Subject: ARTICLE: "Fair Game": Leveling the Playing Field in Scientology Litigation 
J.P. Kumar

The Review of Litigation 
Summer, 1997 
16 Rev. Litig. 747 
LENGTH: 11647 words 

SUMMARY: 

. In the arena of religious litigation, the past twenty years have shown no litigant more fearsome or intimidating than the Church[sic] of Scientology. 

. In fact, victory is irrelevant to the success of this tactic. ... Dismissal and summary judgment represent additional tools that the trial judge can employ to curb abuses of the legal system by zealous litigants such as the Church[sic] of Scientology. ... New York law shifts the burden of proof to the filer of the SLAPP suit in both motions to dismiss and summary judgment. ... Reliance on summary judgment alone may not attack the problem early enough to relieve the burdens on many individual plaintiffs. ... As mentioned above, discovery represents a particularly potent opportunity for a party with considerable resources to devastate a less powerful opponent. 

. The elements of this claim are (1) an "ulterior motive;" (2) wrongful use of process; and (3) proximate causation of damage or harm. 

. Although the California courts have included malicious conduct in the pursuit of cross-claims within the purview of the malicious prosecution tort, this rule fails to address the myriad of malicious defense tactics, applying "only to the affirmative assertion of bad faith counterclaims 

. [and not] to strictly defensive tactics such as oppressive discovery and other delaying tactics." ... 

TEXT: [*747] 

I. 

Introduction 

In the arena of religious litigation, the past twenty years have shown no litigant more fearsome or intimidating than the Church[sic] of Scientology. Whether defending against claims of abuse and fraud, pursuing individuals for defamation or copyright infringement, or even litigating against government agencies, the Church[sic] has acquired [*748] a well- deserved reputation for extremely aggressive litigation tactics, commonly referred to as "hardball." n1 

Much to the Church's[sic] chagrin, opponents frequently cite its own founder, L. Ron Hubbard, for the "fair game doctrine," a revealing statement that may explain the ferocity and zeal of the organization's litigation stance. n2 Hubbard, who issued directives for the Church[sic] on virtually every matter, once wrote that enemies "may be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist [and] may be tricked, sued, or lied to, or destroyed." n3 The Church[sic] itself claims that the command only meant that those who left the Church[sic] would not be protected from outsiders and argues that Hubbard retracted this declaration in the 1960s anyway precisely because of this widespread misinterpretation. n4 However, the following clause about litigation in particular is attributed to Hubbard: 

The only way to defend anything is to attack, and if you ever forget that, then you will lose every battle you are ever engaged in, whether it is in terms of personal conversation, public debate, or a court of law . The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway ... will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly. n5 

Whatever the Church's[sic] official policy on perceived enemies and actual opponents, there is little question that the Church[sic] has practiced a confrontational litigation strategy that has frustrated judges as well as opponents. 

The Church's[sic] approach and the nature of the litigation in question has presented the legal system with the perplexing problem of accommodating clashing interests of constitutional magnitude. First, the involvement of the Church[sic] of Scientology as a party may implicate the concerns of the Religion Clauses of the First Amendment, which, in conjunction with the Fourteenth Amendment, [*749] prohibit state and federal governments from either impermissibly burdening the free exercise of religion or from promoting the establishment of religion. n6 Second, the Church's[sic] frequent forays into defamation and intellectual property to attack critics or prevent publication of internal information have raised important First Amendment issues of freedom of speech. Finally, the combativeness of the Church[sic] has challenged the ability of the legal system to maintain impartial control over legal proceedings and to function in an orderly and efficient manner. This Note aims to examine the problems that have arisen in typical Scientology cases and to discuss various ways to restore balance and order to these cases at the outer edge of religious litigation. 

This Note will avoid an evaluation of the substantive merits of the litigation by and against the Church[sic] of Scientology. In order to do so, this Note will first proceed on the assumption that the Church[sic] of Scientology is indeed a legitimate church for legal purposes, avoiding the threshold controversy that has animated much of the public discussion of this organization. Second, the Note will assume the validity of each of the purposes driving the aforementioned clashing interests and leave the balancing of them to the courts. 

II. 

Litigation Tactics 

A. 

Relentless Litigation 

Perhaps the most obvious feature of the Church[sic] of Scientology's use of the legal system is the sheer volume of litigation initiated by the Church[sic] in both offensive and defensive situations. In 1991, Time magazine reported that the Church[sic], fueled by an annual litigation budget of twenty million dollars and a team of more than a hundred lawyers, had hundreds of suits pending. n7 With these resources at its disposal, the Church[sic] does not hesitate to resort to litigation in a wide range of situations. Opponents quickly learn that the Church[sic] concedes very little and never surrenders. Even when the Church[sic] does lose in court, it often tirelessly pursues every [*750] possible avenue of appeal, extending cases for years and even decades. n8 In fact, victory is irrelevant to the success of this tactic. n9 Instead, the principal goals are to delay the final resolution of the matter for as long as possible, thereby depleting the resources and stamina of an opponent. n10 

Such a strategy can frustrate the largest of adversaries. Large media defendants and multinational corporations have learned that even a successful battle against the Church[sic] is something of a Pyrrhic victory after the costs of litigation are tallied. Perhaps the best example of this phenomenon is the experience of the federal government. In 1967 the Internal Revenue Service (IRS) revoked the Church's[sic] tax-exempt status, ushering in over twenty-five years of conflict and confrontation between the federal government and the Church[sic]. n11 According to one report, the Church[sic] had seventy-one lawsuits pending against the IRS in 1991. n12 In one such case, Miscavige v. IRS, n13 the Church[sic] revealed one especially potent weapon in its legal arsenal: burying even the best-financed adversary in paper. In this case, the Church[sic] required the government to create an index of 52,000 pages of documents. n14 In another example of the success of this tactic, a joint effort between the IRS and the Federal Bureau of Investigation to bring a racketeering case against the Church[sic] reportedly lost momentum because the Justice Department feared the massive expense of endless litigation with the Church[sic]. n15 

The litigation strategy of the Church[sic] is even more effective against individual opponents who do not possess the resources to [*751] endure years of exhausting legal battles. In this sense, the Church's[sic] activities can be analogized to a legal phenomenon that has attracted considerable attention, the Strategic Lawsuit Against Public Participation or SLAPP. A SLAPP has been defined as a "civil complaint or counterclaim ... filed against non-governmental individuals and/or groups ... because of their communications to a governmental body, official, or the electorate ... on an issue of some public interest or concern." n16 Typical examples include suits by real estate developers against community activists or by county officials against vocal citizen opponents. While many Scientology cases fall outside the strict definition set forth above, SLAPP suits may nevertheless provide a useful model in evaluating the Church's[sic] litigation against individuals. n17 

Examples of the legal efforts of the Church[sic] against individuals are legion. After former Church[sic] member Larry Wollersheim received a thirty million dollar verdict in 1986 for his claim of intentional infliction of emotional distress, the Church[sic] devoted vast amounts of money and energy to overturning the verdict, exploring every possible route from remittitur of punitive damages to accusations of judicial bias to charges of racketeering against Wollersheim's attorneys and expert witnesses. n18 The Church[sic] has managed to reduce the jury verdict substantially, but has not succeeded in reversing the judgment. n19 

Many of the Church's[sic] suits against individuals feature a primary substantive weapon of the Church[sic]: the defamation suit. Public criticism has never found a receptive ear in the Church[sic], and many who have attacked the Church[sic] have often found themselves [*752] defending against claims of libel. For example, after Time published a highly critical cover story on Scientology in 1991, the Church[sic] responded with a massive libel suit claiming $ 416 million in damages. n20 By July of 1996, all counts of the libel suit had been dismissed. n21 The Church[sic] also sued to enjoin Reader's Digest from publishing a version of the Time story in Europe. n22 Although Reader's Digest disregarded a court order and published anyway, the order was subsequently vacated; n23 nevertheless, the Church[sic] filed a libel claim against Reader's Digest for fourteen thousand dollars in damages. n24 In yet another example, the Church[sic] sued an Eli Lilly executive for twenty million dollars in punitive damages after he authored an editorial in USA Today that described Scientology as a commercial enterprise rather than a church. n25 Again, a court dismissed the case, citing insufficient proof of actual malice against a public group like the Church[sic]. n26 

B. 

Prevention of Public Disclosure of Church[sic] Information

Scientology has taken special care to prevent the publication of Church[sic] scripture and other internal information. Much of the allure for new devotees of the Church[sic] is the promise of secret knowledge that is dispensed to members gradually as they ascend through the Church[sic] hierarchy. n27 As a result, the Church[sic] perceives a threat to its very survival in the revelation of this information either by former members or by probing outsiders. This fact partially explains the vehemence with which the Church[sic] conducts litigation against former high-ranking members, but the Church's[sic] involvement in litigation has sometimes increased the risk of public disclosure of this information during discovery. In Church[sic] of [*753] Scientology v. Fishman, a libel suit against a former member, Church[sic] documents actually became unsealed public records at a Los Angeles federal courthouse. n28 When the threat of public revelation arises, the Church[sic] usually acts promptly to curtail widespread dissemination and often demands guarantees of nondisclosure in settlements with former members. n29 Sometimes the preventative campaign includes more immediate and unusual measures. In the Fishman case, the Church[sic] reportedly sent members to continuously check out the materials and block public access to the files. n30 

In preventing the public disclosure of internal information, the Church[sic] has resorted to a second area of substantive law - intellectual property - to serve its interests. In many cases, the Church[sic] has successfully pursued immediate injunctive remedies available under copyright, trademark, and trade secrets law, invoking the most potent capabilities of judicial power and law enforcement to further its goals. n31 Even in cases where confidential information has become available, the Church[sic] has sought to prevent widespread publication. Recently, the Church[sic] has become alarmed over the posting of internal documents and Church[sic] scripture on sites on the World Wide Web and on widely read discussion groups. n32 Asserting a proprietary interest in the information, the Church[sic] has actively sought relief in the courts, with the impact of the Church's[sic] legal assault even extending across national borders. In early 1995, the Church[sic] filed a complaint in Los Angeles and induced police in [*754] Finland to serve a search-and-seize warrant on a provider of anonymous Internet access in order to obtain the real name of a user alleged to have stolen Church[sic] files and posted them on the Internet. n33 A raid on Glendale, California home of Dennis Erlich, a former Scientology official, followed. n34 Similar raids on the homes and offices of alleged Internet posters in Virginia and Colorado occurred in August of 1995, resulting in the seizure of information and equipment. n35 In the California case the Church[sic] sued Erlich for copyright infringement and Netcom, Erlich's Internet access provider, for contributory infringement. n36 Ultimately, Netcom settled the case, agreeing to institute a procedure for withholding potentially infringing material while it investigates the copyright claim. n37 In the Virginia case the court held former Scientologist Arnaldo Lerma liable for copyright infringement, but awarded only $ 2500 in damages. n38 Notably, the Church[sic] has had little actual success in preventing disclosure of the information at issue. While a decision in the Erlich case is pending, judges in Colorado and Virginia have ordered the return of seized materials with an injunction against making further copies. Not surprisingly, the Church[sic] has appealed both rulings. 

Despite the dramatic and highly visible victories over individual Internet infringers, the Church[sic] has had little success in actually preventing disclosure of the information at issue. The silencing of individual posters occurred too late to stop computer users around the world from copying the information and haphazardly posting it on the Internet, most notably on the Usenet discussion group, alt.religion.scientology. n39 

[*755] 

C. 

Attacking Credibility 

Finally, one of the most controversial features of Scientology litigation is the Church's[sic] vehement attacks on the credibility and character of opponents, lawyers, and even judges. According to a number of Scientology critics, these attacks have run the gamut from legal avenues, such as formal allegations of bias or misconduct or courtroom accusations against parties and witnesses, n40 to extralegal activities such as picketing, paid advertising, and private investigations of opponents. n41 One common tactic is to uncover or accuse individual adversaries of criminal activity. n42 Scientologists explain that the enemies of the Church[sic] "usually have hidden or stored away some kind of criminality ... that sort of compels them to act the way they do." n43 As a result, the Church[sic] devotes considerable energy to tracking down evidence of criminal behavior. n44 Lawyer and perennial Church[sic] opponent Ford Greene has claimed the Church[sic] publicized Greene's arrest record, staked out his law office, and filed several complaints with the California State Bar over, among other things, Greene's failure to practice under his actual first name. n45 Greene and many other opponents of Scientology charge that the Church[sic] routinely crosses the line from aggressive tactical maneuvers to blatantly illegal campaigns of harassment. n46 

Additional examples of this strategy are not wanting. Time reported that in response to the publication of a highly critical series of articles by the Los Angeles Times in 1991, the Church[sic] displayed, on billboards around Los Angeles, the names of the reporters along [*756] with quotations selected out of context to depict Scientology in a positive light. n47 Richard Behar, author of the article on the Church[sic] in Time, contends that "at least 10 attorneys and six private detectives were unleashed by Scientology and its followers in an effort to threaten, harass, and discredit me." n48 Perhaps the most outrageous example is the case of a journalist, Paulette Cooper, who penned a critical book on Scientolology in 1971. Cooper was subsequently indicted in 1973 of threatening to bomb the Church[sic], but eventually was exonerated in 1977 when the FBI uncovered evidence that the Church[sic] forged the threatening letters at issue. n49 

Finally, the Church[sic] has not exempted judges from its efforts. In the conspiracy trial of Church[sic] members accused of stealing government documents, the Church[sic] forced the recusal of several judges in the D.C. Circuit with allegations of bias. n50 An article in American Lawyer reported that in one instance, counsel for the Church[sic] accomplished the disqualification by informing the judge of the Scientologists' own efforts to uncover damaging information about him and thereby causing the judge to appear biased against them. n51 Another judge withdrew with medical problems after constant attacks from Church[sic] lawyers and the emergence of rumors that the judge solicited a prostitute. n52 

More recently, in the Wollersheim case, the Church[sic] has attempted to overturn the unfavorable verdict by alleging that Los Angeles Superior Court Judge Ronald Swearinger was biased. n53 The Church[sic] charged that the judge suspected the Scientologists of harassment, intimidation, and even killing his dog; n54 according to the Church[sic], court personnel communicated the judge's sentiments to the jury and thus tainted the verdict. n55 In another recent case, federal District Judge James Ideman withdrew from a Scientology [*757] case, citing his "state of mind" after continuous "misconduct" by counsel for the Church[sic]. n56 

III. 

Potential Solutions 

In discussing the options available to those facing the array of legal weapons described in Part I, a few important analytical points are in order. First, many of the alternatives discussed below tend to be primarily responsive, rather than preventative, in nature. Sanctions, countersuits, discovery mechanisms, and accelerated summary judgment or dismissal procedures all represent potential reactions to the aggressiveness of the Church[sic] at various stages of a legal proceeding. While all of these measures may, and are intended to, serve a broader deterrent function, they are triggered by particular brands of proscribed conduct in individual cases. Even reforming the substantive law of defamation or intellectual property or adopting a full-scale fee shifting regime involves creating universally applicable measures that change the rules of the game for everyone. 

For its own reasons, whether based on religious dogma, institutional routine, or sheer efficacy, the Church[sic] has elected to pursue a highly aggressive litigation strategy. Still, regardless of how often the Church[sic] and its lawyers step over the line of zealous advocacy into unprofessional or oppressive conduct, any proposal to prospectively curtail the Church's[sic] ability to choose its means of attack or defense seems dangerously overbroad. Thus, while the problems outlined in Part I are ones inescapably posed by the massive efforts of a single litigant, all of these options ignore the identity of the offending party and focus on rooting out the objectionable activity. 

A. 

Sanctions 

A call for sanctions is perhaps the most instinctive response to improper activity in litigation. The notion that a higher authority will swiftly and effectively discipline an unruly opponent is appeal [*758] ing, and in theory at least, several varieties of sanctions are available for this purpose. One brand of sanctions focuses on the attorney, a licensed actor, bound by standards of professional responsibility. Although critical commentaries routinely attribute ultimate responsibility for litigation strategy to the Church[sic], n57 much of the conduct at issue here is necessarily carried out by attorneys. The degree to which the Church[sic] as client is directing the behavior of its attorneys is an open question that may differ from case to case, but sanctioning the lawyers who bring frivolous suits or obstruct discovery may be the most effective means of deterring objectionable behavior in the courtroom. Multiple sources of authority exist for imposing penalties on attorneys. The Model Code of Professional Responsibility instructs lawyers not to "file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." n58 In addition, the Model Code proscribes the filing of suits unless they "can be supported by good faith argument." n59 

Similarly, the Model Rules of Professional Conduct, first adopted by the American Bar Association in 1983, direct lawyers not to "bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law." n60 This standard strengthens the proscription by changing the subjective standard of the Model Code to an objective measure that does not depend on whether the lawyer "knows or it is obvious." n61 In addition, the Model Rules broaden the definition of improper conduct from the mere intent to injure or harass to the pursuit of frivolous actions. n62 The range of punishment for violations of these provisions extends from public reprimand to suspension and disbarment. Thus, these Rules establish a potentially adequate source for disciplining lawyers who overstep the boundaries of professional conduct. 

[*759] Another source of sanctions places the rod in the hands of judges. Most prominently, Rule 11 of the Federal Rules of Civil Procedure establishes a requirement of good faith on all pleadings filed by attorneys and mandates that suits and motions not be brought "for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." n63 Moreover, the Rule obligates attorneys to reasonably investigate the viability of a pleading before signing it. n64 For violations of these requirements Rule 11 allows a trial judge to impose "directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation." n65 

Rule 11 does not exhaust the sources of authority for judicial sanctions. Rule 37 punishes parties for a variety of abuses in discovery. n66 28 U.S.C. 1927 explicitly permits sanctions against attorneys for "multiplying the proceedings in any case unreasonably and vexatiously." n67 Courts have also recognized that federal judges have inherent power to penalize both a party and its attorney for bad-faith behavior such as the filing of a frivolous action or improper conduct in litigation. n68 Finally, states have developed analogous provisions to police courtroom conduct. n69 

The value of sanctions in practice is an open question. First, while some have lauded the potential flexibility of professional discipline, n70 the effectiveness of ethical codes and standards is [*760] blunted by vaguely worded generalities, generous and subjective constructions, conflict with the principle of zealous advocacy, and by frequently lax enforcement. n71 Moreover, reliance on professional discipline to counteract the legal tactics of the Church[sic] may miss the forest for the trees. In light of the legal resources that the Church[sic] has accumulated, punishing an individual attorney in a separate disciplinary proceeding long after the initial offense may satisfy a sense of justice but would likely do little to defeat the Church's[sic] strategy. 

As for judicial sanctions like Rule 11, commentators voice the same criticisms directed at the ethical rules: charitable interpretation and undue leniency. n72 Some observe that the "imposition of judicial sanctions is an expensive and time-consuming process," n73 citing the volume of satellite litigation that springs up around the filing of motions for sanctions. n74 In the case of Rule 11, scholars have observed that recent amendments to Rule 11 n75 weaken the deterrent by making sanctions discretionary, providing for a safe harbor period in which defective pleadings can be withdrawn, and limiting the award of monetary compensation to opposing parties. n76 Finally, one author points out that suits of this nature are rarely so groundless as to fail the standards of Rule 11 because these claims [*761] usually rely on at least marginal interpretations of some demonstrable facts or alleged statements. n77 

Thus, the effectiveness of sanctions in opposing the Church[sic] necessarily depends on the inclinations of the presiding judge. While the apparent unwillingness of many judges to assess such penalties may frustrate Church[sic] adversaries, such hesitancy to deem allegations frivolous may be the most appropriate course of action in many defamation cases. There is no shortage of critical statements about the Church[sic]; whether those statements constitute defamation is another matter altogether and one less susceptible of disposition at the pleadings stage. In addition, the Church[sic] seems to regard the risk of sanctions as an acceptable cost in an ongoing struggle. n78 Against such a mindset sanctions may fail to procure incremental compliance, serving only as a crude instrument to deliver the ultimate blow of dismissal. Finally, it is important to note that repeated motions for sanctions to a reluctant judge are likely only to irritate judge and jury and may lead into an exhausting struggle over an essentially tangential issue - precisely the type of war that the Church[sic] is usually better equipped to fight. Even if a litigant is successful in inducing a court to levy sanctions on the Church[sic] or its attorneys, any ultimate victory may well be of the Pyrrhic variety. 

B. 

DISMISSAL AND SUMMARY JUDGMENT

Dismissal and summary judgment represent additional tools that the trial judge can employ to curb abuses of the legal system by zealous litigants such as the Church[sic] of Scientology. Under the Federal Rules of Civil Procedure, dismissal can occur at the initial stages of litigation if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." n79 Because most suits present at least marginally acceptable claims, the frivolous or coercive aspect of the suit is not [*762] immediately clear. n80 As a result, this route to dismissal is not likely to be useful to most Church[sic] opponents. 

The SLAPP phenomenon, discussed in Part II, has led to legislative initiatives that create a special motion to strike causes of action that restrict rights of public participation. n81 However, as noted, the standard definition of a SLAPP seems to contemplate actions against individuals addressing governmental authorities on some public issue. n82 Scientology litigation, on the other hand, typically relates to critical statements made in or to the media on subjects that may fall outside the rubric of issues of public concern, dealing instead with the internal workings of a private religious organization. California, however, has taken recent steps that may encourage opponents of the Church[sic] to invoke the protection of anti-SLAPP laws. The California anti-SLAPP measure provides: 

A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. n83 

In 1997 the California legislature amended this provision to define "act in furtherance of a person's right to petition or free speech" to include not only petitions to governmental authorities, but also "any other conduct in furtherance of the constitutional right of petition or ... free speech in connection with a public issue or an issue of public interest." n84 The bill further specified that "this section is to be construed broadly." n85 While the constitutional right of petition expressly includes only "the right of the people ... to petition the Government for a redress of grievances," n86 the statutory reference to the right of free speech, coupled with the exhortation to interpret such language broadly, suggests that the statutory protection reaches [*763] beyond mere communication to the government. Still, extending such protection too far poses risks that may outweigh the benefits of defeating SLAPP suits. The law of defamation represents a delicate balance of constitutional interests that favors both the right to bring suit and the free dissemination of ideas. Further insulating speakers from suit, even in the interests of encouraging public debate, may upset that balance and have consequences that the drafters of anti-SLAPP legislation did not anticipate. n87 

Streamlining or accelerating summary judgment proceedings is another increasingly popular means of disposing of litigation of all varieties and may hold particular appeal for those who feel targeted by frivolous suits. New York law shifts the burden of proof to the filer of the SLAPP suit in both motions to dismiss and summary judgment. n88 In 1984, the Colorado Supreme Court announced that motions to dismiss based on the right to petition would be treated as motions for summary judgment in SLAPP suits. n89 In effect, this decision imposed summary judgment at the dismissal stage of the litigation. n90 

Reliance on summary judgment alone may not attack the problem early enough to relieve the burdens on many individual plaintiffs. Summary judgment is generally inappropriate until sufficient discovery has been conducted, but discovery alone may present enough trauma and expense to eliminate the ill-equipped plaintiff. n91 While accelerating and expediting summary judgment proceedings may partly address this concern, the dangers of deterring legitimate suits and infringing on plaintiffs' access to court rise accordingly. 


[*764] 

C. 

Discovery 

As mentioned above, discovery represents a particularly potent opportunity for a party with considerable resources to devastate a less powerful opponent. Protracted battles over compliance, grudging and unsatisfactory disclosures, and monumental requests all present formidable difficulties for an opponent. The California measure obviates much of the problem in SLAPP suits by staying discovery until the motion to strike has been adjudicated. n92 One author commends this approach as "removing much of the intimidation associated with voluminous discovery requests by SLAPP plaintiffs." n93 

Discovery has also been the source of some of the Church's[sic] most vigorous and extreme defensive maneuvers. Because of the Church's[sic] adamant refusal to permit disclosure of its internal operations and substantive doctrines, opponents and critics of the Church[sic] may face a difficult struggle in obtaining information crucial to effective presentation of their cases. Under Rule 37 of the Federal Rules of Civil Procedure and similar state provisions, courts possess formidable power to assess sanctions against parties that obstruct discovery. n94 However, a privilege based on the Religion Clauses of the First Amendment is available for religious organizations in some circumstances. The Supreme Court has held that the Establishment Clause of the First Amendment prohibits courts from entanglement in a Church's[sic] religious decisions on issues of internal discipline, doctrine, or ecclesiastical law, instead requiring deference to Church[sic] authorities on such matters. n95 Specifically, courts must safeguard against goverment involvement if "it is a continuing one calling for official and continuing surveillance leading to an [*765] impermissible degree of entanglement." n96 In addition, the Court has declared that courts may not evaluate whether the teachings of a religious organization are in fact religious. n97 However, where no danger of lasting government surveillance exists and no need to assess elements of doctrine or internal discipline arises, the Court has authorized a second approach that permits the application of "neutral principles of law." n98 Moreover, the Court has made clear that the risk of entanglement is absent in "purely secular disputes between third parties and a particular defendant ... in which fraud, breach of contract, and statutory violations are alleged." n99 

Under the Free Exercise Clause, the Court has emphasized that the key element of such a violation is the coercion of individual religious liberty. n100 In defining protected religious freedom, however, the Court has distinguished between the freedom to believe and the freedom to act: 

The first is absolute, but the second remains subject to regulation for the protection of society .... Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. n101 

In the conduct of discovery into religious material, free exercise violations might exist in the use to which discovered religious [*766] records could be put and in the actual act of compelling the disclosure of those records. n102 

Ultimately, the Establishment Clause restrictions on discovery seem to offer little protection to the Church[sic] in the majority of these cases. Because much of the current Scientology litigation pits the Church[sic] against private third parties, rather than against other factions within the Church[sic], there is little need for a court to defer to the decisions of an internal religious authority. The Establishment Clause might be more relevant where litigation brought by the government threatens the kind of ongoing monitoring that the Court has repeatedly decried. As for the Free Exercise Clause, courts have not shown much sympathy for such claims in discovery. n103 In Church[sic] of Scientology International v. Fishman, the Ninth Circuit rejected the Church's[sic] reliance on both the Establishment and Free Exercise Clause to resist discovery. n104 Some commentators, however, argue that compelled disclosure might violate the right to free exercise where an individual is under a religious duty not to reveal sacred texts or documents. n105 This example is particularly appropriate in the case of the Church[sic], which adopts extreme measures to defeat efforts to disclose its central doctrines. In addition, because public disclosure of confidential Church[sic] information would nullify some of the appeal of membership, the Church[sic] might also contend that discovery and the resultant disclosure would unnecessarily burden its very ability to survive as a religion. This argument, however, is unlikely to evade discovery entirely because courts are able to shield sensitive information from public view by means of stringent protective orders by which the identity of those with access to the information and the purposes for which such [*767] material may be used are strictly prescribed. n106 The drawback of this method is that it severely circumscribes the usually honored public right of access to information in legal proceedings, but it is nevertheless widely used in litigation involving competitive businesses and would seem to accommodate the interests of both litigants in these cases. 

D. 

Countersuits 

Yet another potential remedy is to empower the targets of legal attacks to respond in kind. Parties are free to file conventional civil claims, such as defamation or intentional infliction of emotional distress, against the Church[sic], and these claims are usually the only options in cases of noncriminal, extralegal measures unrelated to litigation, such as picketing, advertising, and private investigation. A great deal of the activity described in Part II-C must be confronted in this manner, if at all. Objections about the cost, hassle, and ineffectiveness of litigation are futile in this area because the court in the original action simply has no power to address these issues. By contrast, the following remedies supply ways in which to combat the institution of litigation itself. Many of these notions, commonly articulated in the SLAPP context, often are grouped as SLAPP-back options. n107 

Probably the most common substantive claim is malicious prosecution. Under this action, the plaintiff generally must demonstrate the following elements: 

1. the defendant was actively involved in the institution of the original action; 

2. the first proceeding terminated favorably for the plaintiff; 

3. the defendant had no probable cause for the original suit; 

4. the defendant instituted the first action with malice or for an improper purpose; and 

[*768] 5. the plaintiff suffered cognizable damages. n108 

The defendant does have a defense based on good faith reliance on advice of counsel. n109 

The legal standard presents a number of hurdles for a potential plaintiff. First and foremost, the plaintiff must achieve some sort of favorable result in the initial suit. n110 Plaintiffs who succumb to a malicious prosecution and are not vindicated have no resort under this theory. Even those who triumph in the first action must first survive the protracted war waged by the aggressive opponent and then institute a separate suit. n111 In response to this latter concern, some commentators advocate that malicious prosecution be available as a counterclaim in the original action, thereby eliminating the delay and expense inherent in the current scheme; n112 however, this remedy is problematic. n113 The requirement of a favorable termination poses significant obstacles to the maintenance of the second action, and the simultaneous proceedings present the risks of jury confusion and prejudice against an original plaintiff. n114 A second major concern for the target of the first trial is the very prospect of additional litigation. n115 Deciding whether a claim of malicious prosecution is a counterclaim or separate action necessarily involves an additional contribution of time and expense. n116 Thus, while the option may very well be attractive to institutional litigants - such as the media entities that are often the subject of Scientology's efforts - the exhausted individual will not perceive any merit in this course of action. Finally, the remedy [*769] again does little to counteract the intended results of the initial litigation: delay, frustration, and harassment. 

Another option for countersuit is abuse of process. This cause of action involves "using an otherwise proper or legitimate lawsuit for some improper, collateral purpose." n117 The elements of this claim are (1) an "ulterior motive;" (2) wrongful use of process; and (3) proximate causation of damage or harm. n118 The defendant must have wielded the first action to threaten or extort. n119 Unlike with a malicious prosecution claim, the merits of the first action are irrelevant to an abuse of process claim; n120 instead, the claim punishes the use of valid process in improper ways. The plaintiffs do not need to obtain a favorable termination of the first action in order to bring suit. n121 Thus, an abuse of process claim is attractive where the first action had enough legitimacy to survive the low bar of malicious prosecution. Nevertheless, the action is vulnerable to the same complaints: it requires additional litigation and it fails to cure the harm inflicted by the original litigation. 

One concern about the available countersuit options is that they offer little opportunity for plaintiffs to challenge the abusive and malicious actions of defendants. n122 Although the California courts have included malicious conduct in the pursuit of cross-claims within the purview of the malicious prosecution tort, n123 this rule fails to address the myriad of malicious defense tactics, applying "only to the affirmative assertion of bad faith counterclaims ... [and not] to strictly defensive tactics such as oppressive discovery and other delaying tactics." n124 Abuse of process is likewise too narrow a cause of action to effectively counteract the full range of improper [*770] defense strategies. n125 Consequently, one author proposes outright recognition of a tort of malicious defense. n126 This tort, similar to the action for malicious prosecution, would penalize defensive actions "without any credible basis" and "for a purpose other than that of securing the proper adjudication of the claim and defense." n127 While this proposal would provide a remedy for plaintiffs damaged by Scientology defense tactics, it would still bear the common flaws of involving additional litigation and failing to prevent the delay and expense of the original litigation. In addition, recognizing a tort of malicious defense might abridge the right of the Church[sic] to conduct a vigorous defense. n128 

E. 

Cost Shifting and Attorney Fees 

Other potential solutions involve far-reaching reforms of the legal system. One well-worn scheme for reducing the volume of litigation, known as the English Rule, requires the defeated party to pay for the costs and attorney fees of the victor. n129 As noted in Part III.A., shifting fees and costs is an established form of sanction for violations of Rule 11 and similar provisions. In this situation, advocates reason that this method creates a powerful deterrent to bringing groundless or frivolous suits. n130 A number of state efforts to counteract SLAPPs employ devices of attorney fees, cost shifting, and compensatory damages. n131 New York permits recovery of attorney fees and costs when the target of a SLAPP can demonstrate that the suit "was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law." n132 

[*771] Critics contend that the true effect of this proposal would be to intimidate individual plaintiffs with limited resources and to compel contingency fee attorneys to reject most plaintiffs' cases. n133 In addition, assuming it would be desirable to curtail the ability of Scientology to litigate, it is not clear this idea would accomplish that goal. Scientology has already proven itself quite willing to expend vast sums on litigation. Moreover, the Church's[sic] strategy of exhausting opponents with contentious litigation and endless paperwork might, under such a system, assume an even more prominent role by avoiding an ultimate resolution and instead postponing litigation for years until the opposing party simply surrenders from exhaustion. 

F. 

Changes in Substantive Law 

One reason lawsuits are easily used to intimidate or harass may relate to flaws in the substantive law of defamation, intellectual property, and First Amendment concerns. If this is true, changes in the legal standards of these areas may be the most effective way to stem abuse of the courts. Modifying the standard of proof applicable in certain libel cases is one proposal that has gained enough currency to appear in recent statutory efforts against SLAPPs. n134 

Application of this model to the Scientology litigation might indeed make it more difficult for the Church[sic] to win these suits; however, this solution ignores the fact that winning is often irrelevant when bringing these suits. Delay and exhaustion of resources could still be accomplished under such a regime. Also, as with the adoption of accelerated summary judgment and dismissal procedures, n135 modifying the substantive law is not a solution to be adopted lightly. While such a change may rectify a tangible problem, it may also have unintended effects that upset the delicate balance of interests reflected in most substantive areas. In this context, by failing to distinguish between the valid and the frivolous, this remedy may unduly hamper the prosecution of legitimate suits by libel plaintiffs. 

[*772] In one arena, the Internet controversy, there may be no alternative to changes in the substantive law. The Church's[sic] actions, while not indicative of a thorough understanding of the novel complexities of the medium, are nevertheless within its rights under existing legal standards. Ease of copying and dissemination of information, the speed of transmission, the decentralized and unregulated nature of the medium, and the irrelevance of national borders all present new challenges for the application and enforcement of intellectual property law. In this particular controversy, it is the legal standards, rather than the conduct of litigants, that need to be re-evaluated in light of the realities of the Internet. 

IV. 

Conclusion 

The aggressive legal strategy of the Church[sic] of Scientology has left its opponents with difficult choices. Despite the claims of systemic abuses, there is simply little that can counter the reality of a determined and well-financed adversary. This hard truth stimulates the call for broader reforms, but these suggested cures pose different and often greater risks to the legal system, wreaking havoc in a hasty attempt to target particular offenders. This idea of targeting the Church[sic] is also troubling. For many who are outraged by the Church's[sic] use of the law, it is easy to forget that however vexing the Church's[sic] efforts might be, its right to seek redress in the courts is one that cannot be justifiably or feasibly abridged. Instead, the solution has to lie with the courts on a case-by-case basis. While the Church must remain free to resort to the legal system, trial judges possess the power to maintain control of their courtrooms, to broadly construe and vigorously police the requirement of good faith, and to safeguard the integrity of the legal process. In the event of misconduct, they must be willing to exercise that power without hesitation or fear of reflexive reversal. Instead of turning to sweeping institutional reforms, litigants, the legal system, and the public must rely on trial judges to preserve fairness, equity, and order in their domain. 

NOTES

n1. See Steven Pressman, Litigation Noir, Cal. Law., Dec. 1994, at 40. 

n2. See id.; Richard Behar, The Thriving Cult of Greed and Power: Ruined Lives. Lost Fortunes. Federal Crimes., Time, May 6, 1991, at 50, 56; Andrew Blum, Church's[sic] Litany of Lawsuits: Scientology's Leaders Say the Best Defense is a Good Offense, Nat'l L.J., June 14, 1993, at 1, 36. 

n3. See Joel Sappell & Robert W. Welkos, On the Offensive Against an Array of Suspected Foes, L.A. Times, June 29, 1990, at A1. 

n4. See id. 

n5. Pressman, supra note 1, at 38 (citing L. Ron Hubbard). 

n6. U.S. Const. amends. I, XIV. 

n7. Behar, supra note 2, at 56. 

n8. See Blum, supra note 2, at 1, 36 (illustrating, through Wollersheim v. Church[sic] of Scientology, 260 Cal. Rptr. 331 (Cal. Ct. App. 1989), how the process can drone on through the trial and appellate courts). 

n9. See Behar, supra note 2, at 56 (quoting Hubbard's statement that "the purpose of the suit is to harass and discourage rather than to win"). 

n10. The Church[sic] itself insists that its involvement in litigation is diminishing. Blum, supra note 2, at 36. While such a statement is difficult to quantifiably assess, the recent flurry of legal activity over Internet issues alone seems to suggest otherwise. 

n11. For an exhaustive and controversial account of the Church's[sic] long struggle against, and eventual victory, over the IRS, see Douglas Frantz, Scientology's Puzzling Journey from Tax Rebel to Tax Exempt, N.Y. Times, Mar. 9, 1997, at A1. 

n12. Behar, supra note 2, at 56. 

n13. No. 1:91-CV-1638-RHH, 1993 WL 389808 (N.D. Ga. June 15, 1992). 

n14. See Behar, supra note 2, at 56. 

n15. See id. 

n16. George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 8 (1989). 

n17. See infra Part III.B. 

n18. See Blum, supra note 2, at 36. The Wollersheim matter has produced an astonishing number of court opinions and rulings. The primary appellate opinion is Wollersheim v. Church[sic] of Scientology, 260 Cal. Rptr. 331 (Cal. Ct. App. 1989), vacated, 499 U.S. 914 (1991) (remanding to consider excessive punitive damages award). Religious Technology Center v. Wollersheim, 971 F.2d 364 (9th Cir. 1992), is the record of the Ninth Circuit's dismissal of the Church's[sic] charge that Wollersheim, his attorneys, and his expert witnesses violated racketeering laws by acquiring stolen documents. 

n19. Wollersheim v. Church[sic] of Scientology, 6 Cal. Rptr. 2d 532, 547 (Cal. Ct. App. 1992) (reducing the award of punitive damages to two million dollars). 

n20. See Blum, supra note 2, at 36. 

n21. See Abstract, N.Y. Times, July 17, 1996, at D3, available in 1996 WL 7515112. 

n22. See A Litany of Scientology Litigation, Nat'l L.J., June 14, 1993, at 38. 

n23. See id. 

n24. See id. 

n25. See id. 

n26. Church[sic] of Scientology Int'l v. Daniels, 992 F.2d 1329, 1334- 35 (4th Cir. 1993). 

n27. See Behar, supra note 2, at 50-51. 

n28. See Eric J. Ascalon, Dangerous Science: The Church[sic] of Scientology's Holy War Against Critics, Am. Jurist, P19, (Nov. 1995) <http://sss2.thecia.net/users/rnewman/scientology/media/amjurist .html>; Wendy M. Grossman, alt.scientology.war, Wired, Dec. 1995, at 173, 252. 

n29. See William W. Horne, The Two Faces of Scientology, Amer. Law., P 39 (July 1992) <http://www2.thecia.net/users/rnewman/scientology/media/amlawyer- 7.92>; Pressman, supra note 1, at 42. 

n30. See Ascalon, supra note 28, at P19; see also Jay Mathews, Scientology Winning in Court: Mainstream Groups Help Support Church's[sic] Fight for Legitimacy, Wash. Post., Dec. 1, 1985, at A4 (reporting a similar measure taken in the Church's[sic] suit against the Los Angeles Times). 

n31. See Grossman, supra note 28, at 252 (recounting the Church's[sic] use of injunctive power); Sappell & Welkos, supra note 3, at D2 (describing the Church's[sic] copyright infringement claim against a British biographer of L. Ron Hubbard before the book had even been released). 

n32. For a thorough account of the battles between the Church[sic] and various groups and individuals on the Internet, see generally Grossman, supra note 28. 

n33. See id. at 250. 

n34. See id. at 251. 

n35. See id. at 174. 

n36. See Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1372-75 (N.D. Cal. 1995) (denying summary judgment because Netcom could be liable for contributory infringement if knowledge of the infringement can be shown). 

n37. See Netcom, Scientologists Settle Suit over Internet Postings, L.A. Times, Aug. 8, 1996, at D2, available in 1996 WL 11255950. 

n38. See Bill Tammeus, Copyright Laws and the Internet, Kan. City Star, Oct. 22, 1996, available in 1996 WL 2444107. 

n39. See Grossman, supra note 28, at 252. 

n40. See, e.g., James B. Stewart, Jr., Scientology's War Against Judges, Amer. Law., Dec. 1980, at 30, 30-32 (discussing Scientology's attacks on judges in the D.C. Circuit in the late 1970s); Blum, supra note 2, at 1, 36 (exploring the allegations of judicial bias in the Wollersheim trial and the Church's[sic] accusations of racketeering and conspiracy against Wollersheim's lawyers and witnesses). 

n41. See, e.g., Ascalon, supra note 28; Behar, supra note 2, at 56; Pressman, supra note 1, at 42. 

n42. See, e.g., Behar, supra note 2, at 56; Pressman, supra note 1, at 41-42; Grossman, supra note 28, at 248. 

n43. Pressman, supra note 1, at 42; see also Sappell & Welkos, supra note 3, at D4 (quoting Hubbard's statement that "we do not find critics of Scientology who do not have criminal pasts"). 

n44. See sources cited supra note 43. 

n45. See Pressman, supra note 1, at 41-43. 

n46. See id. at 42-43. 

n47. See Behar, supra note 2, at 56. 

n48. Id. at 57. 

n49. See id. 

n50. See Stewart, supra note 40, at 30. 

n51. See id. 

n52. See id. at 32. 

n53. See Blum, supra note 2, at 36. 

n54. See id. at 1, 36. 

n55. See id. 

n56. Pressman, supra note 1, at 41. 

n57. See, e.g., Behar, supra note 2, at 56. 

n58. Model Code of Professional Responsibility DR 7-102(A)(1) (1981). 

n59. Id. 7-102(A)(2). 

n60. Model Rules of Professional Conduct Rule 3.1 (1995). 

n61. See id. cmt. 

n62. See id. 

n63. Fed. R. Civ. P. 11(b)(1). 

n64. Id. 11(b). 

n65. Id. 11(c)(2). 

n66. Id. 37. 

n67. 28 U.S.C. 1927 (1994); see John W. Wade, On Frivolous Litigation: A Study of Tort Liability and Procedural Sanctions, 14 Hofstra L. Rev. 433, 471-74 (1986) (discussing the evolution of 1927 as a source of sanction power). 

n68. See, e.g., Roadway Express v. Piper, 447 U.S. 752, 766 (1980); see also Wade, supra note 67, at 471 (exploring the roots of inherent power). 

n69. See, e.g. Tex. R. Civ. P. 13. 

n70. See Byron C. Keeling, A Prescription for Healing the Crisis in Professionalism: Shifting the Burden of Enforcing Professional Standards of Conduct, 25 Tex. Tech. L. Rev. 31, 67-74 (1993) (proposing that the legal profession adopt and enforce carefully tailored codes of professional conduct). 

n71. See Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 Tex. L. Rev. 639, 642 (1981) (criticizing the ambiguity of the Model Rules); John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L. Rev. 395, 416, 420 (1993) (discussing the ineffectiveness of disciplinary rules). 

n72. See, e.g., Barker, supra note 71, at 417-19 (discounting the role of sanctions in deterring SLAPPs); Geoffrey P. Huling, Note, Tired of Being SLAPPed Around: States Take Action Against Lawsuits Designed to Intimidate and Harass, 25 Rutgers L.J. 401, 417-18 (1994) (stating that sanctions provisions remain underutilized); Judith L. Maute, Sporting Theory of Justice: Taming Adversary Zeal with a Logical Sanctions Doctrine, 20 Conn. L. Rev. 7, 26 (1987) (observing the reluctance of trial judges to grant sanctions awards); Carl Tobias, Environmental Litigation and Rule 11, 33 Wm. & Mary L. Rev. 429, 481 (1992) (identifying the lack of rigorous enforcement of Rule 11 as one reason for the proliferation of SLAPPs). 

n73. Keeling, supra note 70, at 45. 

n74. See, e.g., id. at 45 n.90. 

n75. See Fed. R. Civ. P. 11 advisory committee's note. 

n76. See Kyu Ho Youm & Douglas A. Anderson, Media Countersuits in Libel Law: A Statutory and Judicial Framework, 17 Hastings Comm. & Ent. L.J. 383, 410-11 (1995). 

n77. Barker, supra note 71, at 417-18. 

n78. Recently, in Religious Technology Center v. Scott, 82 F.3d 423 (9th Cir. 1996), available in 1996 WL 171443, the Ninth Circuit ordered the Church[sic] to pay $ 2.9 million in attorney fees, declaring that "there is little doubt that RTC is playing "fast and loose' with the judicial system," id. at *10. 

n79. Fed. R. Civ. P. 12(b)(6). 

n80. See Barker, supra note 71, at 417-18. 

n81. Several states have enacted anti-SLAPP measures. See, e.g., Cal. Civ. Proc. Code 425.16 (West Supp. 1997); Ga. Code Ann. 9-11-11-1 (1997); Mass. Gen. Laws ch. 231, 59H (1997). Such laws have been proposed in several other states and in Congress. 

n82. See supra Part II.A. 

n83. Cal. Civ. Proc. Code 425.16 (West Supp. 1997). 

n84. Id. (amended 1997). 

n85. Id. 

n86. U.S. Const. amend. I. 

n87. See Opinion of the Justices (SLAPP Suit Procedure), 641 A.2d 1012, 1015 (N.H. 1994) (declaring in an advisory opinion that a New Hampshire anti-SLAPP measure, akin to the California law, would violate the right to trial by jury guaranteed by the New Hampshire Constitution). 

n88. N.Y. C.P.L.R. 3211-12 (McKinney 1997). 

n89. Protect Our Mountain Env't, Inc. v. District Court, 677 P.2d 1361, 1368-69 (Colo. 1984). 

n90. See Barker, supra note 71, at 408. 

n92. See supra note 76. 

n93. Barker, supra note 71, at 408. 

n91. Id. at 408-12. 

n94. Fed. R. Civ. P. 37; see, e.g., Tex. R. Civ. P. 215. 

n95. See, e.g., Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09 (1976) ("Civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church, but must accept such decisions as binding on them ...."); Watson v. Jones, 80 U.S. 679, 727 (1871) ("Whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these Church[sic] judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final ...."); cf. Walz v. Tax Comm'r, 397 U.S. 664, 674 (1970) (prohibiting an "excessive government entanglement with religion"). 

n96. Walz, 397 U.S. at 675. Compare Surinach v. Pesquera de Busquets, 604 F.2d 73, 78-79 (1st Cir. 1979) (declaring Puerto Rican investigation into Catholic school finances a form of involvement that is ""pregnant with dangers of excessive government direction of Church[sic] schools and hence of churches'" (quoting Lemon v. Kurtzman, 403 U.S. 602, 620 (1971))), with United States v. Freedom Church, 613 F.2d 316, 320 (1st Cir. 1979) (narrowly construing Surinach and enforcing an IRS request for Church[sic] records because the government was merely determining tax-exempt status, not regulating or becoming involved with religious activities). 

n97. See Lemon, 403 U.S. at 620 ("State inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids."); United States v. Ballard, 322 U.S. 78, 86 (1944) (stating that courts may not investigate "the truth or veracity of ... religious beliefs"). 

n98. Jones v. Wolf, 443 U.S. 595, 603 (1979) (holding that courts may decide issues that did not involve doctrinal matters, such as Church[sic] property disputes, through the application of "neutral principles of law"). 

n99. General Council on Finance and Administration of the United Methodist Church[sic] v. Superior Court, 439 U.S. 1355, 1369 (1978). 

n100. See, e.g., Abington Sch. Dist. v. Schempp, 374 U.S. 203, 223 (1963). 

n101. Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). 

n102. See David J. Young & Steven W. Tigges, Discovery and Use of Church[sic] Records by Civil Authorities, 35 Cath. Law. 198, 208 (exploring possible free exercise arguments in resisting discovery of Church[sic] records). 

n103. See, e.g., Ambassador College v. Geotzke, 675 F.2d 662, 664 (5th Cir. 1982) (finding "no free exercise considerations of even arguable validity"); In re The Bible Speaks, 69 B.R. 643, 648 (Bankr. D. Mass. 1987) ("We therefore conclude that there is no First Amendment privilege based upon religious freedom in the context of discovery in this private civil litigation."). 

n104. 35 F.3d 570, 1994 WL 467999, at *2 (9th Cir. Aug. 30, 1994). 

n105. Young & Tigges, supra note 102, at 209. 

n106. See The Bible Speaks, 69 B.R. at 649 (assuring Church[sic] that court stands "ready to issue protective orders"). See generally W. Scott Simmer, Note, First Amendment Interests in Trade Secrets, Private Materials, and Confidential Information: The Use of Protective Orders in Defamation Litigation, 69 Iowa L. Rev. 1011, 1025-32 (1984) (surveying the use of protective orders in a defamation context). 

n107. See Huling, supra note 72, at 411-14 (reviewing varieties of SLAPP-back suits). 

n108. See generally Restatement (Second) of Torts 674-681(B); Barker, supra note 71, at 435-36; Wade, supra note 67, at 437-50. 

n109. See Barker, supra note 71, at 435-36. 

n110. A recent decision of the Illinois Supreme Court in a case involving the Church[sic] allowed a plaintiff to satisfy the favorable termination requirement with a result that falls short of a final adjudication on the merits, such as summary judgment, dismissal, or withdrawal of proceedings. Cult Awareness Network v. Church[sic] of Scientology Int'l, No. 80868, 1997 WL 576327, at *5-7. 

n111. See id. 

n112. See Joseph J. Brecher, The Public Interest and Intimidation Suits: A New Approach, 28 Santa Clara L. Rev. 105 (1988). 

n113. See Barker, supra note 71, at 436-38 (criticizing Brecher's proposal). 

n114. See id. 

n115. See id. 

n116. See id. 

n117. Id. at 433-34; see Wade, supra note 67, at 450-51. 

n118. See Barker, supra note 71, at 433-34. 

n119. See id. 

n120. See id. 

n121. See id. 

n122. See Jonathan K. Van Patten & Robert E. Willard, The Limits of Advocacy: A Proposal for the Tort of Malicious Defense in Civil Litigation, 35 Hastings L.J. 891, 892 (1984). 

n123. See Bertero v. National Gen. Corp., 118 Cal. Rptr. 184, 190-92 (Cal. 1975). 

n124. Van Patten, supra note 122, at 907. 

n125. See id. at 907-08. 

n126. Id. at 923. 

n127. Id. at 923-25. 

n128. See id. at 917. 

n129. See, e.g., Hon. H. Walter Croskey, Litigation Costs: An Economical Path to Court Reform, L.A. Law., Sept. 1985, at 16 (articulating a specific proposal for court reform). 

n130. See id. 

n131. See, e.g., Ariz. Rev. Stat. Ann. 12-341.01 (West 1992); Haw. Rev. Stat. 607-14.5 (1992); Ark. Code Ann. 16-22-309 (Michie 1994). 

n132. N.Y. Civ. Rights Law 70-a(1)(a) (McKinney 1992). 

n133. See Croskey, supra note 129, at 16-17. 

n134. For example, the recent anti-SLAPP statute enacted in New York raises the burden of proof required of SLAPP plaintiffs to one of clear and convincing evidence. N.Y. Civ. Rights Law 76-a (McKinney 1997). 

n135. See supra Part III.B. 

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