Title: Keith Henson filing in
Graham E. Berry (State Bar #128503) Peter S. Kravitz (State Bar #178049) Attorneys for Defendant H. KEITH HENSON IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE KENNETH HODEN, Plaintiff, vs. H. KEITH HENSON, Defendant. Case No. RIC 306884 Assigned for all purposes to Hon. Stephen D. Cunnison, Department 7 TRIAL BRIEF OF DEFENDANT H. KEITH HENSON DATE: February 20, 1998 TIME: 9:00 a.m. DEPT: "7" [Filed concurrently with (1) Ex Parte Application for leave to file brief in excess of 15 pages and proposed order; (2) Appendix of Authorities; (3) Motion to Dismiss; (4) Ex Parte Application for order shortening time on hearing of Motion to Dismiss; (5) Request for Judicial Notice] I. INTRODUCTION This duplicitous action is an outrageous abuse of the legal system by that controversial organization trading as the corporations and Churches of Scientology - a dangerous cult, commercial organization and seditious political movement forever committed, by its own irrevocable policies, to the violation of the civil rights of both its own members and its many critics around the world. Plaintiff Ken Hoden is merely the alter-ego of this criminal cult and its leader, David Miscavige. Plaintiff and his counsel, Kendrick L. Moxon, Esq., have obtained the ex parte relief herein by perpetrating a fraud upon this court. However, this court need not even reach that, or any other relevant, issue. Plaintiff's petition is fatally flawed by his failure to support it with proper affidavits and to serve it timely upon Mr. Henson. Accordingly, this action should be dismissed by the court sua sponte, without further hearing, and attorneys' fees and costs awarded in Mr. Henson's favor pursuant to Code of Civil Procedure 527.6(i). The gist of plaintiff's fallacious case is that defendant is a large, drug-crazed, dangerous man with a history of violent, criminal and murderous activity within the meaning of Code of Civil Procedure ß 527.6(b). Declaration of Kenneth Hoden, 3, 4 and 5, Declaration of Kendrick L. Moxon, Exh., 1-15. However, nothing could be further from the truth as Exhibit A hereto evidences. Mr. Henson had never been arrested for any alleged Offense until he was targeted by Scientology's ferocious litigation juggernaut. The Church of Scientology, through its office of Special Affairs ("OSA") has a long and documented history of abusing the judicial system with vexatious and frivolous litigation for the purpose of harassing and destroying its critics, even framing them. This, and the related cases, are merely further examples of this sordid anti- social history. Essentially, this is a case about a powerful tax-exempt commercial and political organization pursuing its institutional policies to suppress all criticism, whether inside or outside, of the organization . Rather than accept both the benefit and the burdens of the First Amendment under which it claims to be a church, plaintiff is misusing the harassment statute to try and silence Mr. Henson's public criticism of the Church of Scientology's practices and conduct. However, at the end of the day, it will be seen that it is plaintiff and his organization who is harassing Mr. Henson, and not vice versa. II. SUMMARY OF ARGUMENT o Plaintiff's legal theories are marred by obvious procedural defects. (Addressed in the concurrently filed Motion to Dismiss.) o Constitutionally protected activity cannot constitute harassment. Code of Civil Procedure ß527.6(b). o Public issue picketing is protected by the First Amendment. Frisby v. Schultz, 487 U.S. 474, 101 L.Ed.2d 420, 108 S.Ct. 2495 (1988). o The Fourteenth Amendment has made applicable to the States the First Amendment's guarantee of free speech. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 43 L.Ed.2d 448, 95 S.Ct. 1239 (1988). o City streets and sidewalks are traditional public fora. Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996). o As Mr. Henson's activities are Constitutionally protected, the only proper inquiry is what limits can be placed upon his speech rights. Under current First Amendment analysis, the analytical framework is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen v. Women's Health Center, Inc., 512 U.S. 753, 129 L.Ed.2d 593, 606, 114 S.Ct. 2516 (1994). o There is no right of an individual to be free from public criticism of his business practices. Organization For a Better Austin v. Keefe, 402 U.S. 415, 419-20, 29 L.Ed.2d 1, 5, 91 S.Ct. 1575 (1971). o The State's interests in public safety and order can be adequately addressed by the imposition of a nominal (15 foot) fixed buffer zone around the doorways, driveways, and driveway entrances of Scientology buildings. Schenck v. Pro-Choice Network of Western New York, 519 U.S. ___, 137 L.Ed.2d 1, 117 S.Ct. 855 (1997). o A 15 foot buffer zone would ensure that people and vehicles trying to enter or exit Scientology property or parking lots can do so and ensure that Mr. Henson's message is of some consequence. Courts have consistently insured that alternative means of communication exist. Portland Fem. Women's H. Ctr. v. Advocates For Life, 859 F.2d 681 (9th Cir. 1988). o Ample alternative channels of communication do not exist if a speaker's target audience is altogether insulated from the speaker's message. Prisoners Union v. Department of Corrections, 135 Cal.App.3d 930, 936 (1982). o Injunctive relief is an equitable remedy rarely granted to restrain speech or publication. Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial, 9:708. o Plaintiff's conduct estops application of the equitable relief he seeks to enforce. Witkin, California Procedure (4th Edition) Provisional Remedies ß342. III. FACTUAL AND PROCEDURAL BACKGROUND Mr. Henson believes that sometimes it is right to do what more timid and easily-cowered citizens would consider the wrong thing - to make a stand for truth, justice and the American Way even though, as here, that means directly engaging the dangerous and criminal cult, commercial enterprise and treasonous political organization masquerading as the churches and corporations of Scientology. Mr. Henson, a 5'9" tall, grey grandfather, is a Silicon Valley computer engineer. He is engaged in the research and development of computer hardware and software. As such, he is also a netizen. On November 1, 1995, he saw wrong and has since been trying to right it. He observed the awesome might of the Scientology litigation juggernaut, engaged in its abhorrent anti- social Blitzkriegs and totalitarian objectives. He read of the frightening force of the cruel Scientology litigation monster, using perjury and deception, to persuade three federal judges to issue ex parte orders authorizing the church to raid and ransack the homes of its critics, to seize and strip their computers and to improperly take the computers, and the contents of those computers, into their own custody for review, analysis and, as it turned out, substantial destruction and damage. Two of the three initial cases are still pending. Others have been subsequently filed. Along with millions of people outraged at such a blatant misuse of the American legal system, Mr. Henson examined this so-called Church of Scientology which had previously been of no interest to him. He discovered a mafia-like international commercial enterprise maintaining the post-founding pretense of religiosity in order to operate tax-free in countries where it was convenient to do so. Among other things, he learned: o That L. Ron Hubbard had been found by a California court to be "a pathological liar when it comes to his history, background and achievements" and he was in hiding at the time of his death which was accompanied by many irregularities. o That the Church of Scientology had instituted its "Operation Snow White" and "Project Target Dodell" to conduct the largest known infiltration of the United States government, and at least 12 of its major departments, including the I.R.S. and the Justice Department. Eleven of L. Ron Hubbard's senior subordinates, including his wife, received prison sentences for their parts in these vast criminal activities which included theft of U.S. government documents, obstruction of justice, and other "fair game" related activities against the United States government. Moreover, Scientology's attorney herein was an unindicted co-conspirator in these matters and his material role in the obstruction of justice and falsifying of documents discussed in the 284-page stipulation of evidence. o In 1992, the Church of Scientology had become the first religious organization in Canada to be convicted of criminal conduct. Specifically, stealing documents from law firms, public associations and government entities -- and breach of trust. In addition, in the Casey Hill litigation, Scientology was ordered to pay millions of dollars to Canadian lawyer, Casey Hill, for slandering his reputation. o In 1996, former French Scientology leader, Jean-Jacques Mazier, was convicted of fraud and driving Scientologist Patrice Vic to suicide (negligent homicide). Thirteen other Scientologists were convicted of fraud and other misdemeanors in the same trial. o In 1978, L. Ron Hubbard was convicted of criminal fraud in France, and sentenced to a four-year prison. Although convicted in absentia, Mr. Hubbard never exercised his right to go to France and contest the conviction. The same judgment condemned Henry Zaarhuis (Scientology's Executive Director for France), Jacqueline Valentin (President of Scientology, France) and Georges Andreu to prison sentences of one to three years. o The President of the Church of Scientology, Heber Jentzsch, was arrested in Spain in 1988 and, after 30 days in prison, is currently free on $1 million bail and pending trial, along with many other Scientologists, on criminal charges that included infiltrating government agencies, stealing government documents and tax fraud. o Scientologists had been convicted of Scientology-related criminal conduct, including fraud, in Italy and Switzerland. o Evidence of Scientology-related instructions to commit murder, suicides and financial frauds was all over the Internet as a result of the Church of Scientology International v. Fishman & Geertz case. Indeed, allegations of over 270 Scientology- related mysterious deaths, suicides and psychotic breaks (PTS type III in Scientology jargon) had been made in the case before it was voluntarily dismissed by the Church on the eve of trial. o Scientology had chosen not to be a church in Greece where it traded as "Centre for Applied Philosophy". o In France, the Ministre de l'Interior et des Cultes had stated that it was totally out of the question to consider any Church of Scientology application for religious tax exempt status. Moreover, an Assemble Nationale (Senate) report on cults concluded that Scientology appears to be one of the most "dangerous" groups. o In 1998, Scientology was ordered to close permanently and liquidate in Greece. The Greek court of appeal described Scientology as an organization with totalitarian structures and trends, aiming at power and money and applying dangerous methods without preventing the possibility of suicide of its members who were brainwashed. In addition, it held that Scientology was an economic enterprise and not a religion. o Scientology is under police surveillance in Germany which considers it to be a threat to democracy as a totalitarian conspiratorial movement with global political aims. o L. Ron Hubbard's sacred scriptures provided for Scientology to "take over the control or allegiance of key political figures, the heads or proprietors of all news media, those who monitor international finance and to "clear the planet"; exterminate undesirables (such as homosexuals) and rule the world according to Scientology technology (e.g., "Targets, Defense: HCOPL 16 Feb 1969, reiss. 24 Sept. 1987). Those who stood in the way, or who criticized Scientology, were to be labelled criminals and liars. Indeed, on March 24, 1964, Hubbard introduced his 10-step plan to world domination and it is now a sacred Scientology scripture. In Scientology's twisted jargon, its misleading objective of a "clear planet," "without crime" and "with ethics" really means a world ruled by Scientology, without opponents and critics being destroyed by the fair game doctrine and the application of other sacred Scientology scriptures. o Scientology had been denied tax exempt status in many German states because it is a commercial enterprise -- "an organization which under the disguise of a religious group combines elements of business crimes and psycho-terror against its own members with economic activities sectarian traits. The focal point of their activities appear to be in their area of economic crimes." o A high ranking member of Scientology's Office of Special Affairs, Kurt Weiland, had twice been convicted of criminal slander (of another religion) in Germany, fined and threatened with imprisonment. o The English High Court (Justice Latey) had held that Scientology is immoral, socially obnoxious, corrupt, sinister and dangerous. Its essential practice, auditing "is a process of conditioning, brainwashing and indoctrination." o Scientology had been banned in Rhodesia and in certain states in Australia. Restrictions had been placed on it, and Scientologists, in Great Britain and New Zealand. o Scientology was not permitted to run schools in Lausanne, Switzerland, because the Scientology methods of teaching were "dangerous" . o Scientology did not operate as a Church in either Israel, Sweden or Mexico. o Scientology had framed critic Paulette Cooper on false bomb threat charges which were only dropped after the F.B.I. discovered the relevant documentary evidence of Scientology's involvement during its 1977 raids on Scientology. o Scientology's tax-exempt status in the United States was the product of fraud and the tax settlement agreement (reducing Scientology's tax liability from a possible $1 billion to $12 million) was being violated daily. Indeed, an affidavit of Andre Tabayoyan, available on the Internet, alleged that Scientology had concealed 12 sea containers of documents from the I.R.S. and that celebrity Scientologist, Tom Cruise, had benefitted from Scientology tax fraud in the form of 'inurement'. o There were numerous affidavits on the Internet, containing testimony that: (1) Scientology's desert base was heavily "armed" and "dangerous" and that it housed one of Scientology's Rehabilitation Project Force camps -- referred to as "concentration camps" or "gulags" by former Scientologists; (2) Scientology's base at Hemet was heavily guarded; (3) numerous female Scientologists at the Hemet base had been ordered and coerced to have abortions because babies, like "family time", interfere with "production" and making money. o Scientology even had drills (e.g., "TR-L -- Training-Routine Lying," "Know-not Know," "How to tell an acceptable truth," and "Hatting the Witness") to teach Scientology staffers how to lie, even on the witness stand, in a convincing manner. One of the alleged trade secret documents Mr. Henson discovered was NOTS Series 34 ("The Sequence For Handling A Physical Condition). NOTS 34 is a Scientology "process" involving the use of the Church of Scientology's E-meter to cure bodily illnesses. Mr. Henson considered NOTS 34 to be yet another example of the Church of Scientology being engaged in the unlawful practice of medicine and he posted it to the Internet "in order to aid the public interest by warning against the public against an unobvious danger of harm, established by a previous order." This previous order is an order issued by Judge Gesell in United States v. an Article or Device (Hubbard) Electrometer, et al., 333 F. Supp. 357 (D. D.C. 1971) which "forbids the Church of Scientology and all related organizations from claiming to heal using an "E-meter." The Scientology organization, through its senior corporation, Religious Technology Center, brought suit for alleged copyright infringement and trade secret violations against Mr. Henson. This action, which can be referred to as Henson I, is pending in the United States District Court, Northern District of California (San Jose) before Hon. Ronald M. Whyte. Because the Henson I court found, on summary judgment, that Mr. Henson's posting of NOTS Series 34 was accompanied by very limited commentary, it was only minimally transformative and, therefore, did not satisfy the statutory fair use defense. 17 U.S.C. ß107. However, the court found that a question of fact existed as to willfulness and denied RTC's claim for costs and attorneys' fees. In November 1995, the late Lisa McPherson, a Scientologist, was engaged in a traffic accident. She stripped off her clothes, walked naked down the street saying "I wanted help. I wanted help." She was taken to a psychiatric hospital and was removed, against medical advice, by Scientology staffers. Seventeen days later, after being kept under a 24-hour watch, and put on Scientology's "introspection" or "isolation" run-down, she was dead. She had spit out food, banged violently on the walls of her room (cell) and hallucinated. She was covered with cockroach bites. The Coroner found that she had been deprived of water for at least her last five to ten days and died of a blood clot brought on by severe dehydration. The Clearwater police have recommended the Church be indicted criminally (negligent homicide). Civil proceedings (wrongful death) are pending. The mysterious deaths of Lisa McPherson, and other Scientologists, fueled media scrutiny, demonstrations and picketing. "Scientology Kills" became a picketing slogan. Angered by Church of Scientology harassment against him, his family and friends, and the church's "noisy investigation" tactics, Mr. Henson participated in some of the pickets of Scientology premises. Scientology then moved to put his "head on a pike." On May 21, 1997, it obtained an ex parte restraining order against Mr. Henson in Riverside County (97- 296710). These proceedings, which can be referred to as Henson II, were never served upon Mr. Henson who continued to join pickets, and to be a lonely picketeer himself, in front of Scientology buildings and its armed compoundbase near Hemet, California. On October 16, 1997, Senior Scientology official Glenn Barton filed an ex parte petition for injunction prohibiting harassment. Barton v. Henson (Los Angeles Superior Court Case No. BS 047684) was assigned to Hon. James Bascue and can be referred to as Henson III. At the hearing, on October 31, 1997, Mr. Henson was not represented by counsel and entered into a stipulation restricting his picketing activities in such a way that he believed would permit Glenn Barton to enter and exit Scientology buildings while still enabling himself (Mr. Henson) to reach his audience. Indeed, Mr. Henson stated on the record that the 25-yard zone "sounded fair", so long as Mr. Barton was not chasing Mr. Henson. Scientology counsel assured the court that this would not occur. It did, despite the court's concern that the stipulated order not restrict Mr. Henson's ability "to exercise his First Amendment rights." (35:24). On November 1, 1997, Mr. Henson, with a companion as a witness, peacefully picketed on public property near Scientology buildings. As the videotape evidence demonstrates, this required constant vigilance because of continual attempts by Mr. Barton to ambush Mr. Henson by "popping out" of entrances of Scientology buildings, walking around the block to meet Mr. Henson and even hiding behind bushes, in an effort to use the court's stipulated order as a sword instead of its intended shield. That same evening, Mr. Henson picketed at the Shrine Auditorium, off Shrine property, and beyond the court's prescribed distance from Mr. Barton. Mr. Barton, who is also a LAPD chaplain, made a citizen's arrest of Mr. Henson and he was turned over to the Los Angeles Police Department, charged with violating a restraining order, taken into custody, imprisoned and later released on bail. This alleged criminal misdemeanor violation can be referred to as Henson IV. On November 26, 1997, Mr. Henson appeared for his arraignment on the criminal charge (Henson IV) arising from his arrest by Mr. Barton. Following the arraignment, Mr. Henson went to Hollywood and picketed the Scientology building at Hollywood and Ivar where he was approached by Elliott Abelson, Esq., on behalf of the Church of Scientology. Mr. Henson left and then picketed another Scientology building at 6700 Hollywood. Twenty minutes later, Mr. Barton arrived with Elliott Abelson, Esq. and several private investigators. Mr. Henson retreated to allow Mr. Barton to enter. However, Mr. Barton pursued Mr. Henson and one of the Scientology private investigators (Edwin Richardson) placed Mr. Henson under citizen's arrest, again alleging that the court's order applied at times Mr. Barton was not clearly entering or leaving buildings but actually pursuing Mr. Henson. When Mr. Henson said that was absurd and started to leave, he was jumped from behind, choked to near unconsciousness, his video camera and picket sign knocked to the ground, his car keys wrenched from his hand and investigator Richardson's elbow shoved in his mouth. Mr. Henson accidentally bit Mr. Richardson's elbow as it was thrust in his mouth. Mr. Barton and Elliott Abelson, Esq. then summoned the LAPD, who again arrested Mr. Henson for violating the restraining order and committing a battery upon the investigator who jumped him. He was taken into policy custody, incarcerated for a second time and subsequently released on bail. This case can be referred to as Henson V. On December 6, 1997, a picket and vigil for the late Lisa McPherson was planned to take place at Clearwater, Florida. Concerned that Mr. Henson might attend this picket, the Church of Scientology ensured that Muriel Patricia Jones obtained an ex parte temporary injunction ordering Mr. Henson not only to stay away from Ms. Jones, but to also "stay at least 100 yards away from 14 designated Scientology buildings." Although Mr. Henson did not go to Florida and join the Clearwater picket, Scientology is still proceeding with this litigation. It can be referred to as Henson VI. On January 5 and 6, 1998, Mr. Henson was required to be in Los Angeles before his arraignment upon the criminal charges constituting Henson IV and V. Although Scientology, and certainly Elliott Abelson, Esq. attempted to object to Mr. Henson's release, in Henson IV on bail on his "own recognizance," he was bound over for a future appearance. Mr. Henson decided he could not picket the Church of Scientology buildings in Los Angeles because Glenn Barton would likely be deployed to create or fabricate a violation of the restraining order and then execute another citizen's arrest and temporary incarceration of Mr. Henson until bail could be obtained. Accordingly, Mr. Henson proceeded to Hemet, California where Scientology maintained its Gold base and notorious Rehabilitation Project Force Facility. Fearful of picketing such a facility alone, he hired a private investigator/retired police officer to accompany him. At Hemet, Mr. Henson proceeded to walk down the public road near the main entrance to the Scientology base. About 50 yards from the main gate, Ken Hoden stopped in a car, got out and started abusing Mr. Henson for picketing the base. As Mr. Henson continued to walk down the road carrying his picket sign, Mr. Hoden walked beside him wanting to know why Mr. Henson was picketing Mr. Hoden's "home." Plaintiff followed Mr. Henson for almost his entire picket along the public roadside in Hemet. Subsequently, Mr. Hoden got back in his car and left. Mr. Henson proceeded with his picket for a short time longer and then he left the vicinity of Scientology's heavily armed and guarded desert base. On January 14, 1998, Ken Hoden obtained an ex parte restraining order prohibiting Mr. Henson from approaching within 500 yards of the Church of Scientology International's desert base at Hemet. Not only could Mr. Henson not bring his message to his chosen audience, but he could not even use the public highways near his chosen audience. Five hundred yards is the equivalent of five football fields or seven New York City blocks. Mr. Henson believes that he needs to address Scientologists directly because they are the victims of brainwashing, blackmail, coercive indoctrination and a cult environment. In this regard, Scientologists do not have any constitutional right to be let alone from receiving such messages. See generally, Section IV(C) herein. Mr. Hoden's ex parte restraining order was obtained with a supporting declaration of Scientology attorney Kendrick L. Moxon, Esq. Mr. Moxon's supporting declaration was full of the specific perjurious allegations intended to materially mislead the court into granting an unconstitutional temporary restraining order. Since Mr. Moxon's declaration is an integral basis for the interim relief obtained by Mr. Hoden, he will be a necessary percipient witness at the hearing herein, despite his also appearing as counsel for Mr. Hoden. IV. REV. HODEN IS THE ALTER EGO OF THE CHURCH OF SCIENTOLOGY AND ITS LEADER, DAVID MISCAVIGE Part of Scientology's desert base at Hemet is occupied by Scientology's propaganda film unit known as Golden Era Productions. Rev. Hoden is understood to be the general manager of the film unit, which is part of the Church of Scientology International. Ken Hoden is also a member of the Scientology sea-organization, and, as such, he has signed a solemn contract to serve Scientology for one billion years! Rev. Hoden is not seeking a permanent restraining order because of a course of conduct Mr. Henson has specifically directed at Rev. Hoden personally. Rev. Hoden is seeking a permanent restraining order against Mr. Henson because he has been ordered to do so by his "senior" or "terminal". Scientology is a para- military organization with various command and communication lines. Orders go down-lines. Money goes up-lines. At the top of the Scientology command chart is David Miscavige ("DM"), the successor to L. Ron Hubbard. He resides at the Hemet Base. DM is chairman of Religious Technology Center which gives him authority to, among other things, put Rev. Hoden on "lower ethics conditions", send Rev. Ken Hoden to the Rehabilitation Project Force (or Gulag), or even to expel him for failing to obey an order to "shut down" Mr. Henson's picketing of Scientology facilities. Because Scientologists truly believe that the only way to the next life on this planet is via the Scientology Bridge To Total Freedom, Scientologists will do anything they are told to stay on The Bridge. Because the Sea Organization, with DM at its head, has the power to deny a Scientologist the Bridge to Total Freedom, DM's power is totally absolute. He controls people, such as Ken Hoden, with fear, if only the fear of being sent to the R.P.F. or being "over-boarded" into the shallow lake at the Hemet base. Accordingly, as a matter of Scientology doctrine, a single individual, "Sea Org" Captain and RTC's Chairman of the Board, wields unchallenged control over all Scientology matters -- including the instant litigation -- unhampered by such bothersome details as corporate boundaries. Indeed, the United States Claims Court, in attempting to untangle the corporate web in Church of Spiritual Technology v. United States, 26 Cl. Ct 713, 718 (1992), aff'd, 991 F.2d 812 (Fed. Cir. 1993), declared: After carefully examining the record and attempting to understand the nominal corporate structure of Scientology it is apparent to the court that it is something of a deceptis visus. Real control is exercised less formally, but more tangibly, through an unincorporated association, the Sea Organization, more commonly referred to as the Sea Org. Recently, in Wollersheim v. Church of Scientology, et al., Los Angeles County Superior Court Case No. C882027, a multi- million dollar judgment against Church of Scientology California was amended to add Religious Technology Center and Church of Scientology International. In so doing, the court accepted an alter ego argument and held, among other things, that "RTC's present chairman and highest officer in the power hub, "Sea Org", David Miscavige, supervised and controlled the defense." Even more recently, the 1993 IRS-Scientology Closing Agreement was published. In this document, the IRS itself disregards Scientology's corporate structures and agrees to deal directly with David Miscavige and the Church Compliance Tax Committee, to which the IRS amazingly delegated tax compliance responsibility! Scientology, through Kendrick Moxon's "Plan 100", filed 50 cookie-cutter lawsuits against the Cult Awareness Network ("CAN") which it bankrupted, took over and now operates as a front group. Recently, Mr. Moxon said on CBS's "60 Minutes" that it was mere coincidence that 50 Scientologists (including Rev. Glenn Barton) all retained his law firm to file 50 near identical lawsuits. However, there is no such thing as individual initiative in the Sea Org. The argument that Scientology staffers, such as Glenn Barton, individually sued CAN is as fallacious as an argument that American helicopters were in Iran to rescue hostages without the knowledge and approval of President Carter. The Rev. Ken Hoden is no more an individual within the meaning of Code Civ. Proc. ß527.6(a) than those unfortunate helicopter pilots were on an individual rescue mission in the Iranian desert. V. MR. HENSON HAS BEEN TARGETED FOR DESTRUCTION BY REV. HODEN AND THE ORGANIZATION HE REPRESENTS Mr. Henson is deemed by Mr. Hoden and his Scientology organization to be a "Suppressive Person" because he has engaged in "acts calculated to impede or destroy Scientology or a scientologist." As such, Mr. Henson is subject to Scientology's Fair Game Doctrine. It is beyond question that numerous reported decisions and Department of Justice documents establish that Scientology has developed a "fair game doctrine" to punish persons who Scientology believes have injured the organization. The "fair game doctrine" "permits a suppressive person to be tricked, sued or lied to or destroyed . . . [or] deprived of property or injured by any means by any Scientologist. . . ." (Church of Scientology v. Armstrong, 232 Cal.App.3d 1060, 1067 (1991). See also Church of Scientology v. Armstrong, supra, at 1063-67, ["the Court also determined that Armstrong . . . believed the Church threatened to harm him and his wife . . . Commencing in February 1982 the international Church of Scientology issued a series of 'suppressive persons declares' in effect labeling Armstrong an enemy of the Church . . . These 'declares' subjected Armstrong to the 'Fair Game Doctrine' of the Church, which permits a suppressive person to be 'tricked, sued, or lied to or destroyed . . . [or] deprived of property or injured by any means by any Scientologist . . .' In early May 1982, [Armstrong] became aware of private investigators watching his house and following him. These events caused Armstrong to fear that his life and that of his wife were in danger . . . Following commencement of the instant action, Armstrong was pushed or shoved by one of the Church's investigators. In a later incident, his elbow was struck by an investigator's vehicle; still later, the same investigator pulled in front of Armstrong on a freeway and slammed on his brakes. This investigator's vehicle also crossed a lane line as if to push Armstrong off the road."]; Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 888-91; 260 Cal. Rptr. 331, 341-43 (1989). ["Substantial evidence supports the conclusion Scientology leaders made the deliberate decision to ruin Wollersheim economically and possibly psychologically. . . . [Wollersheim] was bankrupted by a campaign his former religion carefully designed with the specific intent it bankrupt him."; Allard v. Church of Scientology, 58 Cal.App.3d 439, 443 n. 1, 447, ["One such policy, to be enforced against 'enemies' or 'suppressive persons' was that formerly entitled 'fair game.' That person 'may be deprived of property or injured by any means by any scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed' . . . Evidence of such policy statements were damaging to [the Church of Scientology], but they were entirely relevant. They were not prejudicial. A party whose reprehensible acts are the cause of harm to another and the reason for the lawsuit by the other cannot be heard to complain that its conduct is so bad that it should not be disclosed."]; United States v. Katter, 840 F.2d 118, 125-26 (1st Cir. 1988). [In the late 1970s, the United States successfully prosecuted a number of high-level Scientologist operatives for various crimes involving illegal break-ins, burglaries and wire taps . . . In its sentencing memorandum . . . submitted to the federal court in 1980, the Justice Department characterized the defendants' [Scientologists] 'brazen and persistent burglaries and thefts' as 'but one minor aspect of the defendants' wanton assault upon the laws of this country,' and noted the defendants' crimes were 'of a breadth and scope previously unheard.' . . . The sentencing memo accused the Church and its members of considering themselves 'above the law.' with 'carte blanche' to violate the rights of others, [and] to frame critics in order to destroy them.' The Church, according to the U.S. Attorney, 'launched vicious smear campaigns against those perceived to be enemies of Scientology.' The Church's methods for this included subornation of perjury. The sentencing memo also acknowledged the existence of the Fair Game Doctrine as the active animating philosophy of the Church."]; Van Schaick v. Church of Scientology, 535 F.Supp. 1125, 1131 n. 4 (D. Mass 1982); Christofferson v. Church of Scientology, 57 Ore. App. 203, 644 P.2d 577, 590-92 (1982). Some of Scientology's other illegal activities are described in Church of Scientology v. Commissioner, 83 U.S. Tax Ct. Rpts. 381, 429-42 (1984), ["Petitioner [Church of Scientology of California], its agents, and others willfully and knowingly conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of petitioner and from other Scientology organizations and officials. The conspiracy began in 1969 and continued until approximately July 7, 1977 when the FBI pursuant to a warrant, searched petitioner's premises for evidence of the conspiracy and related crimes. . . . During and after the documented years, petitioner's Guardian Offices in the United States and the United Kingdom planned and executed a scheme to infiltrate the IRS, seize records pertaining to Scientology-related tax matters pending before the IRS, and conceal petitioner's connection to these covert, illegal activities. . . . Pursuant to Guardian Order 1361, the IRS offices in Washington, D.C., were burglarized and documents relating to petitioner and other Scientology churches were taken and forwarded to petitioner's Guardian Office. . . . The conspiracy spanned 8 years . . . The Scheme involved manufacturing and falsifying records to present to the IRS, burglarizing IRS offices and stealing Government documents, and subverting Government processes for unlawful purposes. For example, Freedom of Information Act requests were planned for the purpose of having the IRS amass records in one central place where they would be easier to steal. . . . In pursuit of the conspiracy, petitioner filed false tax returns, burglarized IRS offices, stole IRS documents, and harassed, delayed, and obstructed IRS agents who tried to audit the Church's records. Petitioner gave false information to and concealed relevant information from the IRS about its corporate structure and relationship to OTS. . . . Petitioner's course of conduct between 1969 and 1977 constitutes a violation of 18 U.S.C. ß371 . . . a venerable and major Federal criminal statute. . . . Petitioner's conspiratorial efforts were systematic and long lived. . . . Church officials at the highest level of the hierarchy, not just ordinary Church members, participated in the conspiracy. Indeed, some high Church officials were finally convicted for their illegal activities."]; United States v. Hubbard, 474 F. Supp. 64, 70-77, 79, 83-84 (D.C. 1979). The evidence in other cases, such as Church of Scientology International v. Fishman & Geertz, U.S.D.C., C.D. Cal. Case No. 91-6426HLH, also indicates that the illegal activities of the Church and its attorneys continue to this day. For example, the deposition testimony of Garry Scarff in that case also allegedly connected the Church and its attorneys (Bowles & Moxon) to similar conduct including: conspiracy to murder the President of the Cult of Awareness Network and acts done in furtherance of that conspiracy; a conspiracy to murder opposing counsel, the burglarizing of opposing counsel's offices, the filing of a phony State Bar Complaint against opposing counsel, the preparation of perjured declarations, the funding of false lawsuits and a plan to have 100 false lawsuits on file against the Church's perceived enemies,as part of Bowles & Moxon's "Plan 100". Bowles & Moxon was then the in-house legal unit of CSI's Office of Special Affairs (OSA). Furthermore, Kendrick Moxon was an unindicted co- conspirator in U.S. v. Hubbard, 474 F. Supp. 64, 70-77, 79, 83-84 (1979). His criminal conduct is repeatedly referred to in the 284 page stipulation of evidence, U.S.D.C. Dis. of Columbia Criminal Case No. 78-401. Gary Scarff testified in the Fishman-Geertz case that Timothy Bowles (former Kendrick L. Moxon's law partner) established Scientology's witness school which allegedly coaches Scientology witnesses to lie and commit perjury. Moreover, that he was involved in the intimidation of Judge Jones in the case of Cristofferson v. Church of Scientology, 57 Ore. App. 203, 664 P.2d 577, 590-92 (1982). In addition, it was alleged, under oath in the Fishman-Geertz case, that it was Kendrick Moxon, Esq. who ordered the killing of Judge Swearinger's dog during Wollersheim v. Church of Scientology. The Church of Scientology International voluntarily dismissed the Fishman-Geertz case on the eve of trial and obtained an order sealing the court files and other evidence therein. VI. MR. HODEN AND THE SCIENTOLOGY ORGANIZATION ABUSE LITIGATION FOR THE PURPOSES OF HARASSMENT The corollary to the "Fair Game" Doctrine is the "Religious Practice" set forth in the Cults' "Scripture" known as the "Level O checksheet" which provides that: The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly. (Emphasis added.) That is the purpose of these seven lawsuits against Mr. Henson. The Cult is so anxious to abuse process against a solitary picketer that it claims it needs ex parte relief, unconstitutional restraining orders and actions scattered around the state and across the country. In 1996, the Ninth Circuit held, in an unpublished decision, that scientology "was playing 'fast and loose' with the judicial system." Religious Technology Center, et al. v. Scott, et al., No. 94-55781. In so doing, the court upheld sanctions of $2.9 million and quoted from a declaration of United States District Court Judge Ideman: [Scientology has] utilized every device that we on the District Court have ever heard of to avoid such compliance, and some that are new to us. This noncompliance has consisted of evasions, misrepresentations, broken promises and lies. . . . [Scientology] by this tactic [has] had the effect of massively increasing the costs of the other parties, and, for awhile, to the Court. . . . Yet it is all puffery -- motions without merit or substance." Scientology's massive over-litigation and abuse of the judicial system were also documented and discussed in Church of Scientology v. Wollersheim, 42 Cal.App.4th 628, 648-49 (1996). Finding that the Church of Scientology had engaged "in a course of oppressive litigation conduct", the court stated that When one party to a lawsuit continuously and unsuccessfully uses the litigation process to bludgeon the opponent into submission, those actions must be closely scrutinized for constitutional implications. (Emphasis added.) Upon remand, the trial court awarded approximately $500,000 in attorney's fees against the Church of Scientology. VII. ARGUMENT A. CONSTITUTIONALLY PROTECTED ACTIVITY CANNOT CONSTITUTE HARASSMENT. "Harassment" is a "knowing and willful course of conduct directed at a specific person which seriously alarms, annoys or harasses the person, and which serves no legitimate purpose." Code of Civil Procedure ß 527.6(b). This course of conduct "must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff." Code of Civil Procedure ß 527.6(b); Schraer v. Berkeley Property Owners Ass'n, 207 Cal.App.3d 719 (1989); Schild v. Rubin, 232 Cal.App.3d 755, 763 (1991) (there must be medical, psychological, or other evidence establishing that the "harassing" activity is the cause of "substantial emotional distress" within meaning of C.C.P. 527.6(b)). "Course of conduct" is defined as a "pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." Code of Civil Procedure 527.6(b); see also Leydon v. Alexander, 212 Cal.App.3d 1, 5 (1989) (single incident in which former city employee verbally abused plaintiff and another employee could not meet statutory requirement of course of conduct). A trial court may not issue an injunction against harassment unless it finds by clear and convincing evidence that unlawful harassment already exists in fact. Code of Civil Procedure ß 527.6(d); Schraer, supra, 207 Cal.App.3d 719. However, as constitutionally protected activity is excluded from the meaning of "course of conduct", Code of Civil Procedure 527.6(b), there is no need to entertain the traditional inquiry as to whether clear and convincing evidence exists warranting injunctive relief. B. MR. HENSON'S ACTIVITIES ARE CONSTITUTIONALLY PROTECTED The true inquiry is whether Mr. Henson's activities are Constitutionally protected and if so what limits can be placed upon his speech rights. First, public issue picketing is an activity protected by the First Amendment. Frisby v. Schultz, 487 U.S. 474, 101 L.Ed.2d 420, 108 S.Ct. 2495 (1988) (holding that restrictions on picketing are subjected to careful scrutiny)"; NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909, 73 L.Ed.2d 1215, 1233, 102 S.Ct. 3409 (1982). Under current First Amendment analysis, the extent to which a defendant's rights of speech may be curtailed begins with identifying the forum used by the defendant to communicate his or her message. "It has been clearly established since time immemorial that city streets and sidewalks are public fora." Collins, supra, 110 F.3d at 1371. "No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora." Frisby, 487 U.S. at 481. "The 'public forum' doctrine holds that restrictions on speech should be subject to higher scrutiny when, all other things being equal, that speech occurs in areas playing a vital role in communication - such as in those places historically associated with first amendment activities, such as streets, sidewalks, and parks-especially because of how indispensable communication in these places is to people who lack access to more elaborate (and more costly) channels." Tribe, American Constitutional Law (2d ed. 1988) ßß12-24, p. 987. "In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. In these quintessential public forums, the government may not prohibit all communicative activity." Perry Ed. Assn. v. Perry Local Educator's Assn., 460 U.S. 37, 45, 74 L.Ed. 2d 794, 804-05, 103 S.Ct. 948 (1983). As the instant controversy involves the use of a public forum, the proper First Amendment analysis is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen, supra, 129 L.Ed.2d at 606. C. THERE IS NO SIGNIFICANT GOVERNMENT INTEREST AT STAKE THAT CANNOT BE PROTECTED WITH ONLY A NOMINAL RESTRICTION ON SPEECH As the threshold consideration, the court is directed to look to the government's purpose in regulating speech. Madsen, supra, L.Ed.2d at 606. In the present case, the only conceivable state interests are the State's interests in protecting individuals from harassment and the maintenance of public safety and order. With regard to the State's interests in protecting the individual, the purpose of Code of Civil Procedure ß 527.6 is to provide quick relief to harassment victims threatened with great or irreparable injury. Grant v. Clampitt, 56 Cal.App.4th 586 (App. 2 Dist. 1997). Section 527.6 is not designed to be used as a sword to silence critical speech. Evidencing such, Code of Civil Procedure ß527.6(b) provides that Constitutionally protected activity is excluded from its scope. Plaintiff also has no right to be free from public criticism. "No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court." Organization For a Better Austin v. Keefe, 402 U.S. 415, 419-20, 29 L.Ed.2d 1, 5, 91 S.Ct. 1575 (1971). In Organization For a Better Austin v. Keefe, members of an organization distributed leaflets in a residential community that were critical of respondent's real estate practices. The distribution of the leaflets was on all occasions conducted in a peaceful and orderly manner, did not cause any disruption of pedestrian or vehicular traffic, and did not precipitate any fights, disturbances or other breaches of the peace. The Court noted that the fact that "the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment." Id. at 420; see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 73 L.Ed.2d 1215, 1234 (1982) ("Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.") With regard to the State's interests in public safety and order - "if only because of the dangerous situation created by the interaction between cars and protesters", Schenck, supra 137 L.Ed.2d at 20, such concerns can be adequately addressed by the imposition of a nominal fixed buffer zone around the doorways, driveways, and driveway entrances as the one approved by the Schenck Court, 15 feet. Such a buffer zone would ensure that people and vehicles trying to enter or exit the clinic property or clinic parking lots can do so and ensure that Mr. Henson's message is of some consequence. D. ANY INJUNCTIVE RELIEF CANNOT BURDEN ANY MORE SPEECH THAN NECESSARY TO SERVE THE SIGNIFICANT GOVERNMENT INTEREST "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Freedman v. Maryland, 380 U.S. 51, 13 L.Ed.2d 649, 85 S.Ct. 734 (1965); Organization For a Better Austin, supra, 29 L.Ed.2d at 5; Southeastern Promotions, Ltd., supra, 43 L.Ed.2d 448. An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pinpointed objective permitted by constitutional mandate and the essential needs of the public order. The Order may not employ "means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." The Order must be tailored as precisely as possible to the exact needs of the case. Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 32 L.Ed.2d 325, 89 S.Ct. 347 (1968). An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so because of the group's past actions in the context of a specific dispute between the real parties. The party seeking the injunction asserts a violation of its rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public. Madsen, supra, 129 L.Ed.2d at 606. "Accordingly, when evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Id. at 608. 1. This Court Should Allow Only a Minimal Intrusion On Speech Rights In Madsen, supra, 129 L. Ed. 2d 593, following a trial court evidentiary hearing, the Florida Supreme Court issued an amended permanent injunction which prohibited abortion protesters, and all persons acting "in concert" with them, from (1) "congregating, picketing, patrolling, demonstrating, or entering", apart from specified exceptions, the public right-of-way "or private property" within a 36-foot buffer zone around the property line of the clinic; (2) physically approaching, within 300 feet of the clinic, any persons seeking clinic services, unless such person indicated a desire to communicate; and (3) picketing within 300 feet of the residences of clinic staff. Id. at 594. The Supreme Court held that under the standard of whether "the challenged provisions of the injunction burdened no more speech than necessary to serve a significant government interest", the provision establishing a 36-foot buffer zone around the clinic entrances and driveway was found constitutional, but the following provisions were unconstitutional: the 36-foot buffer zone as applied to "private property" on the back and side of the clinic, the prohibition against uninvited approaches of persons seeking the services of the clinic, and the prohibition against picketing within 300 feet of the residences of clinic staff. Id. at 594. The 36-foot fixed buffer zone from clinic driveways and entrances was affirmed in the context of the trial court's factual finding that the protestors "repeatedly had interfered with the free access of patients and staff" and that the "state court seems to have had few other options to protect access given the narrow confines around the clinic." Id. at 605. On balance of these factors, the Court held that the 36-foot buffer zone around the clinic entrances and driveway burdens no more speech than necessary to accomplish the governmental interest at stake - to protect access to the clinic and to facilitate the orderly flow of traffic. Id. at 611. With regard to the 300-foot buffer, the state court was attempting to prevent clinic patients and staff from being "stalked" or "shadowed" by the petitioners as they approached the clinic. However, "absent evidence that the protesters' speech is independently prescribable or is so infused with violence as to be indistinguishable from a threat of physical harm . . . as a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Id. at 613. In the present case, Mr. Henson will only agree to a nominal fixed buffer zone from the ingresses and egresses of the Scientology buildings to ensure the free flow of traffic. Mr. Henson does not believe that the 36-foot buffer applied in Madsen is necessary in this case because "unlike Madsen, there is no extraordinary record of pervasive lawlessness." Schenck, supra, 137 L.Ed.2d at 25. The 15-foot fixed buffer allowed in Schenck appears more appropriate for the current fact pattern. In Schenck, the District Court issued a preliminary injunction which, among other matters, generally banned demonstrating against the abortion clinic within (1) 15 feet of the clinic's doorways or doorway entrances, parking lot entrances, driveways, and driveway entrances (a "fixed buffer"); and (2) 15 feet of any person or vehicle seeking access or leaving the clinic (a "floating buffer"). Upon review, the Supreme Court upheld the fixed buffer, based on the factual record that this was the "only way to insure access to the clinics." However, the floating buffer were overturned as the floating buffer zone "burdened more speech than was necessary to serve the relevant governmental interests." 137 L.Ed.2d at 2. With respect to the 15-foot floating buffer zone, such zones were found to prevent the protestors "from communicating a message from a normal conversational distance or handing out leaflets on the public sidewalks." Id. at 10. Protesters on the public sidewalks who wish to communicate their message to a targeted individual and to remain as close as possible must move as the individual moves, maintaining 15 feet of separation. In Schenck, the lack of certainty as to how to remain in compliance with the floating buffer zone, in addition to leading to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits, also create the problem of certainty (i.e. the problems with its compliance required protesters to back peddle as patrons approach.) Id. at 10. These same concerns raised with regard to floating buffer zones raised in Schenck have reared their ugly head in the present case. Plaintiff's use of the floating buffer as a sword (e.g., both Mr. Barton and Mr. Hoden separately approaching Mr. Henson) has a chilling effect on Mr. Henson's speech rights and should be stricken immediately. 2. The Court Must Ensure That Alternative Means of Communication Are Maintained Courts have consistently insured that alternative means of communication exist. For example, in Portland Fem. Women's H. Ctr. v. Advocates For Life, 859 F.2d 681 (9th Cir. 1988), the injunction removed picketers from the 25 feet of sidewalk immediately in front of the clinic's doors only. Id. at 684, 686. However, picketers were free to use the area to either side of that strip in view of persons entering the clinic. Ibid. Again, in National Anti-Drug Coalition, Inc. v. Bolger, 737 F.2d 717 (7th Cir. 1984), the court upheld a federal regulation prohibiting solicitation on Postal Service property but concluded the regulation "provides more than ample alternative channels for the free expression of speech." Id. at 727. The court pointed out that the regulation allowed citizens who complied with state law to solicit contributions or sell literature on the municipal sidewalks adjacent to postal property. Ibid. These cases consistently provide the constitutional directive that requires ample alternative means of communication before speech in a public forum can be restricted. It has been widely recognized that ample alternative channels of communication do not exist if a speaker's target audience is altogether insulated from the speaker's message. See, e.g., Prisoners Union v. Department of Corrections, 135 Cal.App.3d 930, 936 (1982); Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319, 1323 (2d Cir. 1974) cert. den., 419 U.S. 838, 42 L.Ed.2d 64, 95 S.Ct. 66; Wolin v. Port of New York Authority, 392 F.2d 83, 90 (2d Cir. 1968) cert. den., 393 U.S. 940, 21 L.Ed.2d 275, 89 S.Ct. 290.). "It has been widely recognized that ample alternative channels of communication do not exist if a speaker's target audience is altogether insulated from the speaker's message." Chico Feminist Women's Health Center v. Scully, 208 Cal.App.3d 230, 246 (1989). That is the case here. By removing Mr. Henson from the street near the premises (a 300 or 500 yard ban), he will have no means of reaching his target audience - the brainwashed members of the Scientology cult or individuals who may be getting solicited for cult membership. Under Code of Civil Procedure ß527(a) it is incumbent on the Center to "show satisfactorily that sufficient grounds exist" for the issuance of the injunction. (See 6 Witkin, California Procedure, Provisional Remedies, ß307, pp. 260-261; see Casmalia Resources, Ltd. v. County of Santa Barbara, 195 Cal. App. 3d 827, 838 (1987) Since the availability of alternative means of communicating is indispensable to the injunctive relief sought by the Scientology through Plaintiff, it is Plaintiff's burden to show the available alternative. E. THE TEMPORARY RESTRAINING ORDER IS VAGUE AND OVERBROAD In Smith v. Silvey, 149 Cal.App.3d 400 (1983), plaintiff, owner of a mobile home park, filed a petition for an injunction against defendant, a former tenant. The pleadings alleged that defendant, while a tenant, became dissatisfied with plaintiff's operation of the park, made a number of complaints to governmental agencies over a period of years, brought a legal action to force reinspection of park improvements, and, unless enjoined, would continue to harass plaintiff by phone calls, letters, and personal visits to employees and officials of public agencies, and would attempt, by false statements and threats to those persons, to initiate unwarranted administrative action against plaintiff. The trial judge, on a showing by declarations, made an order (1) restraining defendant from initiating complaints with public agencies concerning plaintiffs operation of the park, and (2) restraining defendant from contacting the residents of the park. The Court of Appeal reversed. That part of the order restraining defendant from "contacting" residents of the Park was overbroad: it could be interpreted as prohibiting not only physically or verbally threatening acts, but also constitutionally protected speech. (149 Cal.App.3d 407.) Similarly, in the present case the wording of the injunction is also overbroad. As discussed above, any floating buffer zone, that can be used as a sword as has happened here, must be by definition vague and overbroad. F. PLAINTIFF'S CONDUCT ESTOPS APPLICATION OF THE EQUITABLE RELIEF HE SEEKS TO ENFORCE. Injunctive relief is an equitable remedy rarely granted to restrain speech or publication. Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial, 9:708. "As in other equitable proceedings, the plaintiff's wrongful conduct in the same transaction is a bar to equitable relief." Witkin, California Procedure (4th Edition) Provisional Remedies ß342. As discussed at great length at pages 7-12 of this Trial Brief, plaintiff and his alter ego, the Church of Scientology have routinely engaged Mr. Henson with "unclean hands." The most egregious acts being plaintiff's "shadowing" of Mr. Henson until he was able to capture him within the Unconstitutional floating buffer zone. Indeed, former Scientology attorney Joseph A. Yanny, Esq. was quoted in the May 6, 1991, Time magazine cover story 'Scientology, Thriving Cult of Greed and Power' that the church "has so subverted justice and the political system that it should be barred from seeking equity in any court." As such, plaintiff's conduct is a bar to any enforcement or issuance of Injunction chilling Mr. Henson's speech rights. VIII. CONCLUSION The evidence will establish that the material allegations plaintiff makes against Mr. Henson are lacking in both a factual and legal basis and that attorneys' fees should be awarded against plaintiff, and his attorney, pursuant to CCP ß527.b(i). DATED: February 10, 1998 MUSICK, PEELER & GARRETT LLP Graham E. Berry Peter S. Kravitz By: ____________________________ Graham E. Berry Attorneys for Defendant H. KEITH HENSON TABLE OF CONTENTS Page I. INTRODUCTION 2 II. SUMMARY OF ARGUMENT 4 III. FACTUAL AND PROCEDURAL BACKGROUND 6 IV. REV. HODEN IS THE ALTER EGO OF THE CHURCH OF SCIENTOLOGY AND ITS LEADER, DAVID MISCAVIGE 22 V. MR. HENSON HAS BEEN TARGETED FOR DESTRUCTION BY REV. HODEN AND THE ORGANIZATION HE REPRESENTS 25 VI. MR. HODEN AND THE SCIENTOLOGY ORGANIZATION ABUSE LITIGATION FOR THE PURPOSES OF HARASSMENT 32 VII. ARGUMENT 34 A. CONSTITUTIONALLY PROTECTED ACTIVITY CANNOT CONSTITUTE HARASSMENT. 34 B. MR. HENSON'S ACTIVITIES ARE CONSTITUTIONALLY PROTECTED 35 C. THERE IS NO SIGNIFICANT GOVERNMENT INTEREST AT STAKE THAT CANNOT BE PROTECTED WITH ONLY A NOMINAL RESTRICTION ON SPEECH 37 D. ANY INJUNCTIVE RELIEF CANNOT BURDEN ANY MORE SPEECH THAN NECESSARY TO SERVE THE SIGNIFICANT GOVERNMENT INTEREST 39 1. This Court Should Allow Only a Minimal Intrusion On Speech Rights 40 2. The Court Must Ensure That Alternative Means of Communication Are Maintained 44 E. THE TEMPORARY RESTRAINING ORDER IS VAGUE AND OVERBROAD 46 F. PLAINTIFF'S CONDUCT ESTOPS APPLICATION OF THE EQUITABLE RELIEF HE SEEKS TO ENFORCE. 47 VIII. CONCLUSION 48 TABLE OF AUTHORITIES Page(s) CASES Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (2d Cir. 1974) cert. den., 419 U.S. 838, 42 L.Ed.2d 64, 95 S.Ct. 66 45 Allard v. Church of Scientology, 58 Cal.App.3d 439 (1976) 27, 28 Annenberg v. Southern Cal. Dist. Council of Laborers, 38 Cal.App.3d 637 (1974) 44 Carey v. Brown, 447 U.S. 455, 65 L.Ed.2d 263, 100 S.Ct. 2286 (1980) 44 Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 32 L.Ed.2d 325, 89 S.Ct. 347 (1968) 39 Casmalia Resources, Ltd. v. County of Santa Barbara, 195 Cal.App.3d 827 (1987) 45 Chico Feminist Women's Health Center v. Scully, 208 Cal.App.3d 230 (1989) 45 Christofferson v. Church of Scientology, 57 Ore.App. 203, 644 P.2d 577 (1982) 26, 28, 30 Church of Scientology v. Armstrong, 232 Cal.App.3d 1060 (1991) 26, 27 Church of Scientology v. Commissioner of Internal Revenue, 83 U.S. Tax Ct. Rpt. 381 (1984) 26, 28 Church of Scientology of California v. Wollersheim, 42 Cal.App.4th 628; 49 Cal.Rptr. 2d 620 (1996) 3, 33 Church of Spiritual Technology v. United States, 26 Cl.Ct. 713, 718 (1992), aff'd., 991 F.2d 812 (Fed. Cir. 1993) 23 Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996) 4, 36 Diamond View, Ltd. v. Herz, 180 Cal.App.3d 612 (1986) 34 Freedman v. Maryland, 380 U.S. 51, 13 L.Ed.2d 649, 85 S.Ct. 734 (1965) 39 Frisby v. Schultz, 487 U.S. 474, 101 L.Ed.2d 420, 108 S.Ct. 2495 (1988) 4, 35, 36 Grant v. Clampitt, 56 Cal.App.4th 586 (App. 2 Dist. 1997) 37 Leydon v. Alexander, 212 Cal.App.3d 1 (1989) 34 Madsen v. Women's Health Center, Inc., 512 U.S. 753, 129 L.Ed.2d 593, 114 S.Ct. 2516 (1994) 4, 37, 41 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 73 L.Ed.2d 1215, 102 S.Ct. 3409 (1982) 35, 38 National Anti-Drug Coalition, Inc. v. Bolger, 737 F.2d 717 (7th Cir. 1984) 44 Organization For a Better Austin v. Keefe, 402 U.S. 415, 29 L.Ed.2d 1, 91 S.Ct. 1575 (1971) 5, 38, 39 Perry Ed. Assn. v. Perry Local Educator's Assn., 460 U.S. 37, 74 L.Ed.2d 794, 103 S.Ct. 948 (1983) 37 Portland Fem. Women's H. Ctr. v. Advocates For Life, 859 F.2d 681 (9th Cir. 1988) 5, 44 Prisoners Union v. Department of Corrections, 135 Cal.App.3d 930 (1982) 5, 45 Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979) aff'd. sub nom. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 64 L.Ed.2d 741, 100 S.Ct. 2035 (1980) 35 Schenck v. Pro-Choice Network of Western New York, 519 U.S. ___, 137 L.Ed.2d 1, 117 S.Ct. 855 (1997) 5, 37, 42-43 Schild v. Rubin, 232 Cal.App.3d 755 (1991) 34 Schraer v. Berkeley Property Owners Ass'n, 207 Cal.App.3d 719 (1989) 34 Smith v. Silvey, 149 Cal.App.3d 400 (1983) 46 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 43 L.Ed.2d 448, 95 S.Ct. 1239 (1975) 4, 35, 39 United States v. an Article or Device (Hubbard) Electrometer, et al. 333 F.Supp. 357 (D.D.C. 1971) 14 United States v. Hubbard, 474 F.Supp. 64 (1979) 2, 26, 30, 31 United States v. Katter, 840 F.2d 118 (1st Cir. 1988) 26, 27 Van Schaick v. Church of Scientology, 535 F.Supp. 1125 (U.S.D.C. Mass 1982) 26, 28 Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968) cert. den., 393 U.S. 940, 21 L.Ed.2d 275, 89 S.Ct. 290 45 Wollersheim v. Church of Scientology, 212 Cal.App.3d 872 (1989) 3, 24, 27, 31, 33 STATUTES Code of Civil Procedure ß425.16 3 ß527(a) 43 ß527.b(i) 47 ß527.6 37 ß527.6(a) 24 ß527.6(b) 4, 33, 34, 36 ß527.6(C) 22 ß527.6(d) 34 ß527.6(i) 2 17 U.S.C. ß107 14 18 U.S.C. ß371 30 42 U.S.C. ß1983 19 OTHER SUPPORTING AUTHORITIES Tribe, American Constitutional Law (2d ed. 1988) ßß12-24, p. 987 36 Weil & Brown, California Practice Guide, Civil Procedure Before Trial, 9:708 5, 35, 47 6 Witkin, California Procedure (4th ed.), Provisional Remedies 5, 46, 47 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is MUSICK, PEELER & GARRETT LLP, One Wilshire Boulevard, Suite 2000, Los Angeles, California, 90017. On February 10, 1998, I served the foregoing document described as TRIAL BRIEF OF DEFENDANT H. KEITH HENSON on interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Kendrick L. Moxon, Esq. Mason & Bartilson 6255 Sunset Blvd., Suite 2000 Los Angeles, California I delivered such envelope by hand to the offices of the addressee on February 11, 1998. Executed on February 11, 1998, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. ______________________________ Type or Print Name Signature Some of the factual basis for these characterizations and statements are set forth on pages 7 to 12 herein. Kenneth L. Moxon, Esq. was an unindicted co-conspirator in U.S. v. Hubbard. This case involved the largest ever-known infiltration, subversion and burglary of the United States Government. See generally, pg. 28:5-23. A Motion to Dismiss and Ex Parte Order Shortening Time on Hearing has been concurrently filed herewith. The service requirement ["shall"] is mandatory. See e.g. Church of Scientology of California v. Wollersheim, 42 Cal. App. 4th 628; 49 Cal. Rptr. 2d 620 (1996). In the fifth of six Church of Scientology lawsuits filed against critic Lawrence Wollersheim, the Court of Appeal affirmed the granting of defendants' special motion to strike, based on California anti- SLAPP suit (strategic lawsuits against public participation) statute (Code Civ. Proc., ß425.16). Subsequently, attorneys' fees in the approximate amount (plus interest) of $500,000 were awarded against the Church. See generally, pages 7 to 12 herein. See Exhibit A hereto. These orders were issued under Federal copyright and Colorado state trade secret legislation, normally used to seize counterfeit and bootleg goods being hawked by fly-by-night vendors. Church of Scientology v. Armstrong, Los Angeles Superior Court, Case No. C420153. See Request for Judicial Notice, Exhibit 1. Witnesses in other Scientology-related litigation have described this practice as "culling" -- to remove pages from books, documents from court files and newspapers from reading rooms, where those materials contain information critical of Scientology. This case arose out of the May 6, 1991 Time magazine cover story: "Scientology: Thriving Cult of Greed and Power." Indeed, L. Ron Hubbard secretly authored a "Manual on Brainwashing". Critics frequently accuse his "processes" as also involving hypnosis. On February 10, 1998, according to press wires, five houses of the Scientology sect were being raided in Munich, Germany. State attorneys were searching for evidence relating to a death, arson, the illegal practice of medicine and criminal libel. "To hell with this society. We are building a new one." L. Ron Hubbard. Scientology fraudulently claims it is compatible with Christianity and other religions. However, Hubbard said that he had been to heaven, discovered that "there was no man on the cross" and that he would return as the anti-christ. These are the very same methods that, through L. Ron Hubbard's study-tech books, Scientology's front group, Applied Scholastics, is requesting the Board of Education for the Los Angeles Unified School District to introduce to Los Angeles school students. This affidavit of Mary Tabayoyan is also available on the Internet. The organization considers the E-meter to be a religious artifact. L. Ron Hubbard found it in a London store in the late 1940's. It cost approximately two dollars. The E-meter is a primitive lie detector - a electropsychometer showing changes in a person's electrical resistance through movements of a needle upon a dial while the person holds onto two empty soup cans. However, the E-meter is also used in interrogations, or security checking (HCOB 23 Aug. 65), of scientologists. When several persons interrogate the scientologist using the e-meter, it is referred to as a "gang bang sec chec." The "church" now charges Scientologists between $3,000 and $30,000 for different versions of these primitive lie detectors, which are used in the church's central "religious" process. Former head of Religious Technology Center, Vicki Azneran, now an ex-Scientologist, has stated: "This is a criminal organization, day in and day out. It makes Jim and Tammy Baker look like kindergarten." Time Magazine, May 6, 1991, p.51. A "noisy investigation" is a Scientology officially sanctioned inquiry of a person's friends, clients and professional acquaintances. It's done in such a way as to undermine that person's reputation and destroy their relationships. The church also employed tactics set forth in "Attacks on Scientology" (e.g., "start feeding lurid, blood, sex, crime, actual evidence on the attackers to the press . . . make it rough") and "Black Propaganda" (black propaganda is essentially "false"). Hubbard used this "black magic" phrase to illustrate his orders to make severe examples of the destruction of critics so that others would be "shuddered into silence" about Scientology. Meanwhile, Scientology libeled and lambasted Mr. Henson in its publications such as "Freedom" Magazine. The latest Freedom magazine even has a photograph of Mr. Henson being handcuffed by the L.A.P.D., at the request of Scientology staffer and L.A.P.D. chaplain, Rev. Glenn Barton. Glenn Barton was one of approximately 50 Scientologists who filed lawsuits that eventually bankrupted the Cult Awareness Network, now a Scientology front group. Transcript, p. 30. Request For Judicial Notice, Exh. 2. In essence, Elliott Abelson, Esq., is a full-time attorney for the Church of Scientology's Office of Special Affairs, handling its litigation, intimidation and harassment activities. Formerly, he was an attorney for mafia members and pornographers. He is one of many "criminal defense" attorneys retained to represent the Church on a regular basis. Elliott Abelson, Esq., has made a motion in Henson IV and V do require Mr. Henson to submit to an H.I.V. test. Former LAPD officer Eugene M. Ingram is now Scientology's chief investigator and intimidator. He resigned from the L.A.P.D. whilst prostitution, drug and fire-arm charges were pending against him. Warrants for his arrest are now pending in three jurisdictions (impersonating a peace officer, stalking, etc.). Notwithstanding, he ensures L.A.P.D. cooperation with Scientology harassment activities despite former L.A.P.D. Chief Darryl Gates stating publicly that "it will be a cold day in hell before the LAPD cooperates with the Church of Scientology." Mr. Henson expects to be vindicated in Henson IV and V and to subsequently seek recompense from both the L.A.P.D. and the Church of Scientology, as joint defendants, under 42 U.S.C. ß1983. Significantly, Glenn Barton, who filed Henson III and arrested Keith Henson (Henson IV), is an L.A.P.D. Chaplain. Indeed, in another blatantly harassive move, Kendrick L. Moxon, Esq. is using this litigation to take the deposition of Mr. Henson. On Friday, February 6, 1998, Kendrick L. Moxon, Esq. used the closed bankruptcy case of Grady Ward (who Scientology has also sued) to also try to take Mr. Henson's deposition. Scientology frequently uses unrelated cases to take depositions of persons with no knowledge relevant to those cases, for the purpose of intelligence operations (Intel-Ops). The Los Angeles City Attorneys' office, blatantly working in association with Scientology attorney Elliott Abelson, Esq., has taken the position that so long as it considers there was even a technical violation of the Henson III restraining order, it will prosecute Mr. Henson to the full extent of the law, as demanded by the Scientology organization through Elliott Abelson, Esq. See Exhibit A hereto. "We can brainwash faster than the Russians." Hubbard Technical Bulletin (July 22, 1956). Neither the Hoden nor Moxon declarations were sworn under penalty of perjury. Thus, they were not affidavits within the meaning of CCP 527.6(C). For example, Kendrick Moxon stated that "personal service of the TRO regarding Keith Henson was not provided because Mr. Henson has demonstrated that he is violent and dangerous." Moxon Decl., 1. This is the very same Mr. Moxon who seeks to be in at least two depositions with Mr. Henson and whose co-counsel in other cases, Thomas Hogan, Esq., spends time alone with Mr. Henson without apparent problem or complaint. See also, Exhibit A hereto. The 500-yard restriction is unquestionably unconstitutional. See generally, page 37 herein. The structure seems parallel to the role of the Communist party in Russia and the Nazi party in Hitler's Germany. HCOPL 23 Dec. 65. In the twisted language of Scientology, this policy is called an Ethics Policy. It was issued by Hubbard on October 18, 1957. Scientology claims that it cancelled Fair Game. However, the cancellation did not apply to the handling of "Suppressives". This is an example of an "acceptable truth" in Scientology scripture. Scientology's "Fair Game" Doctrine has been recognized and discussed in a number of cases, including: Church of Scientology v. Armstrong, 232 Cal.App.3d 1060, 1067 (1991). See also, Wollersheim v. Church of Scientology, 212 Cal.App.3d 872, 888-891, (1989); Allard v. Church of Scientology, 58 Cal.App.3d 439, 443 n. 1, (1976); United States v. Katter, 840 F.2d 118, 125 (1st Cir. 1988); Van Schaick v. Church of Scientology, 535 F.Supp. 1125, 1131 n. 4 (U.S.D.C. Mass. 1982); Christofferson v. Church of Scientology, 57 Ore.App. 203, 644 P.2d 577, 590-92 (1982). Some of Scientology's other illegal activities are described in Church of Scientology v. Commissioner of Internal Revenue, 83 U.S. Tax. Ct. Rpt. 381, 429-42 (1984); United States v. Hubbard, 474 F. Supp. 64, 70-77, 79, 83-84 (1979). The concurrently filed appendix of authorities contains a copy of the non-California cited authorities. Significantly, the Church of Scientology, through its various attorneys, stipulated (or agreed) to the statements in the sentencing memorandum. The stipulation was entered into as part of a deal to avoid the indictment of L. Ron Hubbard himself and the disclosure of even more damaging revelations regarding the Church's clandestine transactional commercial activities using information stolen from the United States government and later intercepted by the C.I.A. OSA replaced the Guardians' Office. OSA is the intelligence and special operations arm of the Scientology organization. It is reputed to have a world wide intelligence operation rivaling the intelligence operations of many nations. Only natural persons may seek relief under Section 527.6(b). Diamond View, Ltd. v. Herz, 180 Cal.App.3d 612, 618-19 (1986). As plaintiff is operating as the alter ego of the Church of Scientology, there is no standing to assert the instant claim. Injunctive relief is rarely granted to restrain speech or publication. Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial, 9:708. The Fourteenth Amendment has made applicable to the States the First Amendment's guarantee of free speech. Southeastern Promotions, Ltd., supra, L.Ed.2d 448. Picketing is an activity also implicating free speech rights pursuant to article I, sections 2 and 3 of the California Constitution. Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, (1979) aff'd. sub nom. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 64 L.Ed.2d 741, 100 S.Ct. 2035 (1980). "The designation 'public forum' thus serves as shorthand for the recognition that a particular context represents an important channel of communication in the system of free expression." Tribe, American Constitutional Law (2d ed. 1988) ßß12-24, p. 987. The differences between injunctions and general ordinances "require a somewhat more stringent application of general First Amendment principles in this context. Ibid. "the nature of a place, 'the patter of its normal activities, dictate the kinds of regulations . . . that are reasonable.'" Madsen, at 612. Because any kind of fixed or floating buffer zone is merely an invitation for Scientology abuse, Mr. Henson will agree not to block, other than walk-by, the entrances to Scientology property. The purported affidavit of Kendrick L. Moxon, Esq., attaches various Internet postings, to chat groups, which are alleged to provide a record of pervasive lawlessness. However, it is all mere 'hyperbole' which is also constitutionally protected. The Court again noted that "speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum." Id. at 10. Since the buffer zone floats, protesters on the public sidewalks who wish (i) to communicate their message to an incoming or outgoing patient or clinic employee and (ii) to remain as close as possible to this individual, must move as the individual moves, maintaining 15 feet of separation. This means that protesters who wish to walk alongside an individual entering or leaving the clinic are pushed into the street, unless the individual walks a straight line on the outer edges of the sidewalk. Id. at 22. Because any kind of fixed or floating buffer zone is merely an invitation for Scientology abuse, Mr. Henson will agree not to block, other than walk-by, the entrances to Scientology property. See also Annenberg v. Southern Cal. Dist. Council of Laborers, 38 Cal. App. 3d 637, 648 (1974) (holding that the trial court erred in enjoining all peaceful picketing in front of a private residence); Carey v. Brown, 447 U.S. 455, 470, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980) (emphasizing that the Court was not precluding all restrictions of picketing in residential neighborhoods).
[ incredible that this abomination could be considered a charitable
activity by the Internal Revenue Service...... Is this America?
or has America become sumberged in a sea of lies...]