that their use was fair, pursuant to Section 107 of the Copyright Act. Fair use can broadly be described as copyright law’s acknowledgment that certain per se infringements should nevertheless be permitted in the interest of fairness, education, and economy (not to mention in the interest the promotion of the progress of science and art, pursuant to Art. 1, Sec. 8 of the U.S. Constitution, which is a too-broad discussion for the moment).

Analytically, whether use of a work is fair is tough to determine and predict. Per Section 107, a nonexclusive four-factor test considers each of the following: the (1) purpose and character of your use; (2) nature of the copyrighted work; (3) amount and substantiality of the portion taken, and (4) effect of the use upon the potential market. I’ll refer back to these factors by their number later in this post.

No one factor is necessarily determinative, and the myriad fair use cases are of limited help, as different courts can fixate on different factual distinctions, together with the potential uniqueness of each scenario underscoring the lawsuit. These difficulties are compounded by the difficulty both attorneys and courts have had applying old copyright law to new technologies, which are often misunderstood by these new technologies.

Fair Use First Factor — Nature of Use

That disclaimer aside, some fair use cases are possibly on point. Kowalski raises an obvious one, the well-known Kelly v. Arriba Soft Corp., 336 F.3d 811(9th Cir. 2003) case, in which a photographer sued an image search engine (prior in time but similar to Google’s image search) for republishing thumbnail versions of the photographer’s images, the larger version which the photographer had himself hosted.

The Ninth Circuit analyzed each of the above-mentioned four factors in turn, concluding that Factor 2 weighed in favor of the photographer (reasoning that creative works merit stronger protection than non-creative works, but already-published works merited weaker protection); Factor 3 weighed in favor of neither party, the court reasoning that even though each copyrighted work was copied in its entirety, the search engine only rendered as much as necessary (if this sounds tautological to you, you’re not alone); and Factor 4 weighed in favor of the search engine, because far from harming the market for the images, the search engine aided the market by pushing traffic back to the photographer’s site.

The court discussed Factor 1 in significantly greater depth than Factors 2, 3, and 4, finding in favor of the search engine that the nature of the use was “transformative” inasmuch as the purpose of the use differed entirely from the plaintiff photographer’s use. A search engine republishing thumbnail images involves “more than the retransmission of the images [into] a different medium.” A necessary recontextualization takes place in which the altered image not only serves a new purpose which provides a public benefit (by way of a private benefit to Arriba Soft, of course). The court also remarked on the thumbnail image’s lack of further utility, because enlargement could not occur without sacrificing clarity.

As Kowalski rightly points out, the Arriba Soft case does not literally stand for the proposition that thumbnail images are uniformly fair use exceptions, because no one fair use factor is determinative. But the reality is that image search engines such as Arriba Soft (now Ditto.com) and Google Images would not exist if there were any legal uncertainty as to whether thumbnail images of existing copyrighted works qualified as fair use. They do, period.

A few years after deciding Arriba Soft, the Ninth Circuit found similarly in an almost identical case, Perfect 10 v. Google [captioned as Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007)]. Perfect 10 sued Google for “in-line linking” to its copyrighted images and rendering those images as thumbnails on its search engine. The Court followed the same fair use analysis as in Arriba Soft, and was further unpersuaded that the technical distinctions between Google’s and Arriba Soft’s search engines changed the outcome (unlike Arriba Soft’s, Google’s search engine presents a thumbnail of the actual copyrighted work within its own frame).

Applying Arriba Soft & Perfect 10’s First Factor Analysis to Pinterest

Presuming a hypothetical case against a Pinterest user (I’ll discuss Pinterest’s liability as a secondary infringer separately) is brought in court under the Ninth Circuit, it is likely that Factors 2, 3, and 4 would be analyzed similarly. Arriba Soft and Perfect 10 are only persuasive authority within the Ninth Circuit, though both have been cited widely and favorably by other federal courts.

However, Factor 1, the purpose and character of the use, could be a different story. In Arriba Soft and Perfect 10, the court was only confronted with search engines having rendered copyrighted works as thumbnails. Pinterest generates at least two, and likely more, copies of each image associated with every user pin, and at least one of those images is much larger than a thumbnail.

The first is a thumbnail approximately 192 pixels wide, which is comparable in size to the thumbnails generated by Google and Arriba Soft [now Ditto], and are the most common image viewed by Pinterest users, appearing on the user’s main feed showing the activity of the users they follow.

From this thumbnail-filled landing page, users can click on theirs and their followers’ thumbnails, which takes the user to a page containing a larger image of the same thumbnail, the description for the image and user comments, if any. This image can be at least 550 pixels wide (per my rough, unscientific survey). Clicking on this large image takes the user off site to the source URL the user inputted when creating the pin, which, again, can either be an image file or a web page containing an image.

As the above makes clear, Pinterest automatically generates both a thumbnail and a large copy of each source image, which it automatically republishes and presents. The size of this larger copy may even identical to the source image size, if the source image size is within Pinterest’s approximately 550 pixel wide layout constraint.

To see how little a source image can be transformed from source to Pinterest, start with the following Pin of a young boy seated on the lap of an older man waring a cowboy hat.

http://pinterest.com/pin/219902394275253825/

Clicking on the Pin takes the user to a web page which contains the same image displayed at the Pin:

http://www.shorpy.com/node/12584

The image file seen at the shorpy.com page is 439 px wide & 290 px tall, as seen here:

http://www.shorpy.com/files/images/SHORPY_8a23944a.preview.jpg

The copy of the above image generated by Pinterest is 439 px wide & 290 px tall, identical to the source image in every sense, as seen here:

http://media-cdn4.pinterest.com/upload/167336942374576111_aKYtpBwb_f.jpg

That thumbnail images can easily be distinguished from exact copies is not necessarily an outcome-determinative distinction, though. As indicated above, the four fair use factors are applied in a highly unscientific “totality of circumstances” manner, making it difficult for parties to rely on factual similarities and distinctions between decided cases and your own. But to the extent that Arriba Soft and Perfect 10 have come to stand for the proposition that “thumbmail images are fair use,” it is difficult to argue their applicability to Pinterest, whose users create both thumbnail and exact copies of hundreds of thousands of images, the overwhelming majority of which are posted without their rights ever having been negotiated.

A fair argument, however, can nevertheless be made that the purpose and character of the use (Factor One) is substantially transformed even if the use includes the republishing of an exact copy. As can be seen in the above screenshot, the copied image, when placed within Pinterest’s environment, is completely recontextualized. The user’s name who pinned the image/site is identified above the image, along with the time he/she posted it. Below the image is the user-provided caption, and a form field to enter comments, above any comments that might already have been left. Below the comments are relevant meta-data, such as the identity of the user who originally pinned the image/site, the name of board (user-determined category) onto which it was pinned, the technological mechanism by which it was pinned (e.g., a bookmarklet, web), etc.

Accordingly, it may be argued that like Arriba Soft and Google, the purpose and character of each image’s use is functionally distinct from the rights holder’s purpose and character of use. A Pinterest user effectively curates collections of imagery organized and defined by his/her own parameters, so not only is the appropriated image surrounded by a new description and new meta-data, but it is further recontextualized by how the user categorizes it–what other images it’s surrounded by. Further, the more commentary that is added (including by the user’s followers), the more the image is additionally recontextualized, and the more fair the use, or so goes the contention.

This is, in essence, the argument recently put forward by intellectual property attorney Itai Maytal, who was quoted by Business Insider asserting that Pinterest’s requirement that users add a caption to each Pin lends itself to a favorable fair use defense because the caption is “commentary, and commentary and parody are some of the types of uses that the law encourages[.]” Maytal concedes that the fair use inquiry would not end there, but even so disclaimed, the argument is problematic.

It has never been held, to the extent I can find, that an exact, unaltered, uncropped copy of an image can be sufficiently transformed, for the purpose of a fair use defense, merely by recaptioning, or adding a caption to it. It’s hard to imagine, for example, the New York Post republishing an image it copied from the New York Times website and then suggesting it had every right to do so because it ran a caption whereas the Times did not (or ran a different caption). An apt parallel media comparison might be a broadcaster attempting to argue that its disc jockeys’ talking before and after songs sufficiently transforms the songs so as to moot the need to pay royalties. If only effecting transformative use upon copyrighted works was as easy as sprinkling a few words around its edges, it would be too easy to circumvent and abuse of such a lazy standard.

There are scenarios in which captioning/recaptioning an otherwise uncropped, non-thumbnail image might tend to qualify as fair use, such as in the context of an academic paper, where the image itself were the subject of scholarly analysis, or was the subject of a parody. By contrast, Pinterest users are typically not republishing images to parodic or scholarly ends, but rather to assert those images place within the user’s particular taste spectrum. Users are essentially rogue curators, republishing unlicensed images as a personal, exhibitionistic exercise, proclaiming to their followers, “These images are me.” The amount of creativity that goes into a scholarly or parodic work of the sort held out as typical fair use examples, and a Pinterest caption is stark indeed.

Fair Use Factor Four  - Marketplace Harm: Law & Economics

Though, as I observe above, Pinterest’s users appear vulnerable with respect to the first Fair Use factor, the fourth (again, non determinable) Factor, which disfavors uses harmful to the copyrighted work’s potential market, holds some promise. Pinterest’s users typically do not seek to profit from republishing unlicensed works, and, more important, rights holders typically do not suffer from Pinterest’s users’ republication of their works. Indeed, because Pinterest requires each Pin to link back to its source material, Pinterest is, if anything, improving the potential market of unlicensed works by exposing its users to them.

Law professor Dave Fagundes, writing at PrawfsBlawg, makes the argument that a plaintiff suing a Pinterest user would face an uphill climb trying to prove that the republication of their image harmed its marketability. This is because in order to argue that the potential market is being harmed, a rights holder must show both that a real market exists and that the works’ republication on Pinterest consequently deprives that market.

As an ex-commercial photographer I’m at least nominally qualified to speculate on the types of markets that unfettered infringements by Pinterest users conceivably might harm. With regard to photographic prints, it might be argued that online copies can never serve as an adequate market substitute for physical copies unless such copies are of a high enough resolution to enable the printing of art-quality versions. But Pinterest’s largest version easily fits within the four borders of any typical computer screen and pose no threat to become repurposed as works of art, print or magazine advertisements, or to useful beyond the digital web-only environment.

Photographers who derive revenue from stock photography agencies could potentially be adversely affected by users’ republishing their unwatermarked images on Pinterest. Stock images are generally sold as hi-resolution files, far greater in size than Pinterest’s largest rendered size, but not all purchasers of stock imagery need the highest-resolution file–for web use, the Pinterest-published version of an unlicensed stock image may serve as a market substitute. It’s not even clear to me whether the republishing of stock imagery is pandemic, but many of the images posted on Pinterest are at least of similar quality to stock.

Flickr, one of the largest photography sites on the web, has already taken umbrage at Pinterest users’ unlicensed raiding of its members images, applying an “opt-out” code to those images account holders had set tighter sharing restrictions upon, and provided its account holders with a mechanism to prevent the use of their images on Pinterest. But Flickr, which is owned by Yahoo!, does not offer for sale any images of its account holders, who are largely hobbyists. Most Flickr account holders would thus have a difficult time showing market harm, unless they also proffered evidence that the images were generating revenue outside of Flickr. To the extent web traffic plays any part in the economic calculus, it is more likely that Pinterest would be found to have driven up traffic for Flickr’s account holders, and created for them more economic opportunities, as opposed to inflicting market harm.

Pinterest users also tend to post editorial photographs of the sort that regularly appear in fashion, craft, and home decor magazines. In many of these instances the question of ownership isn’t always clear–even if the photographer retained the rights, the magazine may enjoy a period of exclusivity including the right to sue. A lawsuit by rights-holding publications also seems unlikely, given how Pinterest drives traffic to the magazine and catalog sites, though such entities are better financially leveraged to engage in costly litigation than are photographers.

To the extent the photographer holds the rights or the rights revert back to him/her, the calculus switches–the photographer is less likely to benefit from the link back to the magazine or catalog, and consequently has a greater incentive to enforce the copyright, though individual photographers have fewer resources with which to litigate. Perhaps a trade association will emerge to fill this void; many exist but none on the scale of the RIAA or MPAA and none thus far who are visibly working to unite photography rights holders against Pinterest.

Despite Fagundes’s point that it essentially is the plaintiff’s burden to show market harm, defendants have thus far been able to show that their market improvement of an unlicensed work is favorably determinative.

This “market improvement” argument was primed to be fully tested after Google announced its extensive Library project in late 2004, in which Google would copy, republish, and either present or partially present more than one million books without first negotiating the rights of each one. Google would also provide a link to enable each books’ purchase and would remove the book from its library upon the complaint of any rights holder.

Not only are the public benefits to Google’s project clearly manifest, but the copyright holders also stood to benefit. [For a much deeper look into the copyright implications of the project, notably how it relates to the market harm, read Elisabeth Hanratty’s excellent student note here.] Google never explained, however, how the project could be squared with existing copyright law–Google was making full reproductions and displaying part, if not all, of the work without first even attempting to contact the rights holders. Even though it was a Win / Win / Win (Google / rights holders / public), it was also infringement.

Consequently, The Author’s Guild, a writers’ advocacy group, and then McGraw Hill, noted publisher, both sued Google, for infringement, seeking damages and injunctive relief. [Most relevant documents regarding the lawsuits can be found here]. Rather than test the uncertain waters of fair use, Google settled for approximately $125 million. [The complex, 323-page settlement [pdf here] established a fund from which authors whose works appear on Google would be compensated.]

Google’s decision to forego litigation is instructive here, because its Library model is analogous to Pinterest’s. Like Google, Pinterest is republishing works for which rights have not been negotiated, largely to the rights holders’ boon, and offering those rights holders who do not wish their works to be included, the ability to “opt out.”  Unlike Google, however, Pinterest has not negotiated a nine-figure settlement with the rights holders. Pinterest faces continued uncertainty so long as its model persists and copyright law remains unchanged.

Closing

Despite my pessimism of Pinterest’s model with regard to how courts will view users’ infringements, I’m sympathetic to those users. Copyright law’s difficulty in adjusting to the sea changes brought on by the Internet is notorious, and each new tool that comes along seems to ratchet up the challenge. On Facebook, Internet users have been trained to become collectors and curators of various pieces of the internet–stories, videos, images–to reassemble those pieces on their “walls.” Pinterest leverages Facebook users’ intuitive training to a slightly different end; whereas Facebook users engage in discussions about this link and that video, which all serve to enhance a fair use argument, Pinterest users silently collect and curate, Pinning images of someone else’s butterfly, in the process stretching how we need to think about fair use.

My above analysis is far from exhaustive as to the copyright issues raised by Pinterest. I didn’t even discuss, for example, the huge issue of Pinterest’s potential liability as a secondary infringer–are they infringement inducers like Grokster? I’ll try to tackle that problem next. But I also didn’t factor in one very interesting realpolitik factor noted by reporter Anthony Wing Kosner in his Forbes Magazine article. Kosner points out that not only is Pinterest demographically skewed to women, it skews to slightly well-to-do, educated women living in the Midwest. [Kosner cites a demographic study by Ignite] In other words, the prototypical Pinterest user is the opposite of the less sympathetic most-commonly imagined Napster user. Both parties are infringers, but it’s harder to sell the idea of Pinterest users as thieves. Time will most likely tell because Pinterest’s popularity is increasing while copyright law stubbornly remains the same.

Birther Rebirth. I’ve been loosely following [on Fogbow] a developing situation in a Georgia state court, where Orly Taitz, who is equal parts incompetent and persistent, appears to have broken through the ties that conspire to prevent her myriad lawsuits challenging Obama’s citizenship from making their way through the courts. This particular suit challenges Obama’s name appearing on the 2012 Georgia ballot. An administrative law judge issued a subpoena for Obama to appear tomorrow morning, at Taitz’s request, and denied a motion by Obama’s attorney to quash it. Obama’s attorney wrote to the [politically suicidal] Georgia Sec’y of State to suggest the entire circus be shut down, but the Sec’y just refused. Game on!

Tennessee Is Also Crazy. State legislators have proposed that the public school textbooks adopt a criteria by which “No portrayal of minority experience in the history which actually occurred shall obscure the experience or contributions of the Founding Fathers, or the majority of citizens, including those who reached positions of leadership.” In other words, the Constitution’s authors can’t be superheroes if they also slaves, because such a powerful hypocrisy might dawn on our children.

Tinkering. A seriously in-depth look at the hidden clues and meanings in the masterfully done Tinker Tailor Soldier Spy.

Finally, Community Star Wars. Hundreds of “directors” filmed Star Wars in fifteen-second segments, which was then sewn together to match the full-length feature:

A month earlier I had reluctantly willed myself from bed at a similarly ungodly hour and trudged down to Zuccotti Park (a little over a mile south from my apartment in the West Village) to witness—to legally observe—the planned eviction of the Occupy Wall Street protesters, announced for 6:00 am, October 14. I arrived a half hour early. The massive police presence I expected was nowhere in sight. If something was going to happen at 6:00 am, it would have to step on the gas because the fifty or so police sprinkled randomly throughout the park were ill-equipped to dislodge hundreds of civilly disobedient protesters. And those police didn’t seem to be on edge.

But also lined up Cedar Street, the park’s southern boundary, were at least eight media trucks. Inside the park media weren’t hard to miss either; it was still dim enough at that hour that interviewees faced both cameras and harsh lighting. An AP reporter struggled to establish a connection between her phone and laptop, which was sitting on a garbage can, while ten feet away a handful of protesters patiently waited in line to stand on a masking-taped X, and speechify into a livestreaming laptop suspended at eye-level.

I found out that the eviction had been canceled by overhearing the AP reporter on her phone. Judging from the approving roar at the east end of the park seconds later, the General Assembly must have relayed the good news via human mic only seconds later.

I contemplated going home, being likewise reprieved, but recognized some people and went over to discuss the about-face. We all speculated what was next; there were rumors that the eviction would happen later that day. We next speculated as to why it was called off—I suggested that they failed to calculate the presence of the media, who would collectively broadcast all day Friday hundreds of civil disobedience arrests, some which surely would be messy. I suggested they’d evict sometime in the wee hours over the weekend, without advance warning, when the media would be nowhere in sight.

ONE MONTH LATER, not that weekend, my premonition became reality. I reread the text message and then consulted Twitter, debating whether to go downtown. Could I even get there? As Twitter relayed the situation on the ground, the genius of police commissioner Ray Kelly became (again) apparent. Downtown was inaccessible by subway, the inbound Brooklyn Bridge was closed (I think it regularly is these days though), and most importantly, a moat of inaccessibility was created effectively isolating Zuccotti Park—rendering it near impossible to get there. There was also a rumor that the NYPD prohibited news helicopters from covering the eviction from above. I traveled light; shorts, sneakers, hooded sweatshirt, and camera. I’d regret not grabbing my sunglasses later—who leaves the apartment with sunglasses at 2 am?

I walked down Greenwich instead of the West Side Highway, trying get there—wherever there was going to be—as soon as I could. At Murray Street I saw a convoy of eight garbage trucks cross West Broadway, undoubtedly on their way to Zuccotti Park. Church and Cortlandt was the end of the line, evidently—three cops stood behind metal barricades. I asked whether I could go down, showing my legal observer credentials. No. So you’re not permitting press or legal observers down there? No. What’s your name? Sergeant Kelly. Which wasn’t true, I’d seen his badge already. The three cops chuckled to themselves as I walked away, over Cortlandt to the corner of Broadway, where I would spend the next few hours.

Others had gathered at Cortlandt and Broadway because it was as near as you could get to Zuccotti Park, from the north at least. Most were protesters who’d been forced from the park, the ones who hadn’t affixed themselves to trees with kryptonite locks around their necks. Others were gawkers and sympathizers who’d been somehow woken, kind of like me, only without the fluorescent green hat the NLG provides to us. And of course, on other side of the barricades stood at least one riot-gear-clad cop for every remaining protester; in numerous scenarios I’ve witnessed a similar 1 to 1 protester/police ratio, which of course is more source of than salve to the problem.

I contemplated circumnavigating the barricaded moat to approach from the south, perhaps, or east, but nixed the idea, figuring that a perimeter is a perimeter and if Ray Kelly was going so far to keep news copters from hovering over, I wasn’t going to get any closer than where I already stood. No one was going to bear witness to this eviction except the police executing it. Besides, if police/protester interaction was going to happen, it was going to happen here, and I was the only legal observer present, so far as I could tell, at that point. I did run into a few over the next few hours, though.

There were some minor flare-ups there on the corner, some resulting in arrests. Some people were pissed and vocal, but there wasn’t much cohesion. Mic checks prompted everyone to go here or there, but not much came of it. The most interesting moment occurred around 5:30 am, as the skies slowly lightened and commuters began to trickle in: a man wearing an expensive gray suit purposefully strode past me on Broadway, and as he approached the corner to go right, instead of walking around a few seated near the corner, viciously kicked a young woman in her side, then walked fast down Cortlandt. A number of people angrily confronted this asshole engaging in his own private counter-protest, before police settled things down and, to their credit, arrested him.

There was also a tense standoff with twenty-plus riot police who’d blocked the entire width of sidewalk on Broadway between Cortlandt and Fulton, effectively trapping myself and others between its line and barricades behind us. It was an odd and intimidating and thankfully only lasted perhaps ten minutes before they filed into the street permitting us the freedom to walk back to the corner of Cortlandt.

Gradually the police outnumbered the dissipating crowd, so I walked north (not far) to Foley Square, which Twitter suggested had become the de facto rendezvous point. It was almost fully light by the time I arrived and there was a sizeable number there. There were also a number of other NLG observers, some whom I knew, so I brought myself, and them, up to speed, comparing notes of all that had happened. It was here I found out that the NLG was trying to obtain an injunction to enable the protesters’ return to Zuccotti Park.

Another strong rumor was that at 7:00 am there was a planned rendezvous at Sixth Avenue and Canal Street, at an odd, triangular stretch of empty lot space owned by Trinity Church, whose venerable, beautiful church bookends Wall Street’s west end. The church also owns a ton of Manhattan property, much of it downtown. I suspect that the protesters thought that this lot—which I only found out that day was called Duarte Square—was similar to Zuccottti Park for its private/public character. Apparently no one bothered to ask Trinity what it thought about this idea because hours after the protesters marched there (I marched with, arriving at), I heard it reported that Trinity wanted them all gone.

Before Trinity could throw the anti-moneychangers out from their empty lot of a temple, though, another interesting thing happened: the injunction was granted, we found out. Copies of it were distributed to NLG observers, and news of it was human mic’d to the now sizable crowd—besides those who marched from Foley Square, others had marched from other locations. The triumphant but wary protesters made a decision to split up; some would stay there and a smaller contingent would march back to Zuccotti Park. It was decided that I and a few other NLG observers would march back to Zuccotti, about a mile away, with this group.

I was pretty shot by this point, but also curious to see what would happen upon the protesters’ return to Zuccotti, so I walked in the front of the pack. An older officer with a bullhorn—a short, stout, burr-headed Ralph Steadman caricature—angrily screamed at the marchers to stay on the sidewalk, which has become standard operating procedure for all marches. I tried to engage him but he wasn’t having it. Did the NYPD plan on honoring the injunction when we all got to the Park? He responded with an even angrier look (to the sky, not me, eye contact is studiously avoided by most police) and went back on script: Get on the sidewalk!

A protester asked whether I would address the legal issues with the other protesters upon our arrival—there as to be a hearing at 11:30 and everything could change depending on that hearing’s outcome. I said sure. A few blocks later, walking south on Church, past Century 21, we could see Zuccotti ahead of us. There was plenty of media tagging along at the front but they scrambled ahead to anchor themselves to get a shot of the protesters reentering the park. It was only when we were feet away from the media gaggle that I realized that behind them were barricades. Simonetti, the bullhorn cop, directed us left into a narrow barricaded corridor running up Pine Street, Zuccotti’s northern border. A barricaded dead end. The kids call this “kettling.”

I walked left and looked for police captains, or higher. Spotting a few (they were all inside Zuccotti Park), I made my case: “You do know you’re violating an injunction, right?” Stone-faced silence. I made the argument to some media, pointing out the operative language of the injunction, which couldn’t have been clearer. Behind me the protesters chanted “WE. HAVE. A COURT. ORDER.” I spoke to other police—didn’t they realize denying the protesters reentry amounted to contempt?

Some police responded that there was a hearing at 11:30 and that the injunction was meaningless until that was decided, which of course was exactly wrong—the injunction was explicitly drafted to return the protesters to the pre-eviction status quo, and it was signed by a Justice of the Supreme Court of New York State. There’s a plausible argument that the injunction should have held off allowing protesters to return to the park pending the hearing’s outcome, but it didn’t do that: it allowed them to return—with tents even—and a hearing would then decide whether they would be allowed to continue to stay.

I eventually gave up trying to convince everyone and became more concerned for my safety, as it was becoming clear that the group that had marched down was larger than this barricade corridor reserved for it. I was also tired—it was 10 am and I’d been up and out walking all over downtown for eight hours. But I was also disgusted. The city, or rather Bloomberg, had obviously made the imperious decision that a judicial order didn’t apply to him.

A core running theme of the Occupy protests is that politics is rigged to favor the money. There have been so many instances where this dynamic has played out, where the symbolic overtones are no longer parable but reality. The double-barricaded Wall Street Bull, for example, is guarded by two officers at all times. Police arrest bank customers audacious enough to cancel their accounts. Now it was the police who occupied Zuccotti Park, safely barricaded in after their methodic, disgracefully secret, eviction, despite that I held in my hand a lawful court order requiring precisely the opposite. The protesters played by the rules and still lost even when the scoreboard supposedly registered a win.

I stuck around for another hour, pled my case to more deaf police ears, and finally gave up and went home. I would find out later that afternoon that the city argued to remove the judge who had signed the injunction—she had been an ACLU attorney prior to becoming a judge, as if that should have even mattered. Until U.S. Supreme Court justices begin recusing themselves for real reasons, such as financial self-interest or prior involvement in the instant case, it’s difficult to take seriously more tenuous connections, such as supposed ideological biases, especially when the only ideological bases seen as disqualifying are on the left. Ex-Federalist Society member judges aren’t asked to recuse themselves from tort cases.

Justice Billings was replaced (I’m still unclear whether she recused herself or whether an administrative judge/panel removed her) by Justice Michael Stallman, who heard both sides of the freedom of assembly versus reasonable time/manner/place restrictions and ruled, without offering a reasoned basis, for the city. The city’s blatant contempt of Billings’ order went unmentioned in the written decision and was barely discussed in the press. The only lawlessness that can’t be excused, as any Occupy protester will tell you, is the lawlessness committed by the poor. For everyone else, it’s Calvinball over and over and over again.

[The above photos from the eviction night are included in my larger album of #ows photos here]

Maresca claims to have visited Zuccotti Park at least a half-dozen times, where he would hand out t-shirts he made with magic markers bearing the phrase “We Are the 99%” … with “You Matter” on the back. He first attempted to trademark the term “We Are the 99%” but noticed that someone had beaten him to it [per the PTO, that dubious honor goes to Brooklynite Ian McLaughlin, who seeks to use the mark in connection with the sale of clothing, bags, and bumper stickers]. Maresca then looked up the second most popular #ows protester chant–”Occupy Wall St.”–and plunked down $975, registering the mark in his wife’s name.

It’s not hard to figure out why Maresca was immediately reviled by those sympathetic to the protesters. The act of trademarking a term which grew organically to describe not just the protests at Zuccotti Park, but indeed the country, and indeed the world, is prima facie evidence of crass commercialism. How dare a single person try and co-opt the identity of a leaderless army!

But before we crucify Robert Maresca to that huge red sculpture at the southeast corner of Zuccotti Park, let’s take him at his word and take those words in the most favorable light, because (a) his intentions may have been less crass than at first appears; and (b) he’s clearly confused as to how intellectual property works and that may only be partly his fault.

First, let’s step back and be clear as to what Maresca’s $975 would buy him (assuming the application is granted). A trademark registrant owns what amounts to a limited government-backed monopoly on a word, phrase, image, and even a scent. In order to exercise this monopoly, the registrant must use the mark “in commerce.” But it’s more than a use it or lose it policy–you must also protect the mark by actively preventing others from using it. This way, not only is your investment in the good will symbolized by the mark protected, the public is likewise protected by the elimination of consumer confusion of the source of goods and services.

But, again, taking him at his words, Maresca doesn’t appear to have filed for the mark for crass commercial purposes:

“When I checked, it was available for anyone to trademark. And if I didn’t file, who’s to say who else might have grabbed it? Everybody had a right to it, and it’s important to keep it away from people who would try to use it for negative[.]“

and

He said the trademark “isn’t about me getting rich. If it turns into a big moneymaker, I would like some of it to go back to the group.”

[both quotes from Daily News story]

The existence of the public domain apparently never occurred to Maresca before he spent nearly a thousand dollars to own a term that has come to define and defend the public domain as belonging to people and not corporations. Likewise, Ian McLaughlin’s attempt to own “We Are the 99%” is similarly ironic in a forehead-smacking way–how can Mr. McLaughlin, who comprises perhaps .000000003% of the US population, own 99%?

In an interview with the Village Voice (responding to the negative publicity surrounding his application), Maresca responded to the notion that the term Occupy Wall St. may be in the public domain.

“I just wanted to protect myself,” he says. “I didn’t know that once something has been used enough like that it enters the public domain. I think that’s great. That’s how it should be.”

It’s great that Maresca thinks it’s great that the term entered the public domain, but what he perhaps doesn’t yet realize is that the public domain is incompatible with his profiting from the mark. It’s one or the other–he wouldn’t get to restrict what he considers “negative” uses while granting him permission to distribute free perpetual licenses for uses he agrees with. That’s not how monopolies work. I would expect the PTO to reject the application and render my speculation moot but you never know.

Maresca’s instinct to buy up “Occupy Wall St.” (“defensively” or not) may be less his fault than the fault of our brand-saturated society. After all, how much of what surrounds us isn’t already owned and exploited? How many similar popular phrases or terms can you name that didn’t get there via an identifiable owner? How often are terms organically propelled into the national discourse? Trademark law and the public domain rarely intersect as a matter of law (though perhaps they should more)–and when they do intersect it’s more often with respect to an individual’s fair use rights of particularly famous marks, whose ubiquity leaves it vulnerable to popular culture uses, unlike here where a mark simply sprouted from the earth for all, on behalf of all.

Then again, a search of the US Patent & Trademark Office search system for “Tea Party” returned 176 records.

The following is content I wrote as two comments on the Village Voice’s Runnin’ Scared blog in response to an update by Tony Ortega on the Janet Reitman book

Disclaimer: The below critique is in no way meant to disparage Reitman’s book, which I heartily endorse as the best book on the history of Scientology to date. Beyond getting the history and reporting right, Reitman is an excellent writer, and manages to make an extremely dense story as breezy as it possible. My issue with the book is practically insignificant, but concerns Reitman’s depiction of a young Scientologist named Natalie whom Reitman interviewed and whose views on Scientology Reitman creatively positions as a counterpoint to the egregiously awful version we all otherwise know and fear.

Inside Scientology works because Reitman had the foresight to deliberately attempt to make it unassailable, knowing full well that Scientology was going to man the harpoons. Consequently, Scientology’s boilerplate talking points and criticisms of the book have been profoundly weak.  The most damning criticism appears to be that she got the date of Hubbard’s death wrong in one section of the book (but got it right in another). The other criticism leveled at Reitman is that she didn’t talk to Scientology officials, which is manifestly disingenuous given that she did talk to Scientology officials—who then left the organization. Scientology is in charge of retaining its staff members, not Reitman, who can hardly be blamed for so many Scientologists fleeing the ship.

Reitman covered an amazing amount of territory and did justice to each subtopic she covered, but especially Lisa McPherson, which account serves as probably the best cautionary tale, to date, of a dystopian world run by Scientologists clumsily misdiagnosing the human condition, substituting their delusional certainty for the scientific method at every turn, and finally allowing the poor girl to die because of cult member after cult members’ obstinate refusal to recognize how inapplicable Hubbard’s “tech” is to real world issues.

Not that such a dystopia is realistic—luckily, Hubbard managed to egotistically sabotage Scientology by prohibiting its evolution, which will prevent it from competing even in the self-help arena, much less the religion arena, where it’s widely and properly regarded as a cult.

Which brings me to my only minor quibble with the book, where Reitman expresses hope for the future of Scientology by viewing it through the eyes of a Natalie, a hopeful youngster from an obviously well-off family. I think the decision to include Natalie was a great one, as both Reitman and the reader benefit by the depiction of Scientology’s best possible angle.  But at the same time, I don’t see any reason to view Natalie as anything but a distant outlier to the general rule, which has only ever seen the people most active and nearest to power in Scientology always employing ends-justifies-the-means rationales to consolidate power, attack critics, destroy families, surreptitiously seek coddling from government agencies (or alternatively, attack them), etc., etc.

What historical evidence has only ever shown us is that Scientology ultimately and always rewards those who apply its highest and defining precept—Keep Scientology Working—above all else. And so KSW will always trump any other bland human betterment precept cited by Hubbard and delusionally clung to by what few Natalies remain in Scientology. It was a nice thought by Reitman that the Natalie view could somehow one-day prevail (Reitman doesn’t directly suggest, but I’m inferring as much due to her ending the book with Natalie), but I don’t see any reason how or why it ever would. My criticism, therefore, isn’t that Reitman included Natalie’s viewpoint, but that she depicted Natalie’s Scientology as a potentially viable counterpoint to the formal organization’s version of Scientology without properly contextualizing it.

I think rather than Natalie’s viewpoint prevailing and supplanting the far more cynical version on display presently (keep in mind Natalie would likely vehemently disagree that hers and Organized Scientology’s version differ, but only because she doesn’t know any better), she is far more likely to leave when she gets out from under her parents as I can’t imagine she’ll take kindly to the regging when he parents cease buffering her from that reality. It’s not hard to find Independent Scientologists who get similarly doe-eyed about LRH’s contradictory views on humanity, which get harder to reconcile when you’re not permitted to speak with your family, so/but perhaps she winds up in that camp.

I’ve heard that heroin addiction is actually manageable if you’re filthy rich and well taken care of—it’s the stopping, starting, failing to eat properly, committing other crimes because you can’t properly support your lifestyle, that winds up killing you more often than the heroin. To the extent that analogy is accurate, Natalie presently enjoys many luxuries but once they stop she’ll likely come to realize that her warm fuzzy religion is a humorless and insatiable money-gorging beast.  Natalie’s Scientology doesn’t stand a chance.

So maybe (to think out loud from Reitman’s vantage for a moment) Natalie’s view comes to prevail in the Independent community, and it’s the Independent community that is truly Scientology’s future. It’s at least a more likely scenario than Natalie’s view prevailing at INT Base. But it’s still pretty unlikely as so many real-world structural hurdles exist before you even get to talk about competing ideologies, for starters the fact that there are no Independent Scientology tax-exempt entities, much less an impenetrable byzantine corporate web like that overseen by David Miscavige. Independent Scientology could only compete with organized Scientology by an IRS reversal or litigation and it’s not hard to figure who’d be odds-on favorites in either scenario.

Add to this the fact that the Independent Scientology community is comprised entirely of ex-members of the organized Scientology community—the former has no recruiting mechanism, so would have to come to resemble the organized Scientology community far more than it presently does in order to compete. And this is a scenario that present-day organized Scientology would do everything in its power to prevent. So I’m not terribly optimistic about the Independent Scientology community—which, indeed, is presently having a deleterious effect on organized Scientology—ever becoming a viable competitor. At least a kinder gentler competitor anyway—it may be possible for Marty Luther Rathbun to once again to become what he ostensibly hates most and supplant Miscavige. But even this is unlikely because CST, RTC, et al. were structured and endorsed by the IRS to keep David Miscavige in power for as long as he wants to be there.

The defendant, Hosanna-Tabor Evangelical Lutheran Church and School, was the employer of 4th grade teacher and plaintiff Cheyrl Perich from Minnesota, who fell ill with a mystery ailment in June 2004, and had to be hospitalized for several months. Six months later doctors finally diagnosed Perich with narcolepsy and advised her that with proper medication she’d be able to return to work in 2-3 months. The principal and the school board, however, became concerned about Perich’s ability to fully function and requested that she agree to a “peaceful release” whereby the school would cover Perich’s medical insurance premiums through December 2005 (and effectively waive disability). Perich rejected the release proposal and attempted to return to work (she had obtained a work release from her doctor), and was instead fired, purportedly due to her “insubordination” at the board meeting where she rejected the school’s proposal, and due to her threat to sue (which, yes, appears to be something of a tautology).

Perich filed a complaint via the EEOC against Hosanna-Tabor for wrongful termination and under the Americans with Disability Act (“ADA”) and retaliation. She ultimately joined in the complaint herself, becoming a co-plaintiff with the EEOC. After both sides filed for summary judgment, the district court found for Hosanna-Tabor, ruling that the ministerial exception precluded the court from inquiring into her claims and accordingly dismissed the claim for lack of subject matter jurisdiction. After moving to reconsider (which motion was denied), Perich and the EEOC appealed to the 11th Circuit.

In all ministerial exception cases the issue ultimately boils down to a consideration of the relationship between the employer religious entity and the employer—basically: Is the employee a “minister”? If the answer is “yes,” the employer is exempt from virtually all labor law provisions. The rationale for the ministerial exception is that the constitution prohibits court inquiry into the hiring and firing decisions of religion, lest the courts become impermissibly entangled in religious affairs. Similarly, to penalize a religious institution based on hiring and firing decisions grounded in religious criteria violates that religious entity’s free exercise rights.

In deciding whether an employee is a “minister” or “ministerial employee,” the courts have taken a myriad of approaches, most under the guise of what’s been called the “primary duties” test. At the most restrictive end of the test spectrum is the 6th Circuit’s approach in Hosanna-Tabor. Perich did teach some religious classes but she primarily administered a secular curriculum—the Court at one point literally counts the hours in a typical day for Perich, noting that more than six of her seven hour day was spent teaching secular subjects.  Moreover, both the majority and concurrence found persuasive the fact that some Hosanna-Tabor teachers were not even Lutheran yet still gave religious instruction—how can non-adherents possibly be ministers? Additionally, it didn’t hurt that Hosanna-Tabor’s personnel manual includes EEOC policy within, and that the Governing Manual for Lutheran Schools apparently contemplates that teachers are protected by labor laws.

At the opposite end of the primary duties spectrum is a highly deferential test that asks whether some of the employee’s duties are religious in nature and whether the employer based its hiring decision on religious criteria. The 5th and 9th Circuits’ adopt this approach, as typified by the Alcazar v. Corporation of the Catholic Archbishop of Seattle case, upon which basis the Headleys’ cases were dismissed. With Alcazar, the question of duties is mostly subsumed by flipping it around and looking not at what the employee does, but the intent of the employer—why the employee was hired. By eschewing objectivity, Alcazar (decided en banc) hands to religious entities a highly valuable get-out-of-labor-law-free card, by including their hiring decisions—which courts cannot question lest they become entangled in religious affairs—as a part of the test. “Yes, we hired that janitor to deliver the Word of God—why should the state have any say in the matter?” Perhaps this is extreme (a janitor likely performs no religious functions much less some), but it’s a helpful example to point out the tautological nature of the “religious criteria” prong.

The ridiculousness of Alcazar was made apparent in the Headleys suits, which were dismissed when the court analyzed their situations as follows:

 She worked for Defendants, which both are institutions within the Church. She also was able to hold the positions she had with Defendants based largely on religious criteria, namely her commitment to 1,000,000,000 years of service to Scientology and the lifestyle constraints that come with being a member of the Sea Org. See id. 2010 WL 917200, (deciding this factor was met where plaintiff was in a job available only to seminarians of the Catholic Church). Finally, as part of her duties, she performed various religious duties and responsibilities, most notably “auditing” and “cramming.”

In other words, Claire Headley was a minister because Scientology said so. The court declined to entertain what Claire or Marc Headley actually did in terms of work while in the Sea Org, 99% of which could have been performed by non-Scientologists without a hitch, because it had already found that “some” of their duties were Scientological in nature.

If the Supreme Court affirms Hosanna-Tabor (or even if it merely concurs with the result and creates a new test based on the facts (perhaps adopting Judge Helen White’s concurrence, which appears to have kept the “primary” part of the primary duties test, but also looked to whether the employee’s hiring relied upon a religious criteria) it may be necessary for the courts to reexamine the Headleys’ cases based on whatever standard the Supreme Court sets forth, and the result could be quite favorable.

If the Supreme Court were to simply affirm without comment (for the sake of argument–this won’t happen), the question in the Headleys’ cases would become how much time they spent performing secular duties and how much time they spent performing religious duties. And even if the court ultimately agreed with Scientology that every minute of a Sea Org member’s waking day is spent performing religious duties as a member of a religious order, the factual inquiry would nevertheless be fascinating… for critics anyway–Scientology would certainly be terrified to have its treatment of Sea Org members subject to the court’s scrutiny.

Beyond the Scientology implications I’ve mentioned, this case has some pretty heavy real world implications as well, as can be inferred from the huge number of amicus briefs already filed (20 in support of Hosanna-Tabor, 8 in support of the EEOC/Perich). Scotusblog entry for Hosanna-Tabor case here. There are tens of thousands of teachers teaching at parochial and sectarian schools who will be directly affected by the how the Supreme Court winds up ruling.; and my guess is that the vast majority of those teachers are under the perhaps mistaken impression that they’re protected by labor law.

Also worth noting is this 2008 Student Note in appearing in the Harvard Law Review arguing for the more deferential “primary duties” standard–though I disagree with the Note’s thesis, it’s an excellent walk through the most prominent case law (as of 2008 at least, unfortunately prior to Alcazar).

Finally, journalist Jonny Jacobson wrote an excellent post covering similar territory as this one but with a different focus. His post prompted mine, so I just wanted to give it a shout-out.

At age 9, Laura began working for the Church of Scientology’s Sea Org in the most miserable conditions imaginable in a non-third world country. At age 16 she married a fellow Scientologist staff member and soon became pregnant. Scientology forced her to abort her child–Sea Org workers with children aren’t nearly as productive and, accordingly, having them is forbidden.

Laura endured many more years of abuse within the Sea Org, spending long stretches of time on the Rehabilitation Project Force (Scientology’s brand of prison camp). In 2004, at the age of 25, she had finally had enough. Knowing that the quickest way out was to be seen as visibly suicidal, which would cause Scientology to “offload her,” she ingested bleach in view of another Sea Org worker. Laura calculated correctly–her Sea Org days were immediately over (although she remained financially on the hook–Scientology charged her $120,000 for her “job training”–and she remained a Scientologist until 2008). Her husband remained–and remains–in the Sea Org. Before leaving Laura was required to sign numerous documents releasing Scientology from liability on any number of fronts.

Laura tells her story here in a St. Pete Times produced video which was part of its extensive 2009-2010 series on Scientology, The Truth Rundown.

Jonny Jacobson provides a more thorough summary on Laura’s backstory here.

As noted above, in 2009 Laura sued the Church of Scientology in California state court on a variety of bases. (Her second amended complaint can be read here.) Scientology removed the case to federal court and moved to dismiss, arguing that the claims were time-barred. The federal court–reasoning that Laura’s claims had accrued in 2004 and each had a statute of limitations of four years, meaning that Laura needed to file suit four years after leaving Scientology, i.e., by 2008. Laura’s attorneys argued that Scientology should be equitably estopped from asserting a statute of limitations defense where they had engaged in coercive and misleading tactics designed to prevent her from bringing a lawsuit.

The federal district court disagreed, reasoning that even if true, Laura was always aware of the underlying facts which formed the basis for the lawsuit. It remanded to the state court to address the non-federal claims, which, adopting the federal court’s logic, dismissed the remaining claims as time-barred but with leave to amend the complaint, which she did. The amended complaint didn’t change things for the state court, however, which again ruled that Laura’s claims were time barred, and dismissed the complaint, this time without leave to amend. Laura appealed, contending that upon leaving she had been threatened, intimidated, and lied to that documents she signed released Scientology from liability.

In its June 24, 2011 opinion, the California Court of Appeals (Second District) agreed with Laura, finding that she had…

adequately alleged that (1) she was unable to comprehend the wrongfulness of the defendants’ conduct for a period of time and that her causes of action did not accrue until she did so and (2) even after her delayed discovery of her causes of action, the defendants’ threats and intimidation caused her to delay filing her complaint.

Scientology had also argued that the federal court dismissal of her claims collaterally estopped (essentially, legally prevented due to a prior ruling) Laura from litigating those same issues, but the appeals court noted that the federal court’s dismissal came prior to Laura’s second amended complaint, which contained new allegations not precluded by the federal judgment.

The appeals court provides a thorough explanation of the legal principle (“equitable estoppel”) that permits Laura to bring otherwise time-barred claims, but the following definition is the most concise: “Where the delay in commencing action is induced by the conduct of the defendant it cannot be availed of by him as a defense.” In other words, if Scientology in any way caused Laura to delay filing her claims, they cannot assert a statute of limitations defense.

The appeals court then finds that Laura has more than adequately pled facts in her second amended complaint which, if true, prevent Scientology from asserting the statute of limitations as a defense. Those facts are as follows:

1. She was forced to work in harsh conditions and subjected to punishment;
2. At the time she terminated her employment and left the facility in 2004, she was required to sign documents purporting to exculpate defendants and requiring her to keep certain information confidential or suffer penalties and fines;
3. Defendants knew that those documents were contrary to law and unenforceable, and that defendants intended to intimidate her into believing that she had no legal rights against them;
4. She was told at that time that she owed defendants approximately $120,000 for her job training;
5. She remained a loyal Scientology follower until July 2008 and that, as a loyal follower, she was forbidden from reading or thinking anything negative about Scientology;
6. She was threatened with harassment and banishment from her family and friends who remained at the Scientology facilities if she were deemed an enemy of Scientology;
7. After leaving the facility, she made payments on her purported debt for some time because she believed that she was obligated to do so and she reasonably believed that she had no legal rights or claims against defendants because of their representations concerning the documents that she had signed; and
8. She first realized in July 2008 that she might have legal claims against defendants despite the documents she had previously signed, when she happened upon some information on the Internet and her family members then shared their concerns.

[The above is taken directly from the court of appeals decision but I took the liberty of reformatting it for readability purposes.]

It’s helpful to realize at this point that the court is assuming the above facts are true only for the purposes of affirmatively finding whether Laura has adequately pled a cause of action able to survive Scientology’s motion to dismiss. On remand, it will be the trial court’s task to discover “[w]hether plaintiff’s reliance on the alleged threats was reasonable” based on the evidence produced at trial. This effectively means that discovery may now commence in the Laura Decrescenzo v. Church of Scientology International, Inc., et al. lawsuit.

This leaves Scientology in something of a pickle. The last thing they want is a public inquiry into the horrific conditions endured by Sea Org members. As the above video bears out, Laura comes off as credible and highly sympathetic. A trial is incredibly risky. At the same time, settling carries its own risks. As nightmarish as Laura’s story is, it is sadly not uncommon, as anyone who has researched Scientology can and will tell you. To settle would be a tacit admission that Scientology’s standard practices–with nothing more–violate various torts, labor laws, and civil rights norms. It would also be a tacit admission that the form waivers and releases Scientology requires every member to sign are ultimately unenforceable.

So what will Scientology do? If history is a reliable guide, they’ll eagerly pursue Option C–that is, neither settling nor commencing discovery–for as long as they can. But I don’t want to think out loud on Scientology’s behalf with respect to their legal options so I’ll end this here.

[NOTE: the PDF provided by Rathbun, an image of the original spreadsheet, was difficult to read (and thus unsearchable) and so Anonymous members at WWP collaboratively transcribed the document first to a Google spreadsheet (here), which I then converted to an Excel spreadsheet (here). Finally, the most easily readable and accessible version is this html version. Also, many Scientology acronyms are sprinkled throughout, most of which can be found at the the Scientology Critical Information Directory's Glossary]

The members on the list are mostly long-time “public” (not staff) Scientologists, and is probably about two years old. Some names appearing on the list have even left the CoS, such as Natalie Hagemo, who’s exit the list’s author unwittingly foretells with this comment:

Actually right now I do not use her on anything sensitive or seriously important because she has a PTS situation and just never seems to get to an org to get it handled.

On the comments section of Rathbun’s blog, Natalie acknowledges having left and offers further background on her situation.

But the list is far more fascinating and valuable than as a who’s who of OSA volunteers. The spreadsheet is filled out extensively and provides some insight into the Church of Scientology’s paranoid mind set. The list says more about its authors than those listed. For example, one column on the spreadsheet is labeled “Trusted,” which begs the question, Trusted in relation to what? Since everyone on the list is a member of Scientology, what further trust is required than those members having already paid the organization hundreds of thousands of dollars? Perhaps OSA engages in activities that if spoken openly of by the less-then-fully-trustworthy volunteer could endanger the Church? Quite likely, given OSA’s history.

Some entries suggest as much. For example, Sheldon Hogarth of the Los Gatos, CA Org:

Volunteers on MEST [ed: Matter, Energy, Space, & Time] projects such as fixing security cameras around the building. Volunteers on Org security during the day during Anon pickets. He takes photos of them and car plates. I trust him for this type of activity.

and about Bob Johnson of the Stevens Creek, CA Org:

I trust him but don’t know if I would expose him to invest items.

|Ed: invest = investigation] But another even more reasonable explanation exists. Because OSA volunteers are often called upon to interact with the general public (that is, protestors), it is important that they be so indoctrinated as to be immune to “entheta”–i.e., negative information about Scientology. Scientology members who succumb to entheta become ex-members of Scientology, and ex-members do not purchase expensive Scientology services. Remember, this list is largely comprised of OT (Operating Thetans)–people who have spent enormous amounts of money. Getting rubes into the tent is only half the game; keeping them there–especially the wealthiest rubes–is far more important. The entry for Lorin Burton of the Santa Barbara, CA Org, demonstrates what I’m talking about:

Anon pickets. As OTV used to buffer lower grade chart staff from making contact with SPs outside.

|Ed: Anon = the group known as Anonymous; SPs = suppressive persons] In other words, as an OTV, Lorin Burton is sufficiently indoctrinated to withstand the messages delivered by protestors. The flip side of this is Catherine Emrani, who may not be indoctrinated quite enough:

Has done wildcat PR/getting articles submitted without approval. Did invocation for the Glendale city council. But not an ordained minister. Went on Youtube. Got enturbulated. Demanded handling. Is OK in PT.

The term “enturbulate” is a Hubbard-invented word that means to agitate or disturb the sensibility of a Scientologist. Ms. Emrani apparently witnessed “entheta” on the Internet (take my word as a semi-frequent producer of it–it’s everywhere), became “enturbulated” and required Scientology “handling” to undo the damage. (And she undoubtedly paid for that handling.) Thus, the list author is relating that a Emrani is susceptible to entheta, which fact will affect what responsibilities are thrust upon her in the future. It is also telling that despite Emrani having furthered Scientology’s goals by submitting “articles” (most likely PR Newswire garbage), the list author remarks that she’s done so “without approval”–such is Scientology’s centralized control over even its most loyal members.

This centralized control is evident throughout the list. One way it’s evident is the running theme on the importance of interfaith initiatives. Scientology’s reputation precedes it and Scientology is as aware of this as anyone. One way Scientology attempts to counter or mitigate its reputation is to actively cast itself in a religious light. Since Scientology resembles a for-profit business than a religion as most would consider that term, it seeks out the company of other religious entities at the local level. But control over these interfaith initiatives comes from above.

For example, Gary Hedge “Helps with human rights PR: some interfaith“; John Chambers “Runs the Pasadena interfaith meetings“; Angie Derouchie is “Also in on the board of the Interreligious Action Network of Washington County as well as the Interfaith Council of Greater Portland so has most of the interfaith contacts.”

More importantly, this list is ample evidence of Scientology’s tight control over its “social-betterment” front groups, e.g., Applied Scholastics, The Way to Happiness Foundation, Narconon, and Criminon. Especially prevalent on the list is the Citizen’s Commission on Human Rights [CCHR], which regularly disclaims ties to Scientology. But how could this be so if Kenny Woo of the Stevens Creek, CA Org “is our paid CCHR staff.” Pat Wehner, from the same Org, “does various odd cycles for me including invest – CCHR and PR.” Or Sherry Ridenour of the St. Louis Org, who “mostly volunteers for CCHR-gettings ads placed. Working the exhibit when it’s in town; She has also helped on YHR events.” [ed: YHR = Youth for Human Rights, also a Scientology front group]

Nothing I’ve noted above should surprise anyone who has done any reading on the Church of Scientology; it’s entirely consistent with what is already known about Scientology. But unlike the plethora of anecdotal evidence from ex-members, this is documentary evidence of what is important to the Church of Scientology, how it controls its front groups, and the degree of control it exerts over even its public members (the degree of control it exerts over staff members is far greater).