UNITED STATES of America, Libelant, v. An ARTICLE OR DEVICE

. . . "HUBBARD ELECTROMETER" or "Hubbard E-Meter," etc.,

Founding Church of Scientology et al., Claimants

No. D.C. 1-63

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

333 F. Supp. 357; 1971 U.S. Dist. LEXIS 12206

July 30, 1971





CORE TERMS: religious, church, auditing, scientific, dianetic, illness, secular, religion, cure, claimant, intelligence, First Amendment, non-religious, labeling, psycho-somatic, disease, misbranding, seized, distributed, processing, counseling, condemned, radiation, exact, misrepresentation, adherents, pamphlet, purport, harmless, bona fide

JUDGES: [**1]

Gesell, District Judge.

OPINIONBY: GESELL

OPINION: [*358] MEMORANDUM OPINION

GESELL, District Judge.

This is an action by the United States seeking nationwide condemnation of a gadget known as an E-meter and related writings, by libel of information under the Food, Drug & Cosmetic Act, 21 U.S.C. 301 et seq. The E-meter is claimed to be a device within the meaning of the [*359] Act. Misbranding and lack of adequate directions for use are alleged. Claimants are the Founding Church of Scientology and various individuals.

This suit was originally tried to a jury before another Judge of this Court and the conviction there obtained was reversed on appeal after a long trial because of certain First Amendment problems suggested by the instructions and evidentiary rulings. Founding Church of Scientology v. United States, 133 U.S. App. D.C. 229, 409 F.2d 1146 (1969). The present trial was conducted to the Court without a jury after a series of pretrials which narrowed the issues. The record consists of the transcript and exhibits taken at the prior trial with some additions and deletions, plus the testimony of one additional witness who testified further on religious aspects of [**2] the case. Many of the background facts are set forth in the opinion of the Court of Appeals and since they were in the main not contested at the second trial they need not all be repeated here.

The E-meter is essentially a simple galvanometer using two tin cans as electrodes. It is crude, battery-powered, and designed to measure electrical skin resistance. It is completely harmless and ineffective in itself. A person using the meter for treatment holds the tin cans in his hands during an interview with the operator who is known as an auditor and who purports to read indicators from the galvanometer needle as it notes reactions to questions. Scientology is a so-called exact science which promotes auditing. When practiced by trained or untrained persons, Scientology auditing is claimed to improve the health, intelligence, ability, behavior, skill and appearance of the individual treated.

L. Ron Hubbard, writing in a science fiction magazine in the 1940's, first advanced the extravagant false claims that various physical and mental illnesses could be cured by auditing. He played a major part in developing Scientology. Thereafter, commencing in the early 1950's numerous Scientology [**3] books and pamphlets were written explaining how various illnesses can be and had been cured through auditing. These materials were widely distributed. Hubbard, who wrote much of the material, is a facile, prolific author and his quackery flourished throughout the United States and in various parts of the world. He was supported by other pamphleteers and adherents who also promoted the practice of Scientology and touted its alleged benefits.

Hubbard and his fellow Scientologists developed the notion of using an E-meter to aid auditing. Substantial fees were charged for the meter and for auditing sessions using the meter. They repeatedly and explicitly represented that such auditing effectuated cures of many physical and mental illnesses. An individual processed with the aid of the E-meter was said to reach the intended goal of "clear" and was led to believe there was reliable scientific proof that once cleared many, indeed most illnesses would automatically be cured. Auditing was guaranteed to be successful. All this was and is false -- in short, a fraud. Contrary to representations made, there is absolutely no scientific or medical basis in fact for the claimed cures attributed [**4] to E-meter auditing.

Unfortunately the Government did not move to stop the practice of Scientology and a related "science" known as Dianetics when these activities first appeared and were gaining public acceptance. Had it done so, this tedious litigation would not have been necessary. The Government did not sue to condemn the E-meter until the early 1960's, by which time a religious cult known as the Founding Church of Scientology had appeared. This religion, formally organized in 1955, existed side-by-side with the secular practice of Scientology. Its adherents embrace many of Hubbard's teachings and widely disseminate his writings. The Church purports to believe that many illnesses may be cured through E-meter auditing by its trained ministers through an appeal to the spirit or soul of a man. As a matter of formal doctrine, the Church professes to have [*360] abandoned any contention that there is a scientific basis for claiming cures resulting from E-meter use. The Church, however, continued widely to circulate Scientology literature such as Government's exhibits 16 and 31, which hold out false scientific and medical promises of certain cure for many types of illnesses. [**5] n1

n1 The issues have been tried as of January, 1963, the date of the libel. Thus the findings as to Scientology literature and positions of the claimants do not necessarily reflect current conditions.

In 1962, when the Government seized the E-meters involved in the present controversy, it took them from the premises of the Church, confiscating some E-meters which were actually then being used primarily by ministers of the Church to audit adherents or to train auditors for subsequent church activity. Thus the Government put itself in the delicate position of moving against not only secular uses of the E-meter but other uses purporting to be religious, and the Court accordingly confronts the necessity of reconciling the requirements of the Food, Drug & Cosmetic Act prohibiting misbranding and the requirements of the First Amendment protecting religious institutions and religious beliefs from governmental interference under the First Amendment.

The Court of Appeals has ruled that the evidence at the prior trial [**6] and reintroduced at this trial established prima facie that the Founding Church of Scientology, the principal claimant here, is a bona fide religion and that the auditing practice of Scientology and accounts of it are religious doctrine. No evidence to the contrary was offered by the Government on the second trial. Accordingly, for purposes of this particular case only, claimant must be deemed to have met its burden of establishing First Amendment standing for whatever significance the religious practice of Scientology may have on the outcome of this particular litigation.

The Government considers the First Amendment issue wholly irrelevant and extraneous. Claimant, on the other hand, relies heavily on the religious claim. The positions of the parties are so completely different that neither even deigns to recognize any merit in the other. The briefs and findings proposed by each side pass like two ships at night with not even a port or starboard light showing. Yet the truth is not as absolute as either party contends. Religious aspects of this controversy, once tactically conceded, cannot be ignored. On the other hand, it is a gross exaggeration to insist that the energetic, [**7] persistent solicitation of E-meter-audited cures for a fee has all occurred in a spiritual setting without use of secular appeals and false scientific promises made in a wholly non-religious context.

Turning to the precise issues presented, it must first be determined whether the E-meter is a device within the meaning of the Act (21 U.S.C. 321 (h)). It obviously meets the statutory definition of an apparatus or contrivance intended for use in the diagnosis, cure, mitigation or treatment of disease. Moreover, it is held out as such in the constant promotion of E-meter auditing, a process designed to effectuate cures of mental and physical illnesses. Claimants contend that the E-meter is harmless in itself, cures nothing by itself, and therefore cannot be a device since those who use it appreciate its ineffectiveness and cannot therefore have the requisite intent. This begs the question. The device plays a key part in both the secular and religious auditing process which is used and intended to be used in the cure, mitigation or treatment of disease. It need not be the only agent in an allegedly curative process to be a device within the definition. The E-meter is a device [**8] within the meaning of the Act.

Over 100 E-meters were seized. At the same time the Government seized some 200 separate pieces of literature containing approximately 20,000 pages, much of which it now contends demonstrates misbranding of the device by misrepresentation [*361] and lack of adequate directions for use under 21 U.S.C. 334 and 352.

The writings seized were located in a bookstore, or "Distribution Center," separately incorporated but owned by the Church, with offices in the basement of the Church premises. n2 The Center advertised and sold for profit a long list of Scientology, Dianetics and other writings concerned with auditing in book, pamphlet, newsletter and other forms.

n2 Claimants urge that this search and seizure was overly broad and contravenes the Fourth Amendment but this issue was resolved against this position by the Court of Appeals and need not be again considered.

A few of these writings are primarily religious in nature. Others contain medical or scientific claims in a [**9] partially religious context. Most of the material, however, explains aspects of Scientology and Dianetics in purely matter-of-fact medical and scientific terms without any apparent religious reference. While the Court of Appeals concluded that literature setting forth the theory of auditing, including the claims for curative efficacy contained therein, is religious doctrine and hence as a matter of law not labeling, it recognized this was so only if the person charged with misrepresentation explicitly held himself out as making religious as opposed to medical, scientific or otherwise secular claims. The bulk of the material is replete with false medical and scientific claims devoid of any religious overlay or reference. Two books which the Church especially recommended to interested participants, "Scientology: The Fundamentals of Thought" (Government Ex. 31), and "The Problems of Work" (Government Ex. 103), are typical examples of books containing false scientific non-religious claims. Examples of such claims found in these and a few other representative documents used in various direct and indirect ways to promote E-meter auditing are listed in Appendix A.

Thus the literature [**10] has all the necessary elements of labeling specified in 21 U.S.C. 321(m) since it "accompanied" the device within the meaning of the Act. See Kordel v. United States, 335 U.S. 345, 351, 69 S. Ct. 106, 93 L. Ed. 52 (1948).

Having in mind a jury trial, the Court of Appeals contemplated an item-by-item analysis of the writings alleged to be labeling in order to remove from jury inspection purely religious appeals, reserving a presentation of the other literature for determination under instructions differentiating the secular from the religious. This exercise is, of course, unnecessary on a trial to the Court. A single false scientific nonreligious label claim is sufficient to support condemnation, and in fact there are many. Moreover, differentiation of individual documents as a practical matter is of little value when it comes to an overall resolution of the controversy. Realistically, the writings cannot only be viewed separately. They are available and distributed in infinite combinations. Whole books are involved which often ramble, contradict and are constructed to make diversified appeals that are basically secular and directed to varying temperaments, ages and attitudes [**11] of potential readers. Much of the material is skillful propaganda designed to make Scientology and E-meter auditing attractive in many varied, often inconsistent wrappings.

The Food and Drug laws are designed to protect the public. The literature disseminated by various Scientology groups is written for popular lay consumption. The words and thrust of the writings must accordingly be so considered. Claims as to the efficacy of the E-meter must be read to mean what they clearly purport to say to ordinary lay readers. The Court notes that the task of determining whether a claim or representation is religious or non-religious, or whether a religious claim is genuine or merely "tacked on" to basically pseudoscientific claims, is hardly less troublesome [*362] than the task of determining whether a religious claim is true or false. The Court has attempted to resolve the difficulty thus presented by the Court of Appeals by refusing to consider the truth or falsity of any claim which, in the understanding of the average reader, could be construed as resting on religious faith. All doubts on this issue have been resolved in favor of the Claimants. But the overall effect of the [**12] many separate writings and the writings as a whole cannot be seriously questioned. Whether the documents are viewed singly or as a whole, the proof showed that many false scientific claims permeate the writings and that these are not even inferentially held out as religious, either in their sponsorship or context.

It should be kept in mind at all times that the Church is but one of several groups engaged in the promotion of Scientology; others include the Hubbard Guidance Center, that offers non-religious processing and auditing to the public for a fee; Hubbard Association of Scientologists International (HASI), a world-wide organization promoting Scientology among members of the organization who receive a monthly magazine ("Ability") and other benefits; and the Distribution Center, Inc., already mentioned. The combined effort of all these activities is to persuade the public to come forward for auditing with an E-meter for a fee, and while some may be motivated or attracted by religious considerations, others who audit or are audited are not. n3

n3 Ability, issue 14 (Ex. 9L, p. 14) states:

Scientology is going all out as a religion. The religious aspect is highly functional, very true and is very -- much -- more successful * * * The public expects to have ministers around. That's us folks.

* * *

* * * If you don't like religion for heaven's sakes call yourself a Dianeticist.

[**13]

An individual was not required to be either a Church member or a Scientologist to be audited at cost of $500 for 25 hours, with state of "clear" guaranteed for $5,000. The E-meter was available for sale to the public for a fee of $125. The benefits of auditing were extravagantly advertised. At the time this action was commenced, E-meters perhaps as many as one-third the total supply -- were being used by members of the public without any religious control or supervision. n4 The writings were distributed to accompany the E-meter and intended to promote its use by members of the public; they were used by laymen for secular purposes; individually a great many contain false unqualified scientific claims without even a religious overlay or suggestion. Viewed as a whole the thrust of the writings is secular, not religious. The writings are labeling within the meaning of the Act. Thus, the E-meter is misbranded and its secular use must be condemned along with secular use of the offensive literature as labeling. The misbranding results not only from misrepresentation by reason of 21 U.S.C. 352(a) but because the labeling failed to bear adequate directions for use required by 21 [**14] U.S.C. 352(f)(1). n5

n4 At the time of this action at least half the E-meters in use in the United States were being used by non-ordained lay personnel. Operators franchised by the Church who may or may not subscribe to its doctrines, provide secular auditing, retaining for themselves ninety percent of the fees collected and purport to send only ten percent to the Church. Claimants were unable to show that these franchised services were in any real sense religious missionary work in the sense that auditing was done by members of this group on a religious basis.

n5 Accompanying labeling must specify the conditions for which the device is intended and sufficient information under which the device can be used safely and effectively for the purposes for which it is intended to be used. United States v. Shock, 379 F.2d 29 (8th Cir. 1967). Adequate directions are literally lacking here. It is impossible to write adequate directions for use of the E-meter by laymen. Cf. United States v. Ellis Research Laboratories, 300 F.2d 550 (7th Cir. 1962). The Church of Scientology of California v. Richardson, 437 F.2d 214 (9th Cir. 1971).

[**15]

[*363] On the basis of these findings, the Government is entitled to some relief. It is only when the Court confronts the question of appropriate remedy that serious difficulties arise.

An initial issue presented is whether the normal Food and Drug remedies, 21 U.S.C. 334, may under any circumstances be applied to the device when used by some as an "artifact" of a church. A law designed to afford protection to the public against genuine evils may be used to regulate the activities of religion only if the regulation involved is the narrowest possible remedy to achieve the legitimate non-religious end, which in this case is only to protect the public against misrepresentation since the E-meter is harmless in itself. See Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963); Barnett v. Rodgers, 133 U.S.App. D.C. 296, 410 F.2d 995 (1969).

The Government argues that once a violation of the Act is established, the devices seized may be treated the same as any other misbranded device. Since the bona fides of the religion remains unquestioned on this record, the Government's position is an oversimplification. Here is a pseudo-science that has been adopted [**16] and adapted for religious purposes. The literature held to make false representations, while in itself nonreligious, nevertheless comprises for some, part of the writings, teachings, and history of a religion. Those who belong to the Church and accept its beliefs assert that many illnesses may be alleviated by religious counseling designed to free the spirit of encumbrances. They find in the rationale and procedures of Scientology satisfactory early explanations and techniques to implement what is essentially faith healing by use of the E-meter. Thus they purport to read the purely secular writings of Scientology with semantic interpretations fostered by their evolving religious doctrine. Purely scientific statements are given a theological slant by the initiated and the occasional theological indications in the writings are given enthusiastic exaggeration. What the layman reads as straight science fiction becomes to the believer a bit of early imperfect scripture. The result of all this is that what may appear to the layman as a factual scientific representation (clearly false) is not necessarily this at all when read by one who has embraced the doctrine of the Church.

Accordingly, [**17] the Government's protestations that it is not interfering with religious practice when it seeks to condemn the E-meter and related literature must be qualified. The Church is a religious institution protected by the First Amendment. The E-meter is used by its ministers as part of the ritual and practice of the Church. Serious interference indeed results if the Church is entirely prohibited from using the E-meter by condemnation or if the Court orders the Food and Drug Administration to oversee a general rewriting of all the writings the Church purveys. Where there is a belief in a scientific fraud there is nonetheless an interference with the religion that entertains that belief if its writings are censored or suppressed. Similarly, if a church uses a machine harmless in itself to aid its ministers in communicating with adherents, the destruction of that machine intrudes on religion. The dilemma cannot be resolved by attempting to isolate purely false scientific claims from claims that have sufficient religious content to be outside the Food and Drug laws. There is a religious substance to everything when seen with the eyes of the believer.

For these reasons, the Church may [**18] not be wholly prevented from practicing its faith or from seeking new adherents. A decree of condemnation which ordered destruction of the device, with its necessary res judicata effect as to all E-meters in the country, would achieve this effect. On the other hand, a condemnation decree which allowed the FDA to reform the writings as is done in the usual commercial drug misbranding case would give a Government agency excessive [*364] power to interfere with the exercise of religion, fostering that Government "entanglement" with religion which has been recently condemned by the Supreme Court. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). Neither of these possible remedies is acceptable to the Court.

Had the Government proceeded in equity to enjoin specific non-religious practices or representations which it believed to violate the Act, the Court could have curtailed the purely commercial use of the E-meter while leaving the Church free to practice its belief under limited circumstances. An action in rem, however, acts only upon the device, and the Court cannot fashion a remedy in libel which distinguishes with particularity [**19] between religious and non-religious uses. An equity proceeding is clearly the most satisfactory remedy in this and any similar future cases, and may in some instances be the only remedy which the Government may seek consistent with the First Amendment.

Dismissal of this libel after eight years of legal proceedings is not justified on the grounds that the Government has not used the most appropriate remedy. A decree of condemnation will therefore be entered, but the Church and others who base their use upon religious belief will be allowed to continue auditing practices upon specified conditions which allow the Food and Drug Administration as little discretion as possible to interfere in future activities of the religion. Pursuant to 21 U.S.C. 334 (d), upon the findings and conclusions contained in this Memorandum Opinion, relief in the following form shall be set out in an implementing order:

All E-meters are condemned together with all writings seized. The Government shall have its costs.

The device and writings condemned shall be returned to the owners, upon execution of an appropriate bond, to be destroyed or brought into compliance with the Food, Drug & Cosmetic Act. [**20] An E-meter shall be deemed to comply with the Act if and only if it is used, sold or distributed upon specified conditions.

The device may be used or sold or distributed only for use in bona fide religious counseling. No user, purchaser or distributee (other than the Founding Church of Scientology or an ordained practicing minister of the Church) shall be considered engaged in bona fide religious counseling unless and until such user, purchaser or distributee has filed an affidavit with the Secretary of the Food and Drug Administration stating the basis on which a claim of bona fide religious counseling is made, together with an undertaking to comply with all conditions of the judgment so long as the E-meter is used.

The device should bear a prominent, clearly visible notice warning that any person using it for auditing or counseling of any kind is forbidden by law to represent that there is any medical or scientific basis for believing or asserting that the device is useful in the diagnosis, treatment or prevention of any disease. It should be noted in the warning that the device has been condemned by a United States District Court for misrepresentation and misbranding under [**21] the Food and Drug laws, that use is permitted only as part of religious activity, and that the E-meter is not medically or scientifically capable of improving the health or bodily functions of anyone.

Each user, purchaser, and distributee of the E-meter shall sign a written statement that he has read such warning and understands its contents and such statements shall be preserved.

Any and all literature which refers to the E-meter or to auditing, including advertisements, distributed directly or indirectly by the seller or distributor of the E-meter or by anyone utilizing or promoting the use of the E-meter, should bear a prominent notice printed in or permanently affixed to each item or such literature, stating that the device known as a Hubbard Electrometer, or E-meter, used in auditing, has been condemned by [*365] a United States District Court on the grounds that the literature of Dianetics and Scientology contains false and misleading claims of a medical or scientific nature and that the E-meter has no proven usefulness in the diagnosis, treatment or prevention of any disease, nor is it medically or scientifically capable of improving any bodily function. Where the notice [**22] is printed in or affixed to literature, it should appear either on the outside front cover or on the title page in letters no smaller than 11-point type.

The E-meter should not be sold to any person or used in any counseling of any person except pursuant to a written contract, signed by the purchaser or counselee, which includes, among other things, a prominent notification as specified immediately above.

The effect of this judgment will be to eliminate the E-meter as far as further secular use by Scientologists or others is concerned. E-meter auditing will be permitted only in a religious setting subject to placing explicit warning disclaimers on the meter itself and on all labeling. The Government has requested an opportunity to show that complete forfeiture and destruction of the E-meter is required, but the Court has concluded that however desirable this may be in the public interest, the Court is without power to so order in view of the protections afforded claimant and others similarly situated under the First Amendment.

The foregoing shall constitute the Court's findings of fact and conclusions of law. The parties are directed to submit an appropriate form of order providing [**23] the relief indicated on or before September 1, 1971.

APPENDIX A

Representative Documents Found to be Non-Religious, and Samples of False or Misleading Claims Found Therein

1. Eight-page pamphlet, entitled "What is Scientology?"

(Government Exhibit No. 16)

"Scientology is today the only successfully validated psychotherapy in the world. Tens of thousands of completely documented cases exist in the files of the Hubbard Association of Scientologists International.

"The first science to put the cost of psycho-therapy within the range of any person's pocketbook. A complete Freudian analysis costs $8000 to $15,000. Better results can be achieved in Scientology for $25 and, on a group basis for a few dollars."

"The first science to make whole classes of backward children averagely bright using only drills the teacher can do a few minutes each day.

"The first science to determine the basic cause of disease.

"The first science to contain exact technology to routinely alleviate physical illnesses with complete predictable success.

"The first science of mind to prove conclusively that physical illness can stem from mental disturbance, a fact which Freud held only as a theory, [**24] and only seldom demonstrated.

2. Twenty-four page pamphlet, entitled "Ability Issue 71: Being Clear and How to Get There," by L. Ron Hubbard

(Government Exhibit No. 9BA)

"Scientologically, the optimum individual is called the clear. One will hear much of that word, both as a noun and a verb, so it is well to spend time here at the outset setting forth exactly what can be called a clear, the goal of Scientology processing.

"A clear can be tested for any and all psychoses, neuroses, compulsions and repressions (all aberrations) and can be examined for any autogenic (self-generated) diseases referred to as psychosomatic ills. These tests confirm the clear to be entirely without such ills or aberrations. Additional tests of his intelligence indicate it to be high above the current norm. Observation of [*366] his activity demonstrates that he pursues existence with vigor and satisfaction.

"Further, these results can be obtained on a comparative basis. A neurotic individual, possessed also of psychosomatic ills, can be tested for those aberrations and illnesses demonstrating that they exist. He can then be given Scientology processing to the end of clearing [**25] these neuroses and ills. Finally, he can be examined, with the above results. This, in passing, is an experiment which has been performed many times with invariable results. It is a matter of laboratory test that all individuals who have organically complete nervous systems respond in this fashion to Scientology clearing."

(3) Hard back book, 452 pages, entitled "Dianetics: The Modern Science of Mental Health," by L. Ron Hubbard.

"Simple though it is, dianetics does and is these things:

1. It is an organized science of thought built on definite axioms: statements of natural laws on the order of those of the physical sciences.

2. It contains a therapeutic technique with which can be treated all inorganic mental ills and all organic psycho-somatic ills, with assurance of complete cure in unselected cases.

3. It produces a condition of ability and rationality for Man well in advance of the current norm, enhancing rather than destroying his vigor and personality.

4. Dianetics gives a complete insight into the full potentialities of the mind, discovering them to be well in excess of past supposition.

5. The basic nature of man is discovered in dianetics rather than hazarded or [**26] postulated, since that basic nature can be brought into action in any individual completely. And that basic nature is discovered to be good.

6. The single source of mental derangement is discovered and demonstrated, on a clinical or laboratory basis, by dianetics.

7. The extent, storage capacity and recallability of the human memory is finally established by dianetics.

8. The full recording abilities of the mind are discovered by dianetics with the conclusion that they are quite dissimilar to former suppositions.

9. Dianetics brings forth the nongerm theory of disease, complementing bio-chemistry and Pasteur's work on the germ theory to embrace the field.

10. With dianetics ends the "necessity" of destroying the brain by shock or surgery to effect "tractability" in mental patients and "adjust" them.

11. A workable explanation of the physiological effects of drugs and endocrine substances exists in dianetics and many problems posed by endocrinology are answered."

"Chapter V

PSYCHO-SOMATIC ILLNESS"

"Psycho-somatic illnesses are those which have a mental origin but which are nevertheless organic. Despite the fact that there existed no precise scientific proof of this before [**27] dianetics, an opinion as to their existence has been strong since the days of Greece, and in recent times various drug preparations have been concocted and sold which were supposed to overcome these sicknesses. Some success was experienced, sufficient to warrant a great deal of work on the part of researchers. Peptic ulcers, for instance, have yielded to persuasion and environmental change. A recent drug called ACTH has had astonishing but wildly unpredictable results. Allergies have been found to yield more or less to things which depressed histamine in the body.

"The problem of psycho-somatic illness is entirely embraced by dianetics, and by dianetic technique such illness has been eradicated entirely in every case."

"On the physical therapy level anything as violent as surgery or exodor tistry in the psycho-somatic plane i utter barbarism in the light of dianetics. "Toothache" is normally psycho-somatic. [*367] Organic illnesses enough to fill several catalogues are psycho-somatic. No recourse to surgery of any kind should be had until it is certain that the ailment is not psycho-somatic or that the illness will not diminish by itself if the potency of the reactive [**28] mind is reduced. * *"

(4) Twelve-page pamphlet, entitled "Ability Issue 72"

(Government Exhibit No. 114)

[SEE ILLUSTRATION IN ORIGINAL]

[*368] (5) Sixty-four page booklet, entitled "Scientology: The Fundamentals of Thought," by L. Ron Hubbard. Subtitle: "The Basic Book of the Theory & Practice of Scientology for Beginners"

(Government Exhibit No. 31)

Scientology is that branch of psychology which treats of (embraces) human ability. It is an extension of DIANETICS * * * Scientology is actually a new but very basic psychology in the most exact meaning of the word. It can and does change behaviour and intelligence and it can and does assist people to study life.

Scientology, used by the trained and untrained person improves the health, intelligence, ability, behaviour, skill and appearance of people.

It is a precise and exact science, designed for an age of exact sciences.

Scientology is employed by an Auditor (one who listens and commands) as a set of drills (exercises, processes) upon the individual, and small or large groups. It is also employed as an educational (teaching) subject. It has been found that persons can be processed (drilled) in Scientology with [**29] Scientology exercises and can be made well of many, many illnesses and can become brighter, more alert and more competent. BUT if they are only processed they have a tendency to be overwhelmed or startled and although they may be brighter and more competent they are still held down by an ignorance of life. Therefore it is far better to teach AND process (audit, drill) a person than only to process him. In other words the best use of Scientology is through processing and education in Scientology. In this way there is no imbalance. It is interesting that people only need to study Scientology to have some small rise in their own intelligence, behaviour and competence. The study itself is therapeutic (good medicine) by actual testing.

Tens of thousands of case histories (reports on patients, individual records) all sworn to (attested before public officials) are in the possession of the organizations of Scientology. No other subject on earth except physics and chemistry has had such grueling testing (proofs, exact findings). Scientology in the hands of an expert (Auditor) can cure some 70% of Man's illnesses (sicknesses). Scientology is used by some of the largest companies (business [**30] organizations) on Earth. It is valid. It has been tested. It is the only thoroughly tested system of improving human relations, intelligence and character and is the only one which does.

(6) Seventy-one page booklet, entitled "The Problems of Work," by L. Ron Hubbard.

(Government Exhibit No. 103)

"Scientology is the first American science of Man. It is the technical knowhow of the American applied to himself. In contrast to the metaphysical thinking of Europe that has formed the basis of our concepts of ourselves, Scientology is a technology as factual and as exact as the technologies that base the development of the atom bomb . . . and it has a like source -- the first class in nuclear physics, taught at George Washington University.

"Scientology can and does change human behavior for the better. It puts the individual under the control of himself -- where he belongs. Scientology can and does increase human intelligence. By the most exact tests known it has been proven that Scientology can greatly increase intelligence in an individual. And Scientology can do other things. It can reduce reaction time and it can pull the years off one's appearance. But there [*369] [**31] is no intention here to give a list of all it can do. It is a science of life and it works. It adequately handles the basic rules of life and it brings order into chaos.

"The mysteries of life are not today, with Scientology, very mysterious. Mystery is not a needful ingredient. Only the very aberrated man desires to have vast secrets held away from him. Scientology has slashed through many of the complexities which have been erected for men and has bared the core of these problems. Scientology for the first time in man's history can predictably raise intelligence, increase ability, bring about a return of the ability to play a game, and permits man to escape from the dwindling spiral of his own disabilities. Therefore work itself can become a game, a pleasant and happy thing.:

(7) Hard cover book, 112 pages, entitled "All About Radiation, by a Nuclear Physicist and a Medical Doctor"

(Government Exhibit No. 116)

We care very little about whether there is radiation in the atmosphere because a person who is in excellent physical condition does not particularly suffer mentally and thus physically from the effects of radiation. When a person is at a level where his general physical [**32] health is good, then this worry is not capable of depressing him into ill-health. Radiation is more of a mental than a physical problem and Scientology handles that."

"The reaction to radiation in persons who have been given Scientology processing is by actual tests much lower than those who have not received it. We have conducted many experiments in that direction. But even we would find it very difficult and even antipathetic to get everybody together and give them the amount of group processing needed as safeguard against radiation."

The CHURCH OF SCIENTOLOGY OF CALIFORNIA,

Plaintiff-Appellant, v. Elliot RICHARDSON * et al.,



Defendants-Appellees * Elliot Richardson has been

substituted for his predecessor in office, Robert H. Finch,



pursuant to Fed.R.Civ.P. 25(d) (1).

No. 24276

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

437 F.2d 214; 1971 U.S. App. LEXIS 12446

January 11, 1971





CORE TERMS: misbranded, religious, labeling, misbranding, capricious, prevention, diagnosis, judicata, disease, seized, labels, branding, First Amendment, civil rights, mitigation, harmless, falsity, enjoin, cure, wit, religious freedom, condemnation, galvanometer, therapeutic, ineffective, religion, skin

JUDGES: [**1]

Ely, Carter and Trask, Circuit Judges.

OPINIONBY: CARTER

OPINION: [*216] JAMES M. CARTER, Circuit Judge:

This appeal involves an alleged deprivation of rights protected by the United States Constitution and the Civil Rights Act of 1964 (42 U.S.C. 1981, 1983).

Appellant is a California non-profit corporation, organized for the ostensible purpose of disseminating religious doctrine known as "Scientology." n1 The "Hubbard E-meter" is an instrument that is allegedly essential to the practice of Scientology. The E-meter is manufactured in the United Kingdom and is, in fact, a simple skin galvanometer that crudely measures changes in electrical resistance in the human body. The Food and Drug Administration refused to allow the inportation of E-meters because they were deemed to be "devices" (21 U.S.C. 321(h)) that appeared to be "misbranded" in that they did not bear adequate instructions for use (21 U.S.C. 352(f) (1)). The refusal was based, inter alia, on a successful condemnation action against certain E-meters in the District Court for the District of Columbia [United States v. An Article of Device . . . E-meter (D.C.Civ.No. DC1-1963 (1967))]. The E-meters here in [**2] question were seized and detained by Post Office and Customs officials on the ground that they were in violation of the Federal Food, Drug, and Cosmetic Act.

n1 For a thorough presentation of the tenets and practices of "Scientology" see Founding Church of Scientology v. United States (1969) 133 U.S.App.D.C. 229, 409 F.2d 1146.

After the instruments were seized, appellant received a hearing before the Food and Drug Administration in Los Angeles on August 6, 1968. The hearing examiner concluded that the E-meters did not bear adequate instructions for use and, therefore, that they could not be imported into this country. Upon considering the record of the hearing and other available information, the Food and Drug Administration concluded that the E-meter devices appeared to be misbranded within the meaning of 21 U.S.C. 352(f) (1), as alleged in the notice of seizure, and made the determination of misbranding.

Appellant then filed this suit: (a) to enjoin the F.D.A. from refusing admission of the E-meters [**3] into the United States; (b) to enjoin the F.D.A. from compelling the return of the devices to their country of origin; and (c) for $20,000.00 in damages to persons in the class affected. The district court granted the Government's motion for summary judgment. Thereafter, appellant filed a motion for relief from judgment on the basis that, in the interim, the D.C. District Court's earlier condemnation of certain E-meters had been reversed by the D.C. Circuit Court of Appeals in Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 409 F.2d 1146, cert. denied 396 U.S. 963, 90 S. Ct. 434, 24 L. Ed. 2d 427 (1969). The motion was denied. We affirm.

Discussion

The Government may refuse admission to any "device" offered for importation if it appears to be "misbranded" [21 U.S.C. 381(a)]. The term "device" is defined as "instruments, apparatus, and contrivances * * * intended (1) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man * * *. [21 U.S.C. 321(h)]." A device is considered to be "misbranded" if, inter alia, its labeling [*217] does not bear adequate directions for use [21 U.S.C. 352(f)]. [**4]

1. Issues of Fact

Appellant contends that the district court erred in granting summary judgment because there were material issues of fact remaining. Appellant urges that these issues of fact were: (a) whether the E-meter was used in the religious practices of Scientology; and (b) whether the E-meters were misbranded?

The issue of the E-meters' alleged religious use is irrelevant here. The district court held that the exercise of religious freedom does not include the freedom to violate the Federal Food, Drug, and Cosmetic Act. We agree.

The "misbranding" issue can be most accurately described as a question of scope of judicial review. The district court held that the E-meter was a "device" within 321(h) because it is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man. n2 All "devices" are subject to the Act's branding requirements [21 U.S.C. 352].

n2 The Seventh Circuit upheld the same finding with regard to a similar skin galvanometer in United States v. Ellis Research Labs (7 Cir. 1962) 300 F.2d 550.

[**5]

Section 381(a) requires only that the device appear to be misbranded, and vests such determinations in the discretion of the Secretary of Health, Education, and Welfare. The Secretary's determination of misbranding is not subject to judicial alteration unless it was arbitrary and capricious. Sugarman v. Forbragd (9 Cir. 1968) 405 F.2d 1189.

First, there were no allegations in the complaint that the Secretary's determination of misbranding was arbitrary or capricious. The real issue tendered by the complaint was an asserted violation of civil rights, to wit religious freedom.

Second, the district court found the action was not arbitrary or capricious. In determining that the E-meters appeared to be misbranded, the Secretary could consider: (a) appellant's literature that contains diagnostic and therapeutic claims for the E-meter; (b) appellant's admission that the devices are ineffective for any medical therapeutic purpose; (c) the absence of instructions for use on the labeling of the devices; and (d) the prior adjudication by the D.C. District Court that the E-meters were in fact misbranded devices. In view of this evidence, the district court concluded that appellant [**6] had failed to establish any arbitrary or capricious action by the Secretary. We agree.

Appellant argues that Sugarman's limitation on judicial review is inapplicable here because the Secretary has ignored the Congressional mandate to exempt from the Act's branding requirements any device as to which labeling would not be necessary for the protection of the public health [21 U.S.C. 352(f)]. Appellant contends that E-meters are non-injurious and, therefore, should have been exempted. We think that the Hubbard E-meter is akin to the device in issue in Drown v. United States (9 Cir. 1952) 198 F.2d 999. In Drown, this court held:

"While the instruments may be harmless in themselves, their danger lies in the possibility that 'ignorant and gullible persons are likely to rely upon them instead of seeking professional advice for conditions they are represented to relieve or prevent'." [198 F.2d at 1006].

In this sense, appellant's E-meters cannot be considered harmless and, therefore, the Act's branding provisions are applicable. See also United States v. Ellis Research Labs. (7 Cir. 1962) 300 F.2d 550.

2. First Amendment Violations

Appellant [**7] contends that, in making the determination of "misbranding," the court must have considered and evaluated Scientology's religious literature [*218] in violation of its First Amendment rights. The district court found that the appellant had conceded that the E-meter devices were ineffective for any medical or therapeutic purposes. Appellant asserts that the devices are used solely as a confessional aid in Scientology, and that the detention of the devices by the Government unlawfully interferes with appellant's religious freedom.

In Founding Church, supra, the D.C. Circuit held that the court could not constitutionally evaluate the truth or falsity of the medical claims made in Scientology's "religious" literature, citing United States v. Ballard (1944) 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148. The statute in issue there was 21 U.S.C. 334(a), which provides that a device is misbranded if its "labeling" bears false or misleading claims. The court reversed the decree of condemnation on the ground that "some of that literature was at least prima facie religious doctrine, and that the jury, as it was instructed, could have found against the E-meter by finding [**8] false statements in 'labeling' which was at the same time religious doctrine." 409 F.2d at 1164. The court specifically reserved, however, the issue of whether "a drug or device used in a religion is subject to condemnation as 'misbranded' if its labeling is found to lack * * * adequate directions for use [21 U.S.C. 352(f)]." 409 F.2d at 1162.

In determining the E-meter's intended use, the court could validly consider the appellant's publications that discuss the device's applications. Nature Food Centres, Inc. v. United States (1 Cir. 1963) 310 F.2d 67; United States v. Article of Drug . . . Capsules (3 Cir. 1966) 362 F.2d 923; Alberty Food Products v. United States (9 Cir. 1952) 194 F.2d 463. Unlike the "mislabeling" section involved in Founding Church, the court here could determine the E-meter's intended use without evaluating the truth or falsity of any related "religious" claims. To the contrary, appellant's claims in its literature regarding the applications of the device in the practice of religion were presumed to be true for the purpose of determining its intended use. We find no infringement of First Amendment rights.

3. Potpourri

Appellant contends [**9] that the district court misapplied the doctrine of res judicata by allegedly relying completely on the district court result in Founding Church. Appellant is mistaken. The district court's opinion does not contain any mention of the doctrine of res judicata. The court only referred to the district court decision in Founding Church as a fact, among others, that the Government could have reasonably relied upon in deciding to refuse admission to the E-meters pursuant to 21 U.S.C. 381(a). During the pendency of the appeal in the District of Columbia, such reliance would seem to be quite proper. The subsequent reversal by the D.C. Circuit does not require reversal here, because the doctrine of res judicata was never applied.

Finally, appellant asserts that the E-meters are not misbranded because they bear disclamatory labels, to wit: "Not intended or effective for the diagnosis, treatment, or prevention of any disease." Such labels, however, were found to appear on less than half of the devices seized. Furthermore, labels of disclaimer are not controlling, but are to be considered together with any extrinsic evidence of the device's intended use (e.g. publications, advertisements, [**10] etc.) Alberty Food Products v. United States (9 Cir. 1952) 194 F.2d 463. There is ample evidence to support the court's finding of the E-meter's intended use.

We find appellant's allegations of error to be without merit. The judgment of the district court is affirmed.





The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., et

al., Appellants, v. UNITED STATES of America, Appellee

No. 21483

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

133 U.S. App. D.C. 229; 409 F.2d 1146; 1969 U.S. App. LEXIS

9065; 13 A.L.R. Fed. 721

February 5, 1969, Decided

SUBSEQUENT HISTORY: [**1]

Petition for Rehearing Denied April 18, 1969.

CORE TERMS: religious, religion, auditing, labeling, seizure, church, misleading, disease, First Amendment, cure, food, pamphlet, seized, misbranded, falsity, curative, secular, Fourth Amendment, auditor, healing, meter, condemnation, engrams, regulation, general public, misbranding, processing, molasses, prima facie, promotional

JUDGES: Wright, McGowan and Robinson, Circuit Judges. McGowan, Circuit Judge (dissenting).

OPINIONBY: WRIGHT

OPINION: [*1148] J. SKELLY WRIGHT, Circuit Judge:

This is an appeal from a judgment and decree of condemnation and destruction against several electrical instruments and a large quantity of literature owned by claimants-appellants, The Founding Church of Scientology of Washington, D.C. and various individual adherents of that organization. The instruments and literature were seized by the Food and Drug Administration as "devices" with accompanying "false and misleading labeling" subject to condemnation under the Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq. (1964). The Government further charged that the [**2] instruments were "devices" lacking "adequate directions for use," in further violation of the Act. n1 After a jury trial, a general verdict "for the Government" was returned, and a judgment and decree of condemnation was entered.

n1

"Any * * * device * * * that is * * * misbranded * * * while in interstate commerce * * * shall be liable to be proceeded against * * * and condemned in any district court of the United States within the jurisdiction of which the article is found * * *."

21 U.S.C. 334(a).

"A drug or device shall be deemed to be misbranded --

"(a) False or misleading label.

"If its labeling is false or misleading in any particular.

* * *

"(f) Directions for use and warnings on label.

"Unless its labeling bears (1) adequate directions for use * * *."

21 U.S.C. 352.

"The term 'interstate commerce' means * * * (2) commerce within the District of Columbia * * *."

21 U.S.C. 321(b).

Appellants contend that the seizure of the articles [**3] violated their Fourth Amendments rights, that the proceedings interfered with the free exercise of their religion, and that the evidence was insufficient to sustain the verdict. Because we find that much of the literature relied [*1149] on by the Government to establish misbranding was not "labeling" n2 within the meaning of the statute as interpreted in the light of the First Amendment, we reverse.

n2 As defined in 21 U.S.C. 321(m), the text of which is set out in Note 15, infra.

I

At the outset, we confront appellants' claim that the disputed instruments and literature, the res of this lawsuit, were seized in violation of the Fourth Amendment. The Act provides that misbranded devices "shall be liable to be proceeded against * * * on libel of information," n3 and that such devices "shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty * * *." n4 The applicable procedure in [**4] admiralty at the time of the seizure was provided in former Admiralty Rule 21, the text of which is set out in the margin. n5

n3 21 U.S.C. 334(a).

n4 21 U.S.C. 334(b).

n5 "All informations and libels of information upon seizures for any breach of the revenue, or navigation or other laws of the United States, shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought and where it then is. The information or libel of information shall propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return day of the process why the forfeiture should not be decreed."

7A J. MOORE, FEDERAL PRACTICE para..30, p. 236 (2d ed.1968).

[**5]

The Government complied with the procedures required by statute and rule in this case. Pursuant to the inspection provisions of the Act, FDA agents visited the Founding Church of Scientology, obtained a demonstration of the instrument later seized, and bought copies of the literature later alleged to be "labeling" of the instrument. The United States Attorney then filed a libel of information with the District Court, describing the instrument and literature and averring that together they constituted a "device" and accompanying "false or misleading labeling" subject to condemnation under the Act. The court ordered issuance of a warrant authorizing seizure of the instruments and literature, and public advertisement of the seizure. FDA agents and United States Marshals carried out the seizure on January 4, 1963, at various premises owned by appellant Founding Church and its affiliates, after service of the warrant of attachment.

Appellants n6 contend that seizures such as this are governed by the warrant clause of the Fourth Amendment, which provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be [**6] searched, and the persons or things to be seized." Since in appellants' view the warrant of seizure was not issued "upon probable cause, supported by Oath or affirmation," they contend that the exclusionary rule bars the use in evidence in a condemnation proceeding of the matter seized.

n6 Appellants appeared as claimants to the seized goods in the District Court, and demanded a jury trial, under 21 U.S.C. 334(b).

In arguing the Fourth Amendment issue, the parties have concentrated chiefly upon the question whether the exclusionary rule applies to condemnation proceedings under the Act. n7 Because we find [*1150] that the seizure in this case was "reasonable" under the applicable Fourth Amendment standards, we do not reach that question.

n7 See One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S. 693, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965); Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886); but see United States v. 2000 Plastic Tubular Cases, etc., 3 Cir., 352 F.2d 344 (1965), cert. denied, 383 U.S. 913, 86 S. Ct. 891, 15 L. Ed. 2d 667 (1966).

[**7]

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It gives procedural form to this sweeping protection through the warrant clause, which requires that a magistrate review the decision to arrest or search except in exigent cases. The often stated purpose of this requirement is to interpose a relatively detached and independent decision maker between the privacy of the individual and the otherwise unchecked zeal of enforcement officials. n8

n8 Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 532-533, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948).

Though warrants are generally necessary for arrests of persons and for searches, the warrant requirement has not traditionally been imposed upon seizures of the type involved in this case -- attachment of property in the course of civil proceedings. This does [**8] not mean that the Fourth Amendment does not apply to such seizures, in both its substantive prohibition against unreasonable seizures and its procedural requirement of judicial or quasi-judicial review of the decision to seize. It means merely that judicial restraint is imposed through a different form of proceeding than the showing of probable cause before a magistrate. In the case of ordinary civil attachments, the details of such proceedings are, even in the federal courts, left to state law. n9 In cases in admiralty, the process is governed by the Admiralty Rules, lately recodified as a supplement to the Civil Rules. n10

n9 Rule 64, FED.R.CIV.P.

n10 Supplemental Rules B and C, FED.R.CIV.P.

Tradition has sanctified these forms and processes of civil attachments, and they have not been subjected to much Fourth Amendment scrutiny in either litigation or scholarly literature. We need not review them generally now, however, for we find that this particular seizure was reasonable in both the grounds supporting [**9] it and the judicial supervision over the decision to make it.

The libel of information filed by the United States Attorney particularly described the items to be seized, and gave a reasonably particular account of the respects in which they were thought to contravene the Act. n11 Though the libel was not a verified complaint, it has been been held that in admiralty complaints signed by Government officers are attested to by the officer's oath of office. n12 The libel was subject to scrutiny by a United States District Judge, and it was only after his review and by court order that the warrant issued. In these circumstances, all requirements imposed by the Fourth Amendment were complied with. n13

n11 The libel alleged that the "Hubbard Electrometers" were accompanied as labeling by a list of named books and pamphlets, which were alleged to claim that the E-meter could be used in the cure or treatment of a list of named diseases, claims alleged to be false and misleading.

n12 United States v. 935 Cases, etc., of Tomato Puree, 6 Cir., 136 F.2d 523, 525, cert. denied, 320 U.S. 778, 64 S. Ct. 92, 88 L. Ed. 467 (1943).

[**10]

n13 Appellants also contend that the seizure was the fruit of an illegal search in the form of a visit to the Scientology headquarters four years previously by an FDA agent passing as a member of the general public. There was no showing that the previous visit bore any relationship to the seizure in this case, and in any event inspections of premises open to the general public are not illegal searches. Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966). Appellants also contend that the seizure was carried out in an unreasonable manner, but on examination of the record we find this contention to be without merit.

[*1151] II

We turn then to the merits of the Government's case against the instruments and literature subject to the decree of condemnation. The Government has charged that the instruments seized, Hubbard Electrometers or "E-meters," are "devices" as defined in the Act; n14 that the literature seized constitutes "labeling" of the device, in that it is "written, printed, or graphic matter * * * accompanying" the device; n15 and that this "labeling" is false [**11] or misleading. Because our reading of the Act in its application to this case is influenced by appellants' claims to the free exercise of their religion, some background concerning their movement becomes necessary.

n14 "The term 'device' * * * means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended (1) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or (2) to affect the structure or any function of the body of man or other animals."

21 U.S.C. 321(h).

n15 "The term 'labeling' means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article."

21 U.S.C. 321(m).

A. Appellants in this case, claimants to the seized materials, are individual and corporate adherents to the movement known as Scientology. The movement apparently rests almost entirely upon the writings of one man, L. Ron Hubbard, an American [**12] who maintained the headquarters of the movement in England at the time this action was brought. In the early 1950's, Hubbard wrote tracts elucidating what he called "Dianetics." n16 Dianetics is a theory of the mind which sets out many of the therapeutic techniques now used by Scientologists, including techniques attacked by the Government in this case as false healing.

n16 DIANETICS: THE EVOLUTION OF A SCIENCE (1958) (a work which apparently appeared in ASTOUNDING SCIENCE FICTION magazine in 1950 -- see A BRIEF BIOGRAPHY OF L. RON HUBBARD 8 (author not given, 1959); DIANETICS: THE MODERN SCIENCE OF MENTAL HEALTH (1950); SCIENCE OF SURVIVAL: PREDICTION OF HUMAN BEHAVIOUR (1951). In this and succeeding footnotes, where author is not given, the author is L. Ron Hubbard.

The basic theory of Dianetics is that man possesses both a reactive mind and an analytic mind. The analytic mind is a superior computer, incapable of error, to which can be attributed none of the human misjudgments which create social problems [**13] and much individual suffering. These are traceable rather to the reactive mind, which is made up of "engrams," or patterns imprinted on the nervous system in moments of pain, stress or unconsciousness. These imprinted patterns may be triggered by stimuli associated with the original imprinting, and may then produce unconscious or conditioned behavior which is harmful or irrational. n17

n17 An exposition of the "fundamentals of Dianetics" of relative clarity and brevity is to be found in the publisher's introduction to SCIENCE OF SURVIVAL, supra Note 16, at i-viii.

Dianetics is not presented as a simple description of the mind, but as a practical science which can cure many of the ills of man. It terms the ordinary person, encumbered by the "engrams" of his reactive mind, as a "preclear," by analogy to a computer from which previously programmed instructions have not been erased. The goal of Dianetics is to make persons "clear," thus freeing the rational and infallible analytical mind. The benefits this will [**14] bring are set out in considerable and alluring detail. All mental disorders are said to be caused by "engrams," as are all psychosomatic disorders, and that concept is broadly defined. n18

n18 DIANETICS: THE MODERN SCIENCE OF MENTAL HEALTH, supra Note 16, at 91-108.

A process of working toward "clear" is described as "auditing." This process was explicitly characterized as "therapy" in Hubbard's best-selling book DIANETICS: [*1152] THE MODERN SCIENCE OF MENTAL HEALTH (1950). The process involves conversation with an "auditor" who would lead the subject or "preclear" along his "time track," discovering and exposing "engrams" along the way. Though auditing is represented primarily as a method of improving the spiritual condition of man, rather explicit benefits to bodily health are promised as well. Hubbard has asserted that arthritis, dermatitis, asthma, some coronary difficulties, eye trouble, bursitis, ulcers and sinusitis are psychosomatic and can be cured, and further that tuberculosis is "perpetuated [**15] by engrams." n19

n19 Id. at 92-93. In a later work, Hubbard brought cancer within the scope of treatment by "auditing." See SCIENTOLOGY: A HISTORY OF MAN 21 (4th ed. 1961).

A few years after the appearance of Dianetics, Hubbard began to set forth the broader theories of Scientology. Dianetics was explicitly endorsed as part of Scientology, "that branch * * * that covers Mental Anatomy." n20 Testimony by Scientology adherents at the trial made clear that they continue to uphold the theories of Dianetics, though they feel that there may have been some errors in early formulations.

n20 See SCIENCE OF SURVIVAL, supra Note 16, at 1 n. 1 (apparently a footnote inserted into a later printing of this preScientology book).

With Scientology came much of the overlay which lends color to the characterization of the movement as a religious [**16] one. Hubbard has claimed kinship between his theories and those espoused by Eastern religions, especially Hinduism and Buddhism. n21 He argues that man is essentially a free and immortal spirit (a "thetan" in Scientological terminology) n22 which merely inhabits the "mest body" ("mest" is an acronym of the words matter, energy, space, time). n23 Man is said to be characterized by the qualities of "beingness," "havingness," and "doingness." n24 The philosophical theory was developed that the world is constructed on the relationships of "Affinity," "Reality" and "Communication," which taken together are denominated "the ARC Triangle." n25

n21 See, e.g., L. RON HUBBARD'S PAB'S, BOOK III 14-20 (1956).

n22 See SCIENTOLOGY: THE FUNDAMENTALS OF THOUGHT 32 (1956).

n23 See SCIENTOLOGY 8-8008 at 13-19 (3ded.1956).

n24 See SCIENTOLOGY: THE FUNDAMENTALS of THOUGHT, supra Note 22, at 16.

n25 See SCIENTOLOGY 8-8008, supra Note 23, at 20-44.

On the more mundane level, early in [**17] the career of Scientology Hubbard's followers -- at least those in the United States -- began to constitute themselves into formal religious bodies. The Founding Church of Scientology of Washington, D.C., one of the appellants, was incorporated in the District of Columbia in 1955. A formal creed was promulgated and was made part of the Articles of Incorporation. From the literature of the movement in evidence at trial, it appears that the move toward formal religious organization disturbed some adherents of Scientology, who seem to have regarded it as an attempt to provide a legal cloak for the movement's activities. But Hubbard defended the church movement, disavowing mysticism or supernaturalism, but pointing out the kinship of his ideas with those of the Vedas and other Eastern religious doctrines. n26

n26 For Hubbard's account of this dispute, see L. RON HUBBARD'S PAB'S, BOOK III, supra Note 21, at 14-20.

From the evidence developed at trial, it appears that a major activity of the Founding Church [**18] and its affiliated organizations in the District of Columbia is providing "auditing," at substantial fees (at the time of trial $500 for a 25-hour course), to persons interested in Scientology. The affiliated Academy of Scientology is engaged in training auditors. Auditors are paid directly by the Church. There is no membership in the Church as such; persons are accepted for auditing on the basis of their interest in Scientology [*1153] (and presumably their ability to pay for its benefits).

The Hubbard Electrometer, or E-meter, plays an essential, or at least important, part in the process of auditing. The E-meter is a skin galvanometer, similar to those used in giving lie detector tests. The subject or "preclear" holds in his hands two tin soup cans, which are linked to the electrical apparatus. A needle on the apparatus registers changes in the electrical resistance of the subject's skin. The auditor asks questions of the subject, and the movement of the needle is apparently used as a check of the emotional reaction to the questions. According to complex rules and procedures set out in Scientology publications, the auditor can interpret the movements of the needle after certain [**19] prescribed questions are asked, and use them in diagnosing the mental and spiritual condition of the subject. The E-meters are sold for about $125, and are advertised in Scientology publications available at the Distribution Center adjoining the Church.

The Scientology movement in the District of Columbia also offers the entire range of Scientology publications for sale. Over the years this literature has grown into a formidable corpus. Hubbard's two early books on Dianetics are sold, along with later treatises developing Scientology. A large number of pamphlets and tracts supplements the hardcover books. The movement has a monthly magazine, ABILITY, which at the time of trial had published over 100 numbers. In addition, "L. Ron Hubbard's Professional Auditors' Bulletins," numbering at least 80 at the time of trial, are collected and published in pamphlets. Much of this literature is before the court as exhibits in evidence, and a large proportion of it stands condemned by the District Court's decree as "false or misleading labeling" of the E-meter. n27

n27 In an appendix to its decree the District Court listed the works found to make false claims respecting the curative powers of auditing and ordered them condemned along with the E-meter. Since we conclude that the judgment of the court must be reversed in toto, we do not reach appellants' claim that the Act does not authorize condemnation of labeling, especially "labeling" which takes the form of general literature.

[**20]

B. With this factual background in mind, we turn to the litigation of this case in the District Court. The Government has framed this as a typical Food, Drug and Cosmetic Act case, involving a device whose accompanying promotional literature makes claims to curative powers unsupported in fact. The Government has culled from the vast literature of Scientology a large number of statements which assert or imply that "engrams" or the "reactive mind" cause various conditions, mostly those normally considered mental or psychosomatic disorders, but also including diseases or conditions which standard medical opinion would regard as organic. Further statements have been found asserting that auditing or processing, in clearing away the "engrams," can cure or alleviate these conditions. And finally statements have been introduced indicating that the E-meter is essential to, or at least useful in, auditing or processing. On this basis, the Government claims to have shown that the E-meter is a "device" within the meaning of the Act, in that it is "intended * * * for use in the diagnosis, cure, mitigation, treatment, or prevention of disease * * *." 21 U.S.C. 321(h).

The Government put on [**21] a series of expert witnesses. First, physicists and engineers testified concerning the E-meter itself. They found it to be a crude skin galvanometer, of reasonably craftsmanlike design and construction, though with certain serious defects if meant to be used as a research tool for meaningfully measuring electrical skin resistance.

Next, a series of doctors and medical researchers and a psychiatrist testified that, within their expert knowledge, there was no use for such an instrument in the diagnosis or treatment of any disease or mental disorder. They were asked about the specific diseases or conditions claimed in the Scientology literature [*1154] to be susceptible of alleviation through auditing, and unanimously agreed that none of these could be treated or helped in any way through any known use of the E-meter. n28

n28 One Government witness, a psycho-physiologist and neurophysiologist, did testify that there is a connection between stimuli, including mental or emotional stimuli, and skin resistance. He stated: "The good skin resistance devices have been used as a research tool and only very occasionally as a clinical tool to try to discover areas of emotional conflict within an individual who is characterized by a neurotic ailment, if that is the correct word to use here." However, the witness did not consider the E-meter a "good skin resistance device" because its needle reacted to such irrelevant factors as the tightness with which the subject held the soup cans.

[**22]

In its legal arguments the Government has contended from the outset that whether or not Scientology is a religion, and whether or not auditing or processing is a practice of that religion, are entirely irrelevant to the case. Religious beliefs, it is argued, are entirely protected by the First Amendment, but action in the name of religion is susceptible to legal regulation under the same standards and to the same degree as it would be if entirely secular in purpose.

Appellants have argued from the first that the entire case must fall as an unconstitutional religious persecution. In their view, auditing or processing is a central practice of their religion, akin to confession in the Catholic Church, and hence entirely exempt from regulation or prohibition. They have made no attempt to contradict the expert testimony introduced by the Government. They have conceded that the E-meter is of no use in the diagnosis or treatment of disease as such, and have argued that it was never put forward as having such use. Auditing or processing, in their view, treats the spirit of man, not his body, though through the healing of the spirit the body can be affected. They have culled from their literature [**23] numerous statements disclaiming any intent to treat disease and recommending that Scientology practitioners send those under their care to doctors when organic defects may be found. They have introduced through testimony a document which they assert all those who undergo auditing or processing must sign which states that Scientology is "a spiritual and religious guide intended to make persons more aware of themselves as spiritual beings, and not treating or diagnosing human ailments of body or mind, and not engaged in the teaching of medical arts or sciences * * *."

Finally, with respect to their claim to be a religion and hence within the protection of the First Amendment, they have shown that the Founding Church of Scientology is incorporated as a church in the District of Columbia, and that its ministers are qualified to perform marriages and burials. They have introduced their Creed into evidence. The Government has made no claim that the Founding Church is not a bona fide religion, that auditing is not part of the exercise of that religion, or that the theory of auditing is not a doctrine of that religion.

C. Thus both parties have viewed the religious issue as a simple [**24] one. In the Government's view, religion is simply irrelevant -- appellants have engaged in "action" and hence stripped themselves of any First Amendment protection. In appellants' view, religion is dispositive -- auditing is part of the practice of their faith and hence the free exercise clause protects it from all secular regulation. In our view, the religious issue is more complex than either of the parties has maintained.

First, it is clear that the First Amendment does not protect from regulation or prohibition all bona fide religious practices. As the Supreme Court has stated:

"* * * [The First Amendment] embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains [*1155] subject to regulation for the protection of society. * * *"

Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). (Footnote omitted.) Thus the prohibition of plural marriage has been upheld, even though the practice is a religious duty to some. n29 Similarly, parading without a license n30 and the sale by children of religious literature n31 have been [**25] prohibited, even though practiced as tenets of religious faith.

n29 Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890); Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L. Ed. 244 (1878).

n30 Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049 (1941).

n31 Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944).

On the other hand, legal restrictions cannot be applied to religious practices, as they can in much of the secular realm, merely on a showing of a rational relationship between the regulation imposed and the legitimate end sought. In Cantwell, supra, 310 U.S. at 304, 60 S. Ct. at 903, the Court stated that "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (Emphasis added.) And in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S. Ct. 1178, 1186, 87 L. Ed. 1628 (1943), the Court spoke more elaborately and more forcefully [**26] to the same issue:

"* * * The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. * *"

Similarly in Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795, 10 L. Ed. 2d 965 (1963), the Court held that "'only the gravest abuses, endangering paramount interests, give occasion for permissible limitation'" of religious practices. In that case, the Court held that denial of unemployment benefits to those who would not work on Saturday, though permissible as a general rule, could not be applied to one whose refusal to work was based on religious objections.

The principles enunciated in Cantwell, Barnette and Sherbert at least raise a constitutional doubt concerning the condemnation of instruments and literature apparently central to the practice of religion. [**27] That doubt becomes more serious when we turn to the decision of the Supreme Court in United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944).

Ballard involved an eccentric religion known as the "I Am" movement. The promoters of this religion, members of the Ballard family, claimed to have been appointed by one "Saint Germain" as "divine messengers," and to have been given the power to cure all diseases. By virtue of these claims, they obtained money from members of the public. They were tried for mail fraud. The trial judge excluded from consideration by the jury the issue of the truth or falsity of their claims to divine designation and miraculous powers, and the case was submitted on the sole issue of whether they made those claims in good faith. They were convicted, and on review the Court of Appeals ruled that exclusion of the issue of truth or falsity was improper. Ballard v. United States, 9 Cir., 138 F.2d 540 (1943).

The Supreme Court reversed the Court of Appeals, holding that the First Amendment prohibited trial of the truth or falsity of religious beliefs:

"* * * Freedom of thought, which includes freedom of religious belief, [*1156] [**28] is basic in a society of free men. * * * It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. * * * Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. * * * The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. * * *"

322 U.S. at 86-87, 64 S. Ct. at 886.

The Ballard case does not hold merely that religious belief is protected. The Ballards engaged in action; they solicited money from their faithful. Rather the holding of the case seems to be that regulation of religious action [**29] which involves testing in court the truth or falsity of religious belief is barred by the First Amendment.

The relevance of Ballard to the case before us is obvious. n32 Here the E-meter has been condemned, not because it is itself harmful, but because the representations made concerning it are "false or misleading." And the largest part of those representations is contained in the literature of Scientology describing the process of auditing which appellants have claimed, without contest from the Government, is part of the doctrine of their religion and central to its exercise. Thus if their claims to religious status are accepted, a finding that the seized literature misrepresents the benefits from auditing is a finding that their religious doctrines are false. To construe the Food, Drug and Cosmetic Act to permit [*1157] such a finding would, in the light of Ballard, present the gravest constitutional difficulties.

n32 We do not perceive any meaningful distinction in the fact that this is a civil in rem action whereas Ballard was a criminal prosecution. In the first place the Supreme Court has long recognized that in rem forfeiture actions are penal in nature and subject to many of the same restrictions placed upon prosecutions. One 1958 Plymouth Sedan v. Pennsylvania, supra Note 7; Boyd v. United States, supra Note 7. The action taken against appellants here is more than merely remedial; it is punitive. The devices condemned here cannot properly be considered contraband per se. See One 1958 Plymouth Sedan, supra, 380 U.S. at 699, 85 S. Ct. 1246, 14 L. Ed. 2d 170. They are not in themselves harmful, as are adulterated foods and drugs or miswired electrical devices. Their only alleged illegal attribute is the supposedly false claims made concerning their powers.

Second, we do not perceive the constitutional defect found in Ballard to have been the prosecution of individuals for promulgating false religion. That defect was rather the litigation of the truth or falsity of religious doctrines. See 322 U.S. at 87, 64 S. Ct. at 887:

"* * * But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. * * *" (Emphasis added.)

Thus under Ballard it seems unlikely that a disgruntled former adherent could sue a church for fraud and deceit because it had collected money from him on the basis of allegedly "false" doctrines concerning salvation, heaven and hell -- or for that matter on the basis of doctrines, such as those of the Christian Scientists, concerning the cause and cure of disease.

Indeed, the Supreme Court has recently unanimously held that courts cannot settle a civil property dispute between church bodies where the dispute turns on the orthodoxy of the religious doctrines espoused by the parties. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969).

[**30]

D. It is with these constitutional considerations in mind that we turn to our examination of the application of the statute to the facts of this case. Appellants have argued that much of the Scientology literature from which claims concerning the curative powers of auditing was culled by a Government witness is not "labeling" of the E-meter within the meaning of the Act, since it is part of the religious doctrine of their church.

For purposes of the Act, "the term 'labeling' means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article." n33 Most of the litigation over this definition has turned upon the question of when written matter may be said to "accompany" an article. In this case the Government has contended that Scientology literature on sale in the Distribution Center, which adjoins the Hubbard Guidance Center where E-meters were used in auditing, "accompanied" the E-meters.

n33 21 U.S.C. 321(m).

The [**31] courts have construed the word "accompanying" to give broad remedial effect to the purposes of the Act. In Kordel v. United States, 335 U.S. 345, 69 S. Ct. 106, 93 L. Ed. 52 (1948), the Supreme Court ruled that, in order to be considered "labeling" of a drug, promotional pamphlets need not be shipped together with the drug. It held that:

"One article or thing is accompanied by another when it supplements or explains it, in the manner that a committee report of the Congress accompanies a bill. No physical attachment one to the other is necessary. * * *

"The false and misleading literature in the present case was designed for use in the distribution and sale of the drug, and it was so used. * * *"

335 U.S. at 350, 69 S. Ct. at 109. Nor did the fact that the pamphlets were sold save them from being "labeling" in the context of that case:

"* * * The booklets and drugs were nonetheless interdependent; they were parts of an integrated distribution program. The Act cannot be circumvented by the easy device of a 'sale' of the advertising matter where the advertising performs the function of labeling."

Ibid.

Kordel thus laid down the broad lines for [**32] determining whether literature "accompanies" a drug or device; to do so it need not be shipped together with the device, but it must be "designed for use in the distribution and sale of" the device, and the two must be "parts of an integrated distribution program."

Subsequent cases in the lower courts have helped sketch in the rough outlines drawn by Kordel. In the Molasses n34 case, a best-selling book extolling the curative powers of blackstrap molasses, though mentioning no brand names, was used by health food retailers in a promotional scheme. A copy of the book was placed in the window of the store next to a display of their brand of molasses. Prospective purchasers of molasses inside the store were handed copies of the book and referred to passages in it which made the misleading claims about the product. The particular copies of the book used in this scheme were found by the District Court to "accompany" the molasses. n35

n34 United States v. 8 Cartons, etc., Molasses, W.D.N.Y., 103 F. Supp. 626 (1951).

n35 For a similar case, involving the book ABOUT HONEY, see United States v. 250 Jars, etc., of U.S. Fancy Pure Honey, E.D.Mich., 218 F. Supp. 208 (1963), affirmed, 6 Cir., 344 F.2d 288 (1965).

[**33]

On the other hand, in the Balanced Foods n36 case, general literature which falsely claimed healthful properties for a food was found by the Second Circuit not [*1158] to "accompany" it. The facts of that case are interesting. The best-sellers FOLK MEDICINE and ARTHRITIS AND FOLK MEDICINE prescribed a mixture of vinegar and honey for a wide variety of maladies. After FOLK MEDICINE achieved success, a health food manufacturer bottled a preparation of this mixture for sale. The manufacturer also purchased copies of the book and distributed them after special promotional efforts to the same health food outlets which sold the mixture. There was evidence that the retail stores displayed the mixture and copies of the book a few feet apart. On these facts, the court reversed a judgment that the book constituted "false labeling" of the food. The court distinguished Kordel on the ground that the drug and pamphlet in that case had been mailed in "integrated transactions," and that the vendors had given away copies of the pamphlets with sales of the drugs in some instances. n37

n36 United States v. 24 Bottles "Sterling Vinegar & Honey, etc.", 2 Cir., 338 F.2d 157 (1964).

[**34]

n37 In another case the Second Circuit has found general literature (in this case articles in medical journals) to be "labeling" because it was used in a promotional scheme with a device. United States v. Diapulse Manufacturing Corp. of America, 2 Cir., 389 F.2d 612, cert. denied, 392 U.S. 907, 88 S. Ct. 2059, 20 L. Ed. 2d 1365 (1968).

The facts of the case before us differ materially from those in the cases just reviewed. The alleged "labeling" here is not a single readily digestible book, or a collection of pamphlets obviously promotional in nature, but rather a vast array of the often obscure literature of Scientology. This literature was, according to the evidence at trial, all offered for sale at the Distribution Center, Inc., a corporation affiliated with the Founding Church, which had its book store next to the Guidance Center at which Scientology auditing services were provided.

A small proportion of this literature deals directly with the E-meter itself. Two books, apparently intended for Scientology auditors rather than the general public, describe the nature and workings of the [**35] E-meter, and at the same time give some guidance as to its use in the auditing process. n38 Within these books can be found statements to the effect that the E-meter is an essential aid to proper auditing. However, these works contain very little of what the Government contends is false and misleading in the labeling of the E-meter. Though there are claims concerning the scientific properties of the E-meter which are open to question, n39 the Government placed little reliance upon these in presenting its case to the jury.

n38 J. SANBORN, THE HUBBARD ELECTROMETER (1959); L. R. HUBBARD, E METER ESSENTIALS 1961.

n39 For instance, in E METER ESSENTIALS 1961, supra Note 38, at 18, Hubbard claims that "the meter will also read Basal Metabolism." The Government included this claim among its allegations of false labeling in the libel. However, the great bulk of the allegations charges that false or misleading statements were made, not about the E-meter itself, but about the process of auditing in which it is used.

[**36]

Among the literature of Scientology before the court there are found a few advertisements, apparently directed at the general public, which make direct appeals for customers (or converts, if the appellants' version is to be accepted). These advertisements are found in copies of the monthly Scientology magazine ABILITY. Their representations concerning the auditing process appear to be general come-ons, designed to bring in the curious or the gullible. n40

n40 See, e.g., ABILITY, No. 58, at 5:

"Plagued by illness? We'll make you able to have good health. Get processed by the finest capable auditors in the world today. Every auditor a D.D. One-week intensive. Three-week intensive. Weekend group intensives. Personally coached and monitored by L. Ron Hubbard, Founder. Come to Registrar, 1812-19th Street, N.W., Washington 9, D.C."

By far the greatest bulk of the material alleged to be "false labeling" of the E-meter consists of the general literature of Scientology, which presents in an integrated [*1159] [**37] manner the theory sketched earlier concerning the human mind, the sources of various sorts of unhappiness, personality disorder and psychosomatic complaints, and the way in which the process of auditing can alleviate these ills. Within this literature is to be found only the most occasional passing reference to the E-meter; more often than not, the meter is not even mentioned in these general works. Among these are the introductory works describing Scientology, and it is presumably these works, if any, which are pressed upon curious members of the public in any effort which might be made to promote the sale of Scientology services.

It is within this general literature that the Government has found the passages which, in isolation, stand out most dramatically as fraudulent healing claims. For instance, in perhaps the most obscure and impenetrable of the books, Hubbard's SCIENTOLOGY: A HISTORY OF MAN (4th ed. 1961), occurs the damaging sentence: "Cancer has been eradicated by auditing out conception and mitosis." n41 In short, it is upon this mass of literature that the Government largely depended in showing, to the satisfaction of the jury, that the Scientology movement had made false [**38] claims concerning the curative powers of its auditing techniques.

n41 At page 21.

These, however, are the books which set forth the doctrines of Scientology. If that movement is a religion, as appellants here have claimed, and as the Government has not denied, these books are its scriptures. The statements concerning the powers of auditing over the ills of mind and body are not readily separable from general statements of Scientological doctrines concerning the nature of man and the relationship of his mind to his body. Many will find these doctrines, those which relate to health as well as those which do not, absurd or incoherent. But the Ballard case makes suspect the legal inquisition of such doctrines where they are held as religious tenets.

Were the literature here introduced clearly secular, we might well conclude that under existing law it constituted "labeling" for purposes of the Act. Such a conclusion might be justified by a broad reading of the statute, consistent with its high purpose of protecting [**39] the public health and pocketbook against health frauds. However, such broad readings are not favored when they impinge upon constitutionally sensitive areas, especially in the absence of a showing of legislative intent to regulate these areas. Nothing in the history or interpretation of the Act indicates that it was meant to deal with the special problem of religious healing, a problem often given legislative treatment separate from that imposed upon the general area of public health and medical practice. n42 In light of these considerations, highlighted by the explicit holding of Ballard, n43 we [*1160] interpret the Act as not including within its concept of "labeling" the literature developing the doctrines of a religion.

n42 2 D.C.CODE 134(d) (1967) exempts from the operation of the medical licensing laws "persons treating human ailments by prayer or spiritual means, as an exercise or enjoyment of religious freedom * * *." According to Cawley, Criminal Liability in Faith Healing, 39 MINN.L.REV. 48, 64 (1954), "Most, if not all, * * * states * * * except from the licensing requirements those persons who endeavor to treat human ailments by prayer or spiritual means exclusively." It has been argued that the Constitution requires such exceptions to medical licensing laws. People v. Cole, 219 N.Y. 98, 111, 113 N.E. 790, 795, L.R.A.1917C, 816 (1916) (concurring opinion of Chief Judge Bartlett). Official and unofficial exemptions from various health regulations have protected Christian Scientists in the exercise of their religion. See Schneider, Christian Science and the Law: Room for Compromise?, 1 COLUM.J.LAW & SOC. PROB. 81 (1965).

[**40]

n43 The Ballards made claims to miraculous healing powers and collected money on the basis of these claims. The truth or falsity of their claims was held not subject to evaluation in a prosecution for mail fraud. They marketed no "device" in connection with their claims, but it is difficult confidently to conclude that had they, and had their practices been attacked under food and drug laws rather than the mail fraud statute, the truth of their claims would have been any more a fit subject for litigation.

E. Finally, we come to the vexing question: is Scientology a religion? On the record as a whole, we find that appellants have made out a prima facie case that the Founding Church of Scientology is a religion. It is incorporated as such in the District of Columbia. It has ministers, who are licensed as such, with legal authority to marry and to bury. Its fundamental writings contain a general account of man and his nature comparable in scope, if not in content, to those of some recognized religions. n44 The fact that it postulates no deity in the conventional sense does not preclude its [**41] status as a religion. n45

n44 See text accompanying Notes 21-26, supra.

n45 See United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965); Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957).

The Government might have chosen to contest the claim that the Founding Church was in fact a religion. Not every enterprise cloaking itself in the name of religion can claim the constitutional protection conferred by that status. It might be possible to show that a self-proclaimed religion was merely a commercial enterprise, without the underlying theories of man's nature or his place in the Universe which characterize recognized religions. Though litigation of the question whether a given group or set of beliefs is or is not religious is a delicate business, n46 our legal system sometimes requires it so that secular enterprises may not unjustly enjoy the immunities granted to the sacred. When tax exemptions are granted to churches, litigation [**42] concerning what is or is not a church will follow. n47 When exemption from military service is granted to those who object on religious grounds, there is similar litigation. n48 When otherwise proscribed substances are permitted to be used for purposes of worship, worship must be defined. n49 The law has provided doctrines and definitions, unsatisfactory as they may be, to deal with such disputes. n50 Since the Government chose not to contest appellants' claim to religious status, and since in our view appellants have made a prima facie case for such status, we conclude that for purposes of review of the judgment before us they are entitled to the protection of the free exercise clause. n51

n46 Cf. United States v. Ballard, 322 U.S. 78, 92, 64 S. Ct. 882, 88 L. Ed. 1148 (1944) (dissenting opinion of Mr. Justice Jackson).

n47 Washington Ethical Society v. District of Columbia, supra Note 45; and see particularly, for perhaps the fullest discussion of the meaning of religion for tax exemption purposes, Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394 (1957).

[**43]

n48 United States v. Seeger, supra Note 45; United States v. Kauten, 2 Cir., 133 F.2d 703 (1943).

n49 People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964); In re Grady, 61 Cal.2d 887, 39 Cal.Rptr. 912, 394 P.2d 728 (1964).

n50 For thoughtful efforts at "defining" religion in the context of litigation, see United States v. Seeger, supra Note 45 (with concurring opinion of Mr. Justice Douglas, 380 U.S. at 188, 85 S. Ct. 850, 13 L. Ed. 2d 733), and Fellowship of Humanity v. County of Alameda, supra Note 47. Further on the question see Comment, Defining Religion: Of God, the Constitution and the D.A.R., 32 U.CHI.L.REV. 533 (1965); Boyan, Defining Religion in Operational and Institutional Terms, 116 U.PA.L.REV. 479 (1968). For recognition that the bona fides of religious professions may properly be litigated, see United States v. Seeger, supra Note 45, 380 U.S. at 185, 85 S. Ct. 850, 13 L. Ed. 2d 733; In re Grady, supra Note 49; People v. Cole, supra Note 42, 113 N.E. at 794.

n51 The Founding Church of Scientology has sued the United States in the Court of Claims for recovery of income taxes paid upon denial of an exemption to the Church under 26 U.S.C. 501(c), Internal Revenue Code of 1954, which exempts a corporation "organized and operated exclusively for religious * * * or educational purposes, * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual * * *." A Commissioner of the Court of Claims has filed an opinion, including findings of fact and recommended conclusion of law, recommending that the court uphold the denial of the exemption (No. 226-61, filed August 7, 1968). The Commissioner found that a large part of the activities of the Founding Church was profit making in nature, and that some of its net earnings inured to the benefit of L. Ron Hubbard.

[**44]

[*1161] Appellants have contended that their theories concerning auditing are part of their religious doctrine. We have delineated in detail the evidence on which this claim is based. Again the Government has not contested this claim; it has not tried to argue or prove, for instance, that even if Scientology as practiced here is a religion, auditing services have been peddled to the general public on the basis of wholly non-religious pseudo-scientific representations. n52 We cannot assume as a matter of law that all theories describing curative tecniques or powers are medical and therefore not religious. Established religions claim for their practices the power to treat or prevent disease, or include within their hagiologies accounts of miraculous cures. n53 In the circumstances of this case we must conclude that the literature setting forth the theory of auditing, including the claims for curative efficacy contained therein, is religious doctrine of Scientology and hence as a matter of law is not "labeling" for the purposes of the Act.

n52 As one thoughtful commentator has noted: "We can only know that a claim is based on religion when we are told that it is. The legal basis for stating that a claim is in the religious domain can be that it is held out as being religious in nature."

And further:

"* * * If a man simply sells bad drugs and defends on religious grounds, we can find his defense insufficient. For we say: first, you failed to define your claims as religious and they were claims of a nature that would not ordinarily be understood as religious; second, holding yourself out as a drug salesman implied that you spoke with medical authority. * * *"

Weiss, Privilege, Posture and Protection: "Religion" in the Law, 73 YALE L.J. 593, 604, 605 (1964).

The distinction between a healer who represents his cure from the first as religious, and one who represents it as medical or scientific but then defends on the basis of religion, is well marked by two New York cases, People v. Cole, supra Note 42 (Christian Science practitioner who cured only by prayer exempt from medical licensing statute), and People v. Vogelgesang, 221 N.Y. 290, 116 N.E. 977 (1917) (Cardozo, J.) ("faith healer" who advertised self as "specialist in all forms of chronic diseases" and who prescribed drugs not exempt).

In this opinion, of course, we imply no view as to whether the District of Columbia medical licensing statute, 2 D.C.CODE 120, 134 (1967), is applicable to appellants' activities.

[**45]

n53 See, e.g., Schneider, op. cit. supra Note 42.

This case was tried before a jury on two charges: that the E-meter was misbranded in that its "labeling" made false or misleading claims concerning the process of auditing in which it was used, and that the E-meter was not accompanied by adequate instructions for its use. The jury returned a general verdict for the Government. During the course of the trial, in an effort to prove the first of these two charges, the Government put into evidence some thousands of pages of Scientology literature, all of which the jury was invited to consider on the issue of misbranding. Through a Government witness, the jury's attention was directed to passages in this literature describing the theories of Scientology as they relate to auditing and claiming curative powers for that process. We have found that, under Ballard, these theories are not properly subject to courtroom evaluation as to truth or falsity. Since the jury's general verdict may have rested in whole or in part on a finding that this literature was false [*1162] or misleading labeling [**46] of the E-meter, that verdict must be set aside.

III

Since our road to this conclusion has been long and complex, we think it appropriate to summarize what we have and what we have not held. We have held the following:

(1) On the basis of the record before us, the Founding Church of Scientology has made out a prima facie case that it is a bona fide religion and, since no rebuttal has been offered, it must be regarded as a religion for purposes of this case.

(2) On the record before us, a prima facie case exists that auditing is a practice of Scientology, and that accounts of auditing integrated into the general theory of Scientology are religious doctrines. Since no rebuttal has been offered, we must take the point as proven.

(3) In view of the constitutional doctrine of United States v. Ballard, supra, literature setting forth religious doctrines, and related to an instrument in the manner in which the "auditing" literature here is related to the E-meter, cannot be subjected to courtroom evaluation and therefore cannot be considered "labeling" of such an instrument for purposes of the "false or misleading labeling" provisions of the Act.

On the other hand, [**47] the following should be noted:

(1) We do not hold that the Founding Church is for all legal purposes a religion. Any prima facie case made out for religious status is subject to contradiction by a showing that the beliefs asserted to be religious are not held in good faith by those asserting them, and that forms of religious organization were erected for the sole purpose of cloaking a secular enterprise with the legal protections of religion.

(2) We do not hold that, even if Scientology is a religion, all literature published by it is religious doctrine immune from the Act.

(3) We do not hold that public health laws in general, or the Food, Drug and Cosmetic Act in particular, have no application to the activities of religion. For instance, it may well be that adulterated foods, drugs or devices used in religious practices can be condemned under the Act. n54 It may be that a drug or device used in religion is subject to condemnation as "misbranded" if its labeling is found to lack, for instance, adequate directions for use, as was charged in this case. n55 Our holding prevents only a finding of false labeling on the basis of doctrinal religious literature.

(4) Finally, [**48] we make no holding concerning the power of Congress to deal generally with the making of false claims by religions deemed injurious to the public health or welfare. The Ballard case of course casts doubt on some aspects of such a power; but this opinion makes only a narrowing construction, in a constitutionally sensitive area, of a statute which has otherwise quite properly been construed broadly by the courts.

n54 See 21 U.S.C. 331(a), 334(a), 341, 351.

n55 See 21 U.S.C. 352(f) (1).

Reversed.

[*1164contd]

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

On Appellee's Petition for Rehearing

PER CURIAM:

From the Government's petition for rehearing in this case, it appears that the following clarifying observations are in order.

I

The Government has correctly inferred from our opinion that a showing that "auditing services [**49] have been peddled to the general public on the basis of wholly non-religious pseudoscientific representations" would support a verdict of false labeling. 133 U.S.App.D.C. 229 409 F.2d at 1161. We gave as further explication of this view a [*1164] passage from Weiss, Privilege, Posture and Protection: "Religion" in the Law, 73 YALE L.J. 593, 604, 605 (1964), and citations to two instructive New York cases, People v. Cole, 219 N.Y. 98, 113 N.E. 790, L.R.A.1917C, 816 (1916), and People v. Vogelgesang, 221 N.Y. 290, 116 N.E. 977 (1917). Our basic point is that, in order to raise a religious defense to a charge of false statement (here misbranding), the person charged with the alleged misrepresentation must have explicitly held himself out as making religious, as opposed to medical, scientific or otherwise secular, claims.

The Government now argues that there was sufficient evidence in the record to permit the jury to find false labeling on the basis of "wholly non-religious pseudo-scientific representations." In the thousands of pages of Scientology literature introduced at trial, it finds passages which appear to be based on secular rather than religious claims, such as the [**50] claim that Scientology is "a precise and exact science, designed for an age of exact sciences," and that "no other subject on earth except physics and chemistry has had such grueling testing (proofs, exact findings)." n1

n1 In our main opinion, we have already noted that some claims made on behalf of the E-meter and the auditing process, and introduced into evidence at trial, had no discernible relation to whatever religious content Scientology might have. See 133 U.S.App.D.C. 229 409 F.2d at 1158, n. 39 and n. 40.

This argument misconceives the ground upon which we reversed. We did not find insufficient competent evidence to support a verdict, nor did we find that all literature submitted to the jury as "false labeling" was religious doctrine. Rather we found that some of that literature was at least prima facie religious doctrine, and that the jury, as it was instructed, n2 could have found against the E-meter by finding false statements in "labeling" which was at the same time religious doctrine. [**51] See main opinion, 133 U.S.App.D.C. 229 409 F.2d at 1161. And, of course, where a jury's general verdict may have rested upon grounds improper for First Amendment reasons, a reviewing court will not pause to speculate whether the jury's verdict was actually reached on other, and permissible, grounds. Stromberg v. California, 283 U.S. 359, 367-368, 51 S. Ct. 532, 75 L. Ed. 1117 (1931); Gregory v. City of Chicago, 394 U.S. 111, 89 S. Ct. 946, 22 L. Ed. 2d 134 (1969).

n2 A tremendous volume of Scientology literature was submitted to the jury, and the jury was charged that if the literature "accompanied" the E-meter in the sense described in the main opinion, 133 U.S.App.D.C. 229 409 F.2d at 1157 it was labeling. Thus there was neither a winnowing out by the judge of the religious material, nor an instruction to the jury that it could not find such material to be false labeling.

It is true that no such sifting process and no such instruction was requested by appellants. Appellants framed their First Amendment point in more broadside fashion as described in the main opinion, 133 U.S.App.D.C. 229 409 F.2d at 1154. However, even though the narrower Ballard point was never raised in the form of objections to evidence or suggested jury instructions, we regard it as subsumed in the broader free exercise objections actually made. In any case, a denial of First Amendment rights is one of those exceptional instances where an appellate court will notice error in the charge even where no objection is made at trial. 5 J. MOORE, FEDERAL PRACTICE para. 51.04 (2d ed. 1968); Shokuwan Shimabukuro v. Higeyoshi Nagayama, 78 U.S.App.D.C. 271, 273, 140 F.2d 13, 15, cert. denied, 322 U.S. 755, 64 S. Ct. 1270, 88 L. Ed. 1584 (1944).

[**52]

II

In its petition, the Government finds unclarity in our failure to state whether or not a second trial may follow in this case. Of course, it is not within our power authoritatively to declare the res judicata effect of our own decision. However, since the basis of our reversal was that the case was improperly framed, rather than that the Scientologists' devices and literature were absolutely protected, [*1165] or that the evidence was insufficient, it would appear that a new trial would be in order.

If a new trial does follow, a further observation may be helpful. We have held that as a matter of statutory construction compelled by the constitutional doctrine of United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944), religious claims cannot be found "false labeling" within the meaning of the Food, Drug and Cosmetic Act. Thus it is incumbent on the trial judge to rule in the first instance whether each item of alleged false labeling makes religious claims and hence cannot be submitted to the jury for the factual determinations of whether it is a label for the device in question and whether it is false. n3 See Jacobellis v. Ohio, 378 U.S. 184, [**53] 187-188, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964).

n3 With respect to this item-by-item determination, the inquiry should be whether that item puts forward its allegedly false claims respecting the E-meter or auditing on a "wholly non-religious" basis. Of course, this does not preclude a finding that an item (book, pamphlet, advertising flier) makes out a self-sufficient non-religious claim for Scientology services, to which a religious appeal has been merely tacked on.

Finally, it should be noted that the Government up to this time, including its motion for rehearing, has not challenged the bona fides of appellants' claim of religion. In the event of any new trial, as indicated in the panel opinion, it would be open to the Government to make this challenge. If the challenge is made successfully, the First Amendment question would, of course, disappear from this case. See United States v. Kuch, D. D.C., 288 F. Supp. 439 (1968).

Circuit Judge McGOWAN does not join in this clarification of the majority [**54] opinion, and continues to adhere to his dissenting opinion.

DISSENTBY: McGOWAN

DISSENT: [*1162contd]

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

McGOWAN, Circuit Judge (dissenting):

At the trial in the District Court, the Government put in evidence from which, in my view, a jury would be warranted in finding that (1) the practice of the asserted religion of Scientology involved the use of a mechanical device in association with certain publications which represented the device to have utility in the prevention, relief, or cure of physical illnesses such as cancer, and (2) the device in fact had no such capacity. The majority, as I understand it, holds that, because the Government did not go further and prove that Scientology was not a bona fide religion, the First Amendments, as interpreted in United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944), bars any judicial inquiry whatsoever into whether the device had the healing powers claimed for it. Absent such a determination, the [*1163] majority logically [**55] concludes that a judgment that the device is misbranded can not be upheld.

This proceeding did not involve an inquisition into the validity of any personal religious beliefs, or the infliction of a punishment upon any person for holding or disseminating such beliefs. It was a proceeding against property under a Congressional statute aimed at protecting the unsophisticated against not only wasting their money but, more importantly, endangering their lives by relying upon misbranded machines. There is, as the majority points out, a well-recognized distinction between the good faith holding of a religious belief, however bizarre, and unlimited freedom to implement that belief by conduct. I do not believe that the Government was required, at least in a statutory in rem proceeding of the kind here involved, to show that, over and above the misbranding of the device, the religious pretensions of its sponsors were fraudulent.

I respect the difficulties my colleagues have with the Ballard case, but I do not think it compels the result they reach. That was a criminal prosecution for mail fraud of an individual who proclaimed as a religion the fact that he was a "divine messenger" [**56] endowed by the appointment of "St. Germain" with the power to cure all diseases. The case, at least in its then posture, did not involve a practice of giving healing treatments for hire, much less the sale and use of devices like the meters with which we are concerned here. To the extent that there are expressions in Ballard that may conceivably point in the direction the majority goes, I would limit them to the peculiar facts of that case, which, to repeat, did not involve the use of misbranded devices and did result in criminal proceedings against the persons there involved.

I am not, however, satisfied that the Government officials did not sweep too broadly in this seizure. The meters are vulnerable to seizure only if they are misbranded, and the misbranding here must be found in separate, but associated, pieces of literature. The record before us is such as to support a finding that certain items of the Scientology literature did contain healing claims (i.e, "Cancer has been eradicated by auditing out conception and mitosis"); and that the association of these claims with the meter is sufficiently close as to justify the latter's seizure. But this relationship in the case [**57] of one or more books or pamphlets would not necessarily mean that all the Scientology literature is subject to confiscation. Every aspect of the practice or preaching of a religion cannot be interfered with simply because one phase of it is exposed to legal action.

The District Court was at some pains to identify those items of literature which effected misbranding of the meters, and those which did not. It is not clear to me that this separation was uniformly successful in differentiating affirmations of faith, on the one hand, from representations as to the curative capacities of the meters, on the other. Indeed, it may be that, absent a special showing of need beyond that for evidentiary use, the Congressional purposes are exhausted by a seizure and permanent retention of the devices alone. Certainly, as a practical matter, the objectives of the statute would normally be realized thereby, and difficult problems of religion and speech, inherent in the wholesale seizure of printed matter, avoided.